STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. ERIC J. SMITH, as
Commissioner of Education, Petitioner,
vs.
DEBORAH CORRIVEAU,
Respondent.
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) Case No. 11-3295PL
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RECOMMENDED ORDER
On March 22-23, 2012, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee and Lauderdale
Lakes, Florida.
APPEARANCES
Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316
Respondent: Melissa C. Mihok, Esquire
Kelly & McKee, P.A. Suite 301
1718 East Seventh Avenue Tampa, Florida 33605
STATEMENT OF THE ISSUES
The issues are whether Respondent is guilty of submitting fraudulent mentoring logs for the 2007-08 and 2008-09 school
years, so as to be guilty of gross immorality or an act of moral turpitude, in violation of section 1012.795(1)(d), Florida Statutes; personal conduct that seriously reduces her effectiveness as a School Board employee, in violation of section 1012.795(1)(g); failing to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B-1.006(5)(a); misrepresenting her professional qualifications, in violation of rule 6B-1.006(5)(g); submitting fraudulent information on a document in connection with professional activities, in violation of rule 6B-1.006(5)(h); or other rule violations identified in the Conclusions of Law. If so, an additional issue is the penalty that should be imposed.
PRELIMINARY STATEMENT
By Administrative Complaint dated December 13, 2010, Petitioner alleged that Respondent holds Florida Educator's Certificate 602076 and, at all material times, taught third grade at Sheridan Hills Elementary School (Sheridan Hills). The Administrative Complaint alleges that, on May 13, 2009, in support of a request for a mentoring stipend of $870 for the 2008-09 school year, Respondent submitted a mentoring log that fraudulently claimed that she had mentored two teachers, Peter Policastro and Sophia Myers, who denied having been mentored by Respondent and were not at school on certain dates on which the mentoring logs claimed that they were mentored. The
Administrative Complaint alleges that Respondent thus violated, section 1012.795(1)(d) and rule 6B-1.006(5)(a) and (h), as cited above.
On September 20, 2011, Petitioner filed a Motion to Amend Administrative Complaint, for which the Administrative Law Judge granted leave by Order dated October 5, 2011. The Amended Administrative Complaint alleges that the conduct described in the preceding paragraph violates additional provisions of law and adds new allegations arising out of a 2007-08 mentoring log that Respondent produced during the deposition of
Mr. Policastro.
The Amended Administrative Complaint alleges that, in support of a request for a mentoring stipend of $10,000 for the 2007-08 school year, Respondent submitted an Effective Teaching Mentoring log, signed by Mr. Policastro, that showed that Respondent had mentored him. The Amended Administrative Complaint alleges that this mentoring log was fraudulent because Respondent never mentored Mr. Policastro during the 2007-08 school year. The Amended Administrative Complaint alleges that Respondent either forged Mr. Policastro's signature or had him sign a blank form that she later filled in with fabricated mentoring activities, unknown to Mr. Policastro.
The Amended Administrative Complaint alleges that the submission of the mentoring logs for the 2007-08 and 2008-09
school years violated the statute and rules identified in the Conclusions of Law.
Based on the Amended Administrative Complaint, as confirmed by statements made by Petitioner's counsel during the final hearing, the alleged wrongdoing during 2007-08 is limited to the mentoring of Mr. Policastro, and the alleged wrongdoing during 2008-09 is limited to the mentoring of Mr. Policastro and
Ms. Myers. Based on the Amended Administrative Complaint, the 2007-08 alleged violation is limited to mentoring for what is identified below as the "Title I program," and the 2008-09 violation is limited to mentoring for what is identified below as the "Broward Guild program."
The limitation of the 2008-09 violation to the Broward Guild program is clear in the Administrative Complaint and Amended Administrative Complaint. In the Prehearing Stipulation filed March 13, 2012, Petitioner mentioned that, for the 2008-09 school year, Respondent participated in the Title I and Broward Guild programs, which, as noted below, required the reporting of mentoring hours on the same electronic log. Although a reference to "50 hours" refers to the Broward Guild program, the statement that Respondent "also received the [Title I] supplement listing the same two (2) teachers" could be interpreted to state a position that Respondent was guilty of wrongdoing during the 2008-09 school year under both the Broward
Guild and Title I programs. Consistent with this interpretation, Petitioner's proposed recommended order addresses mentoring under both programs in 2008-09.
Petitioner has improperly attempted to expand the scope of the issues identified in the Amended Administrative Complaint. Respondent did not join in Petitioner's statement of position, stating her position merely as a denial of the allegations of the Amended Administrative Complaint. Likewise, the Nature of the Controversy contained in the Prehearing Stipulation refers merely to the conduct and allegations contained in the Amended Administrative Complaint.
For these reasons and the case law cited in the Conclusions of Law, the Administrative Law Judge rules that the scope of the issues as set forth in the Amended Administrative Complaint has not been enlarged by the Prehearing Stipulation. Thus, the violation alleged for 2008-09 addresses the mentoring of
Mr. Policastro and Ms. Myers for the Broward Guild program only. (There is no dispute that the violation alleged for 2007-08 addresses only the mentoring of Mr. Policastro for the Title I program.)
