STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 93-0346
)
ALONZO GILBERT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 9 and 10, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gregory A. Chaires, Esquire
Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
For Respondent: Thomas W. Risavy, Esquire
William A. Meadows, Jr., Esquire 6101 Southwest 76th Street
South Miami, Florida 33143 STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On December 9, 1992, Petitioner issued an Administrative Complaint alleging that Respondent, while employed as the assistant principal for community education at L.C. Evans Elementary School in Dade County, Florida, engaged in the following conduct that warranted the taking of disciplinary action against him: "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he falsified registration records for classes in the adult education program;" "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he falsified attendance records for classes in the adult education program;" "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify registration records for classes;" "[d]uring the
1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify attendance records for classes;" and "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to pay tuition for students, some of whom never attended." Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on the matter. On January 25, 1993, the case was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.
At the final hearing, which was held on September 9 and 10, 1993, the testimony of the following eleven witnesses, all current or former employees of the Dade County School Board, was presented: Irlina Moore; Bertha Cochran; Sophia Ann James Hall; Joseph Mathos; Michael Malone; Will Miller; Henry Horstman; William Moye; Roger Cuevas; Joni Singleton; and Respondent. In addition to the testimony of these eleven witnesses, a total of 15 exhibits (Petitioner's Exhibits 1 through 6 and Respondent's Exhibits 1 through 5 and 7 through 10) were offered and received into evidence.
At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the transcript on October 4, 1993. On November 3, 1993, Petitioner timely filed a proposed recommended order. On November 4, 1993, Respondent filed an unopposed motion requesting an extension of the deadline for the filing of post-hearing submittals. By order issued November 5, 1993, Respondent's motion was granted and the deadline for the filing of post-hearing submittals was extended to November 10, 1993.
Respondent timely filed his proposed recommended order on November 10, 1993.
The parties' post-hearing submittals contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made:
Respondent holds Florida teaching certificate 254645, which covers the areas of administration and supervision, health education, adult administration, and physical education, and is valid through June 30, 1997.
Following his graduation from Florida A&M University in 1969, Respondent obtained a teaching position with the Dade County School Board (hereinafter referred to as the "Board").
Respondent remained in the employ of the Board as a teacher and then as an administrator until he retired effective May 28, 1992.
During the 1990-91 school year, Respondent was the assistant principal for community education at L.C. Evans Elementary School (hereinafter referred to as "Evans"), a position he had held since November of 1987.
Dorothy Mindingall was the principal at Evans and Respondent's immediate supervisor.
Among Respondent's responsibilities as the school's assistant principal for community education was to bring to the school adult education classes, offered by the Miami Northwestern Adult Center (hereinafter referred to as the "Center"), that the community wanted.
During the 1990-91 school year, adult education sewing classes taught by Irlina Moore, adult education parenting classes taught by Joni Singleton, and adult education GED classes taught by Bertha Cochran and Sophia Ann James Hall were offered at Evans in the evening hours.
As the only school administrator on duty at Evans that time of day, Respondent was responsible for monitoring the activity that was then taking place in the building, including that related to these adult education classes.
The adult education teachers viewed Respondent as their immediate supervisor, even though it was actually Betty Major, the Center's assistant principal for adult education, not Respondent, who had been assigned that supervisory responsibility.
Major had little or no contact with the teachers.
The adult education classes at Evans had been established only after Respondent had approached the principal of the Center, Will Miller, and requested that Miller authorize the establishment of the classes.
While Miller did not exercise any supervisory authority over Respondent, the classes could not be offered at Evans without Miller's authorization.
Miller gave his authorization and hired the teachers Respondent had recommended to teach these classes. He did so, however, with the caveat that the classes would be discontinued if they had enrollments of less than 25 students.
After their hiring, Respondent told the teachers to recruit students for their classes and to assist the students in the registration process.
In addition, he suggested to Moore that she pay for the registration of students who were unable to afford the registrations fee.
Moore did as she was told.
She was subsequently reimbursed by only a few of the students.
The adult education classes held at Evans during the 1990-91 school year were poorly attended.
Many students who were registered, including those whose registration fee had been paid by Moore, rarely, if ever, showed up for class.
Generally, only two or three students were actually present for Moore's sewing classes.
Cochran and Hall, on the average, had eight to ten and four to eight students, respectively, attend their GED classes.
Respondent was aware of these attendance problems.