At the hearing, Petitioner called six witnesses and offered into evidence 25 exhibits: Petitioner Exhibits 1-15 and 17-26. Respondent called ten witnesses and offered into evidence 17 exhibits: Respondent Exhibits 1-2, 4-9, 11, and 13-20. All
exhibits were admitted except for Petitioner Exhibits 21-22 and Respondent Exhibits 18 and 20, which were proffered. Respondent Exhibit 15, page 1, was admitted; the rest of this exhibit was admitted, but not for the truth of the contents. Respondent Exhibit 16 was admitted, but not for the truth of the contents.
The court reporter filed the transcript on April 23, 2012. The parties filed proposed recommended orders on June 8, 2012.
FINDINGS OF FACT
Respondent holds Florida Educator's Certificate 602076.
Except for the circumstances surrounding this case, including the Disciplinary Agreement described below, Respondent has never been disciplined at the state or local level. From the start of her teaching career in 1986 through the end of the 2009-10 school year, Respondent taught at Sheridan Hills, which was a Title I school under the federal Elementary and Secondary Education Act during the 2007-08 and 2008-09 school years. In November 2007, Respondent achieved National Board certification, which, as noted below, is the sine qua non of all of the events, described below, that followed.
While at Sheridan Hills, Respondent taught first, second, third, and fifth grades. At various times, she served as a team leader, reading coach, curriculum coordinator, technology coordinator, and New Educator Support System (NESS) coach, who is assigned to assist first-year teachers. In these
roles, Respondent's additional work, including mentoring, would have been compensated. However, outside of the scope of these formal assignments, Respondent, uncompensated, has given freely of her time to help other teachers develop professionally when asked to do so by the teachers or administrators.
Respondent's evaluations over the past 20 years describe a proficient teacher. In chronological order excerpts taken from Respondent's annual evaluations include: "well planned lessons," "dedicated and loving teacher who is well organized," "well managed classroom environment," a "leader in the school," "excellent grade chair," "exhibiting leadership skills," "worked miracles with her group," "very good job . . . as first year Reading Coach," "excellent job as . . . Textbook person and Reading Coach," "goes the extra mile," "helped staff
. . . incorporate many new reading strategies in their classrooms," "implemented many new strategies in her classroom," "caring . . . and works well with parents and staff," "dedicated and committed," her "students consistently reach the high expectations that she has of them," and "smooth transition to third grade and . . . excellent job of leading that team."
The last three comments were written by Sheridan Hills Principal Donald Fitz on his evaluations for, respectively, school years 2005-06, 2006-07, and 2007-08. Principal Fitz added no comments on his evaluations for the 2008-09 and 2009-10
school years, but he assigned Respondent the highest rating, which is satisfactory. On these evaluations, which are dated May 26, 2009, and June 4, 2010, Principal Fitz gave Respondent satisfactory marks for: "Complies with Florida Statutes, State Board of Education Rules, School Board of Broward County Policies, and other applicable regulations."
During the 2007-08 and 2008-09 school years, Respondent prepared and submitted mentoring logs in connection with two local programs that pay supplements to qualifying teachers employed by the Broward County School District. In 2007-08, the Effective Teaching Program used federal funds under Title I to pay a supplement of ten percent of a teacher's base salary or, for Respondent, $12,000-$14,000 (Title I program). In 2008-09, the Broward Guild of Teachers program used Broward Guild funds to pay a supplement of $870 (Broward Guild program). Not at issue in this case is the Dale Hickam Excellent Teaching Program, which used largely state funds to pay a National Board certified teacher in the Broward County School District during the time in question a supplement of about $10,000 for 90 hours of mentoring.
For the 2007-08 school year, a teacher qualified for the Title I program by obtaining National Board certification (or by being named a finalist for the Broward County School District teacher-of-the-year award) and teaching fulltime at a
Title I school. For the 2008-09 school year, the Title I program required a minimum of 25 hours of mentoring, but no such requirement applied in the 2007-08 school year.
The omission of a minimum mentoring requirement was no oversight. Especially for 2007-08, the primary purposes of the Title I program were to retain National Board certified teachers at Title I schools, encourage other teachers at Title I schools to obtain National Board certification, and attract National Board certified teachers from non-Title I schools to Title I schools. Mentoring was not a primary purpose of the Title I program.
Nevertheless, the Title I program Participation Form for 2007-08 requires applicants to submit a "mentoring log." The mentoring log requires the mentor to provide her name, Broward County School District personnel number, National Board certificate number, and mentee's name. The mentoring log provides lines for the date of any mentoring, the specific activity, the start and end times, the total time per date, and total time of all mentoring on all dates shown on the log. The bottom of the mentoring log provides a single line for the signature of the mentor, a line for the "initial signature" of the mentee, and a line for the "final signature" of the mentee. The "initial" signature of the mentee is executed at the start of the mentoring shown on the form, and the "final" signature of
the mentee is executed at the conclusion of the mentoring shown on the form.
To collect her pay supplement under the Title I program for the 2007-08 school year, Respondent submitted three pages of mentoring logs. The sole mentee shown on these logs was
Mr. Policastro. All three pages bore the signature of Respondent, the initial signature of Mr. Policastro, and the final signature of Mr. Policastro. The Participation Form bore the signature of Principal Fitz, but he signed the form before any mentoring had taken place, so his signature does not constitute approval of the mentoring logs that were later attached to the completed Participation Form.
The first page of the mentoring logs depicts a single mentoring session of one hour from 2:15 p.m. to 3:15 p.m. on November 13, 2007, devoted to technology programs for students. The second page depicts 12 mentoring sessions from November 19, 2007, through March 3, 2008, and totaling ten hours. Most of the sessions occurred from 2:15 p.m. to 3:15 p.m. The activities included preparing for a teacher/parent conference, reviewing data from the Dibels reading program, reviewing report cards, reviewing a math program, regrouping reading students, and working on the social studies curriculum. The last page depicts nine mentoring sessions from March 10 through May 8, 2008 and totaling eight hours. Most of these sessions occurred
from 2:15 p.m. to 3:15 p.m. The activities included reviewing material for a gifted online course, revising a lesson plan template, going over field trip forms, reviewing writing score data, and reviewing end-of-year procedures.
The 2007-08 school year was difficult for
Mr. Policastro. It was his first year of teaching, and he had been assigned to teach a gifted fourth-grade class.
Mr. Policastro had problems with a lack of educational expertise, such as in organizing and developing his instruction, managing his instructional time, and teaching in general. After the first six weeks of the school year, parents complained to the administration about the inadequacy of Mr. Policastro's homework assignments, so Principal Fitz assigned a special curriculum coach to remain in the classroom to assist
Mr. Policastro. In addition to this extraordinary assistance, Mr. Policastro had the usual array of help in the form of his fourth-grade team leader, NESS coach, reading coach, technology specialist, and others. Respondent did not serve in any of these capacities, as to Mr. Policastro, during this school year.
For 2007-08, Respondent was the NESS coach of Michael Corva. Due to this relationship, Mr. Corva was frequently in Respondent's classroom, where he saw Respondent mentor his friend, Mr. Policastro, over a dozen times. Mr. Corva heard the
two teachers discussing, among other things, gifted courses for teachers that they were taking online.
During the 2007-08 school year, Karrie Vadal taught at Sheridan Hills. Every time she went to the office, Ms. Vadal passed Respondent's classroom. Six to nine times, Ms. Vadal saw Respondent assisting Mr. Policastro, sometimes while he worked on a computer in Respondent's classroom. Ms. Vadal overheard Respondent and Mr. Policastro discussing in Respondent's classroom the online coursework that they were taking.
During the 2007-08 school year, Marie Aviles taught at Sheridan Hills and saw Respondent mentor Mr. Policastro at least a half dozen times. She saw Respondent mentor Mr. Policastro in the morning before school started, during lunch, and between
2 p.m. and 3 p.m.
During the 2007-08 school year, Margaret Vathauer taught at Sheridan Hills and saw Respondent mentor
Mr. Policastro at least three times. When seeking Respondent's assistance, Mr. Policastro interrupted meetings that Respondent was conducting with other teachers, including Ms. Vathauer.
Against this credited testimony establishing substantial mentoring of Mr. Policastro by Respondent stands the testimony of Mr. Policastro and Principal Fitz. In general,
Mr. Policastro denies being mentored at all by Respondent, Tr.,
p. 88, and Principal Fitz provides whatever support he can for Mr. Policastro.
In denying the existence of any mentoring,
Mr. Policastro must account for the fact that his signatures-- both initial and final--are on each page of Respondent's mentoring logs. This proved to be an impossible task.
Mr. Policastro's testimony illustrates three characteristics of testimonial untrustworthiness in a remarkably brief span: it is halting, self-contradicting, and weakened by conditional argument (e.g., "I would have remembered signing all of these logs" and "If I signed one, it was only one signature") instead of flat denials as to events that, he claimed, did not occur.
Examples of repetition ("I know I didn't." "I know I didn't") and a single instance of explicit choosing ("I have to go with . . .") are more unique to Mr. Policastro. In the context of halting, self-contradicting, and conditional testimony, the repetition and explicit choosing betray
Mr. Policastro's construction of events as a work-in-progress, even as he testified at the hearing. Anxiously repeating his testimony, Mr. Policastro seemed to be trying to persuade himself of its truth. Prefacing his answer with, "I have to go with," confirmed the fact of fabrication, as Mr. Policastro implied that he was not drawing on his memory in answering the questions posed to him.
Initially, Mr. Policastro admitted signing the logs in blank, Tr., p. 118, lines 17-19, but then immediately retreated to the position that he signed only one log. Tr., p. 118,
line 21. Struggling, Mr. Policastro resorted to conditional testimony and repetition, stating:
You know, like I said, these logs--I don't know how many pages--I mean, I would have remembered signing all of those logs. But, I know I didn't. I know I didn't.