He also knew, as did at least some of the adult education teachers teaching these classes, that if a student was marked absent for six consecutive days the student would no longer be considered enrolled in the class for purposes of determining whether class enrollment was sufficient to justify the continuation of the class.
Respondent instructed Moore to mark students present who were actually absent from class.
Thereafter, at a meeting held in November of 1990, the subject of which was the recruitment and enrollment of adult education students, Respondent gave similar instructions to the teachers in attendance-- Moore, Cochran and Singleton.
Moore and Cochran acted in accordance with Respondent's instructions and intentionally falsified their class attendance records.
Cochran, though, did so for only approximately one month before deciding to resign her position at Evans.
Hall was not present at the November, 1990, meeting.
On two or three different occasions, however, in the hallway outside of her classroom, Respondent advised her to mark students present who were actually absent from class.
In or around January of 1991, Hall began following Respondent's advice and, as Moore and Cochran had already done, and Moore was continuing to do, started submitting attendance records that she knew overstated the number of students actually attending her classes. She continued to do so until March or April of that same year.
In submitting falsified attendance records, Moore, Cochran and Hall were motivated by a desire to retain their jobs teaching at Evans-- jobs they knew were at risk because of the relatively small number of students who were regularly attending their classes.
Respondent used these attendance records, which he knew were inaccurate, to prepare the community school activity reports it was his responsibility, as assistant principal for community education, to submit to his supervisor his each month-- in particular, those portions of these reports which reflected the number of enrolled students in Moore's, Cochran's and Hall's classes and the number of "participant hours" purportedly generated by these classes during the reporting period.
Accordingly, these reports, as Respondent was aware, made it appear that more students were participating in the adult education program at Evans than was actually the case.
Had the truth been revealed in these reports, it may very well have raised questions as to whether Respondent was satisfactorily performing his responsibility of providing the community with what it wanted in the way of adult education classes. Respondent therefore had a motive to keep the truth from his superiors and to mislead them regarding the actual extent of community participation in the adult education program at Evans.
Respondent's superiors, however, ultimately uncovered the truth following an investigation into the matter.
During the investigation, Moore, Cochran and Hall were each questioned on more than one occasion by Michael Malone, the Board's police coordinator.
Initially, neither of them specifically admitted falsifying attendance records. Cochran and Hall, in fact, specifically denied engaging in such activity.
Subsequently, however, they all told Malone the truth and in so doing implicated Respondent.
Moore and Hall did so only after they had met with Cochran, who had already revealed the truth, at Cochran's home to discuss the matter.
Neither Moore nor Hall told Malone about the meeting.
Hall did mention to Malone, though, that she had attended a meeting at the Center at which "Miller had told everyone present about the investigation and how four teachers were in serious trouble" and that, as a result, "she now realized how serious this matter [wa]s."
After Respondent was formally advised of the results of the Board's investigation at a March 11, 1992, conference-for-record, he decided to retire.
His retirement as an employee of the Board was effective May 28, 1992.
CONCLUSIONS OF LAW
The Education Practices Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against the holder of a Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: 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 three years; imposition of 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 Commission may specify. Sections 231.261(8)(b), 231.262(6) and 231.28(1), Fla. Stat.
Subsection (1)(h) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."
Subsections (5)(a) and (h) of Rule 6B-1.006, Florida Administrative Code, are among the "rule[ provision]s of the State Board of Education, the penalty for [violation of] which is the revocation of the teaching certificate." Rule 6B-1.006(2), Fla. Admin. Code.
Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, requires a certificate holder to "maintain honesty in all professional dealings."
Subsection (5)(h) of Rule 6B-1.006, Florida Administrative Code, prohibits a certificate holder from "submit[ting] fraudulent information on any document in connection with professional activities."
The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
A teaching certificate may be suspended or revoked based upon the foregoing statutory and rule provisions only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "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, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129,
133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
The Administrative Complaint issued in the instant case alleges that Respondent, while employed during the 1990-91 school year as the assistant principal for community education at L.C. Evans Elementary School in Dade County, Florida, engaged in the following misconduct: "acted unprofessionally and dishonestly in that he falsified registration records for classes in the adult education program (paragraph 3);" "acted unprofessionally and dishonestly in that he falsified attendance records for classes in the adult education program (paragraph 4);" "acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify registration records for classes (paragraph 5);" "acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify attendance records for classes (paragraph 6);" and "acted unprofessionally and dishonestly in that he directed teachers in the adult education program to pay tuition for students, some of whom never attended (paragraph 7)." The Administrative Complaint further alleges that, in engaging in such conduct, he violated subsections (5)(a)(First Count) and (h)(Second Count) of Rule 6B-1.006, Florida Administrative Code, and, therefore, subsection (1)(h) of Section 231.28, Florida Statutes (Third Count), as well.