Tr., p. 118, lines 21-24.
Asked to explain the presence of his signature on all of the mentoring logs, Mr. Policastro testified conditionally for a moment, then lapsed into halting testimony that included his explicit choice of a version of events, and finally reverted to conditional testimony:
Q. Okay. So, it's your testimony that you didn't sign [the mentoring logs] or you did?
A. If I signed one, it was only one signature. And there was no mentoring information on there or anything like that. It must have been blank.
Q. Okay?
A. Because I have no idea how [Respondent] got my signature.
Q. Okay. So are you now changing your testimony, that this is not your signature?
A. I'm saying that appears to be my signature. Okay? . . . [I]t looks like my
signature. So, you know, I guess--You know, I have to go with like, at least, I guess, I signed one of those. But, I don't remember any information about the mentoring log.
And I think I would have noticed if I had signed all of those logs. I definitely would have said okay, well, you know if I signed all four of those logs well, then, I guess, you know--you know, everything's true. But, it's not.
Q. Okay. Do me a favor? Look at Respondent's Exhibit 11.
A. This one?
Q. Yes. On page 98, where it says mentee's initial signature; is that your signature?
A. These all look like my signature.
* * *
Q. And where it says mentee's final signature; is that also your signature?
* * *
A. This looks like my signature on the first line [initial signature]. The second line [final signature], is too scribbly.
But like I said, if I did sign it, I signed one page and there were no dates on this, no information on this. It was a blank log.
Tr., pp. 118-21.
For his part, Principal Fitz contended that
Mr. Policastro had plenty of help in the form of the coaches and leaders mentioned above and that a third-grade teacher, such as Respondent, would be of little assistance to a fourth-grade teacher, such as Mr. Policastro. In evident exasperation,
Principal Fitz dismissed the very idea that Respondent would have mentored Mr. Policastro in 2007-08 as "ludicrous." Tr., p. 46.
Principal Fitz's testimony is undermined by several facts. He incorrectly assumed that Respondent had never taught above third grade. Dismissing the need for mentoring in the use of the Dibels program, which tests reading fluency, Principal Fitz reasoned that Mr. Policastro would not need such help because he had only four students who used the Dibels program. However, nothing in the record suggests that training a teacher how to use of the Dibels program would take substantially less time if the teacher had only four students, rather then 20, using the program.
Contending that Respondent did not mentor
Mr. Policastro, Principal Fitz emphasized all the help that he was already receiving from his NESS coach, reading coach, and team leader. This argument assumes that a first-year teacher, even a struggling one, would never need extra help. But even with the extraordinary help of the special curriculum coach, Mr. Policastro failed to achieve competency by the end of the 2007-08 school year--a fact established by Principal Fitz's determination that Mr. Policastro needed a special mentor for the next school year. If Mr. Policastro knew that he needed help, it is at least plausible that he may have sought it from
Respondent, especially given the success that year of her NESS mentee and his friend, Mr. Corva.
Principal Fitz's dismissal of the idea that Respondent, a third-grade teacher, would mentor Mr. Policastro, a fourth-grade teacher, is especially dubious, given the fact that Principal Fitz's choice of Mr. Policastro's special mentor for the 2008-09 school year was Respondent. This choice represented Principal Fitz's acknowledgement of Respondent's expertise as a mentor, if not also of her experience as
Mr. Policastro's mentor during the 2007-08 school year.
Belying Principal Fitz's disclaimer that he merely informed the School District investigators of obvious anomalies in Respondent's 2008-09 documentation and then stepped aside, Principal Fitz was not content, at the hearing, with providing what little direct information that he had or even careful analysis that he might have been able to provide, given his expertise in educational administration. Enlisting himself in the effort to prosecute Respondent, Principal Fitz tried to bolster Petitioner's case with the implausible inferences and strained argument noted above. In doing so, he succeeded only in revealing his bias against Respondent.
On these facts, Petitioner has failed to prove that the fraud that it has alleged Respondent committed in connection with the 2007-08 mentoring logs for the Title I program.
Specifically, Petitioner has failed to prove that Respondent never mentored Mr. Policastro, Respondent forged
Mr. Policastro's signatures to the mentoring logs, or Respondent obtained Mr. Policastro's signatures and then completed the mentoring logs with fabricated mentoring sessions.
In their vain attempt to support Petitioner's late addition of its claims of fraud arising out of the 2007-08 mentoring logs, Mr. Policastro and Principal Fitz have squandered their credibility in this case: Mr. Policastro due to his lies and Principal Fitz due to his bias.
For the 2008-09 school year, Respondent prepared and submitted an electronic log documenting the 25 mentoring hours required for the Title I program and the 50 mentoring hours required for the Broward Guild program. As explained in the Preliminary Statement, Petitioner has not raised any issue concerning the mentoring for the 2008-09 Title I program, from which Respondent received all or nearly all of her pay supplement--in the range of $12,000-$14,000.
Recognizing mentoring taking place from June 1, 2008, through the teacher's last active duty day at the end of the 2008-09 school year, Broward Guild mentoring guidelines define mentoring as providing "teachers with direct assistance to help them focus on student learning through effective best teaching practices." The guidelines prohibit a teacher from logging
mentoring time during student contact time, while on leave of absence, or when other compensation is received, such as an NESS supplement or Title I program supplement. Using compensated time for mentoring credit is "double-dipping." Also, the same mentoring hours could not be submitted to satisfy the requirements of the Broward Guild program and another program requiring mentoring, such as the Title I program.
Additional Broward Guild mentoring guidelines require the identification of a specific mentee for each hour submitted and restrict mentees to teachers who are not National Board certified or otherwise eligible for membership in the Broward Guild. To qualify as mentoring, any assistance must consist of "instruction, direction, or counsel," on an individual or group basis, to help the mentee teachers "work more effectively with their students." Mentoring must occur in a "collaborative process with teachers that will support and enhance professional growth that is directly tied to student achievement."
Broward Guild mentoring guidelines instruct interested teachers to record hours on an electronic log; print, sign and date the log; and submit the log to the payroll person at the teacher's school. If the teacher met all of the criteria, the school payroll person approved the payment of the supplement.
Unwritten rules applied to the Broward Guild program.
If the school payroll person found mistakes in the entries, such
as regarding dates or hours, common practice was to allow the mentoring teacher a chance to correct the mistakes and resubmit the log. Although mentoring was not allowed during student contact hours, it was not prohibited during the duty day, provided the mentor made up the time, such as by doing regular school work later in the afternoon or in the evening. Also, not all double-dipping is prohibited: without making up the time, a teacher was allowed to claim mentoring hours during planning week, which is the week preceding the first day of school with students, even though she was paid during this week. Although the evidence is not as strong concerning planning time during the school day, Petitioner failed to prove by clear and convincing evidence that such planning time was not available for mentoring.
Mentors were expected to enter the correct time, date, and duration of mentoring sessions, but a common practice among teachers was to combine brief intervals of mentoring--say, four intervals of 15 minutes each--into a larger unit of time--here, one hour--when recording the mentoring in their logs. The record is not well-developed as to whether this practice extended to combining intervals of mentoring over more than one day--effectively shifting the date of one or more mentoring sessions. As with the proper treatment of planning periods, Petitioner has failed to prove by clear and convincing evidence
that this time- or date-shifting is prohibited--provided, of course, that the duration of a reported mentoring session that combines several unreported mentoring sessions does not exceed the duration of the unreported mentoring sessions.
Unlike the purpose of the Title I program, which is to raise the level of teaching at Title I schools, the purpose of the Broward Guild program is to encourage mentoring by highly skilled teachers. Obviously, this purpose is satisfied by the fact of mentoring; subject to such rules as that prohibiting double-dipping, the purpose of the Broward Guild program is unaffected by exactly when the mentoring takes place. As reflected in the rule allowing mentors a chance to correct mistakes in their logs, the mentoring log is subordinate to the mentoring itself.
As originally submitted, Respondent's electronic log for the 2008-09 school year shows 25 mentoring hours for four named teachers under the Broward Guild program. Omitting personnel numbers, the level of experience of the mentee, the activity, and the detailed description of the activity, the Broward Guild entries are:
2/3/09--Policastro--3-5 p.m.--2 hours 2/9/09--Vathauer--3-5 p.m.--2 hours 2/11/09--Bebon--3-5 p.m.--2 hours 2/16/09--Policastro--3-5 p.m.--2 hours 2/16/09--Vathauer--3-4 p.m.--1 hour 2/24/09--Myers--3-5 p.m.--2 hours 2/27/09--Myers--3-4 p.m.--1 hour
3/2/09--Vathauer--3-5 p.m.--2 hours 3/2/09--Policastro--3-4 p.m.--1 hour 3/5/09--Bebon--3-4 p.m.--1 hour 3/9/09--Policastro--3-5 p.m.--2 hours 3/11/09--Myers--3-4 p.m.--1 hour
3/12/09--Policastro--3-5 p.m.--2 hours 3/16/09--Bebon--3-5 p.m.--2 hours 3/16/09--Vathauer--3-5 p.m.--2 hours
Petitioner's claims of fraud focus on nine hours in five mentoring sessions with Mr. Policastro and four hours in three mentoring sessions with Ms. Myers. For at least three of these mentoring sessions, Respondent's electronic log is wrong. She did not mentor Mr. Policastro from 3:00 to 4:30 p.m. on February 3 because she was on paid staff development during these 90 minutes of the reported two-hour mentoring session, she did not mentor Mr. Policastro for two hours on February 16 because school was closed, and she did not mentor Ms. Myers on February 24 because Ms. Myers was out on sick leave attending a field trip of her daughter.
Principal Fitz detected these errors, as well as another error in mentoring of Ms. Vathauer for the Broward Guild program and two errors in mentoring of Ms. Myers for the Title I program for 2008-09. He spoke with Mr. Policastro and
Ms. Myers, who both denied receiving any mentoring from Respondent during 2008-09. Because all of the mentees except Mr. Policastro taught third grade and Respondent was the third- grade team leader, Principal Fitz concluded that any mentoring
of these three teachers had to be double-dipping, even though he did not know the full scope of what constituted mentoring, the specifics of the mentoring activities shown in the logs, or the extent to which the reported mentoring activities were outside of the specific services required of a team leader.