The evidence clearly and convincingly establishes that, during the 1990-91 school year, while acting in his capacity as the assistant principal for community education at Evans, Respondent instructed teachers in the school's adult education program to falsify attendance records, as alleged in paragraph 6 of the Administrative Complaint.
In so doing, Respondent violated subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, and, therefore, subsection (1)(h) of Section 231.28, Florida Statutes, as well, as alleged in the First and Second Counts of the Administrative Complaint.
The evidence also clearly and convincingly establishes that, during the 1990-91 school year, while acting in his capacity as the assistant principal for community education at Evans, Respondent incorporated in his monthly activity reports statistics that he knew overstated the extent of community participation in the school's adult education program, in violation of subsections (5)(a) and (h) of Rule 6B-1.006, Florida Administrative Code, and, therefore, also subsection (1)(h) of Section 231.28, Florida Statutes, as alleged the First, Second and Third Counts of the Administrative Complaint.
There is insufficient proof, however, to establish that Respondent engaged in any other conduct alleged in the Administrative Complaint that constituted a violation of any of these provisions.
Inasmuch as it has been established by clear and convincing evidence that Respondent engaged in the conduct described in paragraphs 53 and 55 of this Recommended Order, in violation of subsection (1)(h) of Section 231.28, Florida Statutes, the Commission has the authority to take disciplinary action against him.
In her proposed recommended order, Petitioner argues that the Commission should
enter a Final Order which revokes the respondent's teaching certificate for a period of five years (5) and that upon recertification as an educator, he be permanently restricted from being an administrator.
Having carefully considered and weighed the facts of the instant case, including the length of Respondent's service as an educator in this state, the Hearing Officer believes that suspending Respondent's teaching certificate for a period of three years and placing him on probation, subject to such conditions as the Commission may deem appropriate, for a period of two years following the end of his suspension represents a more appropriate punishment for his transgressions than that proposed by Petitioner.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations found above and disciplining him for having committed these violations by suspending his teaching certificate for a period of three years and placing him on probation, subject to such conditions as the Commission may deem appropriate, for a period of two years following the end of his suspension.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of November, 1993.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1993.
ENDNOTES
1/ The hearing was originally scheduled to commence on April 28, 1993, but was twice continued, the first time at the request of Respondent and the second time at the request of Petitioner.
2/ Tangie Lloyd, Respondent's secretary, was also present at the meeting.
3/ As a general rule, Respondent or his secretary collected the adult education teachers' attendance records and then delivered them to the Center. On occasion, Respondent would sign these records, indicating that they had been "reviewed by" him.
4/ Respondent had advised them of the minimum enrollment that was necessary for their classes to continue.
5/ While there is clear and convincing evidence to support the allegation that Respondent suggested to Moore that she pay for the registration of students who were unable to afford the registrations fee, in suggesting that Moore provide financial assistance to needy students, Respondent was not, contrary to the allegation advanced in paragraph 7 of the Administrative Complaint, acting "unprofessionally" or "dishonestly."
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-346
The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the parties in their post-hearing submittals:
Petitioner's Proposed Findings
1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
To the extent that this proposed finding suggests that Respondent had line authority over the adult education teachers who taught at Evans, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts that, during the 1990-
91 school year, Respondent told teachers to assist students in the registration process and to pay the tuition of students needing financial assistance, it has been accepted and incorporated in substance. To the extent that it asserts that, in so doing, Respondent "acted unprofessionally and dishonestly," it has been rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Insofar as this proposed finding suggests that Respondent instructed Moore to employ any means, including fraudulent and otherwise unlawful means, to register students, it has been rejected because it is not supported by persuasive competent substantial evidence.
10-11. Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding asserts that Moore falsified attendance records "because Respondent intimidated her," it has been rejected because it not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that Respondent had line authority over Cochran, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
19-21. Accepted and incorporated in substance.