Rather than discuss the matter with Respondent or allow her to check her electronic log for errors and correct them, Principal Fitz concluded that Respondent had committed fraud and, in May 2009, referred the matter to the School District office for investigation. Respondent admitted to the school investigator that she did not enter mentoring sessions as she provided them, and she routinely grouped several smaller sessions into one larger session. Although she told the investigator that she had mentored Mr. Policastro and Ms. Myers, perhaps in an abundance of caution, Respondent quickly performed another 27 hours of mentoring from May 22 to June 1, 2009 (of persons other than Mr. Policastro and Ms. Myers) and resubmitted the log. However, Principal Fitz declined to authorize the processing of the documentation for the payment of the $870 supplement, which Respondent never received.
After the school investigator completed his investigation, the School District and Respondent resolved the matter with a Disciplinary Action and General Release Agreement dated December 17, 2009 (referred to herein as "Disciplinary
Agreement"). In the Disciplinary Agreement, Respondent neither admitted nor denied any misconduct, but agreed to a five-day suspension without pay in January 2010, a forfeiture of any claim to a pay supplement under the Broward Guild program for the 2008-09 school year, and permanent ineligibility for pay supplements in future years under the Broward Guild program.
At the end of the 2009-10 school year, Respondent transferred within the Broward County School District from Sheridan Hills to Beachside Montessori, which is a magnet school. Joseph Balchunas, the principal of Beachside Montessori and a former statewide teacher-of-the year, testified that, in the two years that Respondent has taught at Beachside Montessori, she has given freely of her time mentoring other teachers, who come to her for help with such things as team teaching, curriculum support, and lesson plans. Respondent receives no compensation for her time helping her colleagues. Due to the Disciplinary Agreement, Respondent is ineligible to seek a supplement under the Broward Guild; nothing in the record suggests that Beachside Montessori is a Title I school, so Respondent is presumably unable to seek a supplement under the Title I program; and the legislature last funded mentoring supplements under the Dale Hickam program for the 2008-09 school year, so Respondent is back where she started, except with a National Board certificate and a new school.
Undoubtedly, Respondent is guilty of poor recordkeeping. In addition to grouping shorter mentoring sessions into a longer mentoring session, likely on a different day, Respondent has also admitted to recording sessions two or three weeks after they had taken place. At this point, Respondent is reconstructing, not documenting, sessions, and accuracy is impossible due to her failure to record her mentoring sessions in a timely fashion. The claim of a lost calendar, though not rising to the level of Mr. Policastro's fabrications, shares in their desperation, as Respondent, by a preponderance of the evidence--not clear and convincing evidence--has attempted to shield her most undisciplined bookkeeping practices from complete disclosure.
However, the issues framed by Petitioner for the 2008- 09 school year are not whether Respondent was a careless bookkeeper or even whether the Disciplinary Agreement achieved a rough justice, in a preponderance case, for Respondent's cavalier approach to the responsibility that she assumed for documenting her mentoring sessions. By its charging documents, Petitioner itself has assumed the task of proving by clear and convincing evidence that Respondent fraudulently claimed that she mentored Mr. Policastro or Ms. Myers for the Broward Guild program.
After baldly lying about the 2007-08 mentoring,
Mr. Policastro has no credibility whatsoever. His denials of mentoring during the 2008-09 school year receive absolutely no weight. Instead, the testimony of Ms. Vadal, Ms. Aviles,
Ms. Vathauer, and Mr. Corva is credited, as they witnessed Respondent mentor Mr. Policastro on multiple occasions during the 2008-09 school year.
It is plausible that Respondent mentored
Mr. Policastro because Principal Fitz ordered her to do so. Given Principal Fitz's bias against Respondent, of which she was aware, he probably would have added gross insubordination to his list of charges against Respondent, if there had been a colorable basis to do so. Another subtle, but important, point militates against a finding of no mentoring. On this record, Respondent emerges as a sloppy bookkeeper, but also a mentoring specialist. She has mentored other teachers for 20 years, and, when Principal Fitz needed a mentor for a difficult case, even though she was not teaching the same grade, he tapped Respondent. Thus, in Respondent's case, poor documentation does not readily support an inference of no mentoring.
For these reasons, Petitioner has failed to prove its charge that Respondent fraudulently claimed to have mentored Mr. Policastro during the 2008-09 school year for the Broward Guild program. The greater weight of the evidence suggests that
the wrong entries on February 3 and 16 are due to sloppy bookkeeping, rather than fabrication, by Respondent.
Similarly, sloppy bookkeeping, not fabrication, better accounts for the wrong entry on February 24 for mentoring
Ms. Myers. However, Petitioner cites another reason, which does not apply to Mr. Policastro, to preclude even the possibility of Respondent's mentoring Ms. Myers: as the team leader for third grade, for which she received a supplement of $780, Respondent could not mentor another third-grade teacher without violating the double-dipping prohibition.
In addition to the two hours misreported on
February 24, the electronic log shows two other sessions of one hour each. The reported activities and descriptions of these three sessions are:
2/24/09--lesson plans--went over the curriculum
2/27/09--data analysis--reviewed Dibels reports
3/1/09--technical--worked on getting her [remainder cut off due to limitations of electronic log program]
Petitioner failed to prove that any of these mentoring activities fell within the scope of the services for which Respondent was paid as Ms. Myers' team leader. The team leader is a liaison between Principal Fitz and the members of her team. In general, the goal of the team leader is "to assist the principal with planning respective curriculum and to coordinate
team functions." The specific responsibilities of a team leader are:
assist the principal in coordinating the instructional program and materials and monitor team functions to determine problems and needs.
serve as instructional liaison between team employees and school administration, and participate in formulating policy and procedures relating to curriculum at the school level.
assist in the inservice plans for the school and assist in coordinating inservice training for employees.
assist the principal in purchasing and disseminating materials and supplies and in maintaining inventory.
examine and introduce instructional and professional materials to students.
assist teachers in plans for substitute teachers.
. . . attend all applicable school and county-level meetings.
review current developments, literature and technical sources of information related to job responsibility.
ensure adherence to good safety procedures.
perform other duties as assigned by the principal.
follow federal and state laws, as well as School Board policies.
The only mentoring activity that approached the services required of a team leader was going over the curriculum. One of the team leader's responsibilities is to examine and introduce instructional materials to teachers. Assuming that instructional materials and curriculum are synonymous, going over instructional materials has nothing to do with their examination by the team leader or even their introduction by the team leader to the team. If a teacher must go over these materials with one teacher after introducing them to all of the teachers, the teacher is providing service above and beyond her role as team leader.
Even though Respondent's role as Ms. Myers' team leader does not preclude the claimed mentoring for the listed activities, the ultimate question remains whether these mentoring sessions took place. Ms. Myers denies that she received any mentoring from Respondent. Although Ms. Myers has an established relationship with Principal Fitz that precedes the latter's arrival at Sheridan Hills and Principal Fitz recruited her to teach at Sheridan Hills, these are not reasons to doubt to the credibility of Ms. Myers, who testified in a forthright fashion.
Ms. Myers is an experienced teacher, but she is not National Board certified or a member of the Broward Guild and, at the time, had just returned to teaching following a leave-of-
absence of two years. It is therefore likely that she would not know the scope of mentoring, and it is plausible that she might have needed help from an experienced, skilled teacher in matters involving curriculum, Dibels scores, and planning the student center. Ms. Bebon testified that she witnessed Respondent mentor Ms. Myers once or twice during the 2008-09 school year, Respondent testified that she mentored Ms. Myers, and Respondent's demonstrated ineptitude in bookkeeping stood in sharp contrast to her skill and enthusiasm for mentoring.
Likely, Ms. Myers was understandably nonplussed by seeing in Respondent's logs the February 24 session, which could not have taken place due to the field trip, and claims of mentoring sessions past 3:15 p.m., which typically could not have taken place because Ms. Myers routinely left the school grounds at 3:15 p.m. to pick up her daughter from school. After seeing these incorrect entries and likely hearing Principal Fitz's judgment on the matter, Ms. Myers perhaps was in no frame of mind to reflect on the help that she actually had received from Respondent. Regardless, on the present record, Petitioner has failed to prove by clear and convincing evidence that no such mentoring took place.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.
Legally, Petitioner has alleged that Respondent has violated section 1012.795(1)(d), Florida Statutes, which authorizes discipline for gross immorality or an act of moral turpitude; section 1012.795(1)(g), which authorizes discipline for personal conduct that seriously reduces her effectiveness as a School Board employee; Florida Administrative Code Rule
6B-1.006(4)(b), which authorizes discipline for failing to take reasonable precautions between personal views and the views of an educational organization; rule 6B-1.006(4)(c), which authorizes discipline for using institutional privileges for personal gain or advantage; rule 6B-1.006(5)(a), which authorizes discipline for failing to maintain honesty in all professional dealings; rule 6B-1.006(5)(e), which authorizes discipline for making intentionally false statements about a colleague; rule 6B-1.006(5)(g), which authorizes discipline for misrepresenting her professional qualifications; rule
6B-1.006(5)(h), which authorizes discipline for submitting fraudulent information on a document in connection with professional activities; rule 6B-1.006(5)(i), which authorizes discipline for making a fraudulent statement or failing to
disclose a material fact in an application for a professional position; and rule 6B-1.006(5)(j), which authorizes discipline for withholding information regarding a position from an applicant or misrepresenting an assignment or conditions of employment.
Although a wide variety of acts and omissions could constitute violations of the statute and rules cited in the preceding paragraph, Petitioner has pleaded a fact common to all of these alleged violations of law--i.e., fraud. Of course, Petitioner is bound by its allegations in terms of the conduct that may support a determination adverse to Respondent and her certificate. Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
As required when alleging fraud, see, e.g., Strack v.
Fred Rawn Constr., Inc., 908 So. 2d 563, 565 (Fla. 4th DCA 2005), Petitioner has alleged specifically: 1) the 2007-08 mentoring log is fraudulent as to the Title I program because Respondent never mentored Mr. Policastro, forged his signature to the mentoring logs, or fraudulently had him sign the mentoring logs in blank prior to completing the form with fabricated mentoring sessions, and 2) the 2008-09 mentoring log is fraudulent as to the Broward Guild program because Respondent never mentored Mr. Policastro or Ms. Myers.
Petitioner must prove the material allegations by clear and convincing evidence. Dep't of Bank. & Fin. v. Osborne
Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence is a high evidentiary standard. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court defined this standard, in part, as follows: "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."
At common law, fraud requires a knowingly false statement about a material fact with the intent to induce action by the party relying on the representation and consequent injury to such party. See, e.g., Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985).
Petitioner failed to prove any of the specific allegations that it has made as to the 2007-08 mentoring logs.
Petitioner's failure as to the 2007-08 mentoring logs is compounded by its misunderstanding of the fundamental purpose of the Title I program. Especially as it existed in 2007-08, the purpose of this program was to improve the quality of teachers in Title I schools. Given the nature of this program, as long the proof showed any mentoring by Respondent of any
teacher, Petitioner could not prove the elements of materiality, inducement to action, or injury.
Petitioner failed to prove any of the specific allegations that it has made as to the 2008-09 mentoring logs.
As contrasted to the 2007-08 mentoring logs, the 2008- 09 mentoring logs at least relate to a program whose purpose is to encourage mentoring. As admitted by Respondent, the 2008-09 electronic logs for the Broward Guild program contain obvious mistakes due to her sloppy, undisciplined bookkeeping. It is difficult to see how Petitioner links these obvious mistakes and sloppy, undisciplined bookkeeping to fraud. Either Petitioner contends that obvious mistakes and sloppy, undisciplined bookkeeping are synonymous with fraud, or Petitioner invites an inference of fraud based on these obvious mistakes and sloppy, undisciplined bookkeeping. But neither approach succeeds for Petitioner.
The problem with equating the obvious mistakes and sloppy, undisciplined bookkeeping with fraud is that this approach distorts the purpose of the Broward Guild program from a program to encourage mentoring to a program to test the ability of a teacher to produce accurate mentoring logs. Of course, the logs are not the point of the program, but are merely proof that the applicant has satisfied the mentoring requirement for the $870 supplement offered by the program. If
the mentoring has been done--or, here, if Petitioner has failed to prove that it has not been done--the purpose of the program has been served, and the program has not been injured, even if the submitted logs are replete with errors.
Inviting an inference of fraud based on the obvious mistakes and sloppy, undisciplined bookkeeping is a better approach. However, on the present record, the inference sought by Petitioner cannot overcome the lack of credibility of two of its main witnesses, the rigorous standard of proof in a disciplinary case, the presence of other evidence tending to establish the mentoring of Mr. Policastro and Ms. Myers for the Broward Guild program, and Petitioner's framing of the factual issue as fraudulent reporting of mentoring due to the failure of Respondent to have performed any mentoring of Mr. Policastro or Ms. Myers.
Mr. Policastro proved himself to be an utterly unreliable witness, so his denials of mentoring require no analysis. Ms. Myers was credible as a witness, although her denial of any mentoring could be explained by a lack of understanding as to the definition of mentoring, an understandable reaction to erroneous claims of mentoring sessions involving her in Respondent's logs, and a response to the obvious alacrity with which her ally and administrator Principal Fitz seized the 2008-09 electronic logs as an
opportunity to punish Respondent. Given these factors, the denial of mentoring by Ms. Myers plus whatever inference that may be available from the obvious mistakes in the logs and the sloppy, undisciplined bookkeeping of Respondent are plainly insufficient to establish, by clear and convincing evidence, that Respondent did not mentor Ms. Myers, due to the testimony to the contrary of Respondent and Ms. Bebon, the likely need of Ms. Myers for some help after her leave-of-absence, and the long history of Respondent as an enthusiastic and successful mentor.
It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint.
DONE AND ENTERED this 13th day of June, 2012, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
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 13th day of June, 2012.
COPIES FURNISHED:
Melissa C. Mihok, Esquire Kelly and McKee, P.A. Suite 301
1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 mcm@kellyandmckee.com
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E
300 Southeast 13th Street
Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
Kathleen M. Richards, Executive Director Education Practices Commission
Department of Education Suite 224
Turlington Building
325 West Gaines Street Tallahassee, Florida 32399-0400
Charles M. Deal, General Counsel Department of Education
Suite 1244 Turlington Building
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Suite 224-E Turlington Building
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 07, 2012 | Agency Final Order | |
| Jun. 13, 2012 | Recommended Order | Petitioner failed to prove that teacher committed fraud in submitting mentoring logs for pay supplements, even though the logs contained errors. |