To the extent that this proposed finding states that "Cochran told Ms. Lloyd she was upset about falsifying the attendance records," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Insofar as this proposed finding suggests that Respondent had line authority over Hall, it has been rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
27-31. Accepted and incorporated in substance.
32. Rejected because it is outside the scope of the specific charges advanced against Respondent in the Administrative Complaint.
33-34. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Respondent's Proposed Findings
To the extent that this proposed finding states that Respondent "graduated from Florida A&M University," it has been accepted and incorporated in substance." Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted and incorporated in substance; Third, fourth and sixth through ninth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fifth sentence: Insofar as this proposed finding asserts that Respondent retired effective June 1, 1991, rather than May 28, 1992, it has been rejected because it is contrary to the greater weight of the evidence.
First sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that the monthly activity report reflected only class enrollment and not class attendance, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence, before comma: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; First sentence, after comma, and second sentence: Accepted and incorporated in substance.
To the extent that this proposed finding states that Guillermo Toro was not present at the meeting, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts that, during her initial interview with Malone, Moore did not specifically admit falsifying attendance records, nor did she implicate Respondent in any wrongdoing, it has been accepted and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: To the extent that this proposed finding asserts that, during her September, 1991, interview with Malone, Moore admitted that she "had paid the tuition for the students who were registered but did not attend class," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance; Second and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony.
First and second sentences: Not incorporated in this Recommended Order because, even if true, they would have no bearing on the outcome of the instant case; Third and fourth sentences: Accepted and incorporated in substance.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that Cochran, during her August 21, 1991, interview, said that the meeting "was in November 1991," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second and third sentences: Accepted and incorporated in substance.
20-21. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that Cochran "changed [her] stor[y]" only after the meeting she had at her house with Moore and Hall, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Cochran and Moore were interviewed by Malone in August and September of 1992, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance; Third sentence: To the extent that this proposed finding asserts that Lloyd told Malone that she "did not hear what Mr. Gilbert said" at the meeting, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding asserts that Singleton told Malone that she "did not hear what Mr. Gilbert said" at the meeting, it has been rejected because it is not supported by persuasive competent substantial evidence;
Fourth sentence: To the extent that this proposed finding states that Respondent was present at the meeting, it has been accepted and incorporated in substance. To the extent that it states that "he denies telling them to mark people present who were absent," it has been rejected because it is more in the nature of a summary of certain testimony Respondent gave at hearing (which, in any event, the Hearing Officer has found not to be credible) than a finding of fact based upon this testimony.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
26-28. Accepted and incorporated in substance.
29. Not incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case.
30-31. To the extent that these proposed findings state that there was a Board investigation of "the community school program and the adult ed classes over there" at Evans and that Malone participated in the investigation, they have been accepted and incorporated in substance. Otherwise, they have not been incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is contrary to the greater weight of the evidence.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
35-36. Rejected because the Hearing Officer has found the record evidence supporting these proposed findings less credible than the record evidence to the contrary.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony elicited at hearing than a finding of fact based upon such testimony.
First and second sentences: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
COPIES FURNISHED:
Jill M. Boyd, Esquire BOND & BOYD, P.A.
411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302
Gregory A. Chaires, Esquire Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Thomas W. Risavy, Esquire William A. Meadows, Jr., Esquire 6101 Southwest 76th Street
South Miami, Florida 33143
Karen Barr Wilde, Executive Director Education Practices Commission
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY ORDER OF REMAND
=================================================================
Before the Education Practices Commission of the State of Florida
BETTY CASTOR, as
Commissioner of Education, ORDER OF REMAND Petitioner,
vs.
ALONZO GILBERT, CASE NO. 92-229-RA EPC INDEX NO.
Respondent. DOAH CASE NO. 93-0346
/
This matter was scheduled for consideration before the Education Practices Commission at its January 20, 1994, meeting in Tampa, Florida upon the Recommended Order filed herein under date of November 16, 1993.
On the first page of the Recommended Order, the hearing officer states as the first issue, "whether the Respondent committed the violations alleged in the Administrative Complaint?"
On page two of the Recommended Order the hearing officer recites the charges contained in the Administrative Complaint.
Respondent has filed exceptions to the hearing officer's Recommended Order, the first of which alleges that the matter was not considered on the original Administrative Complaint but rather went forward on an Amended Administrative Complaint which had deleted some of the charges contained in the original complaint.
That contention appears to be confirmed by the Petitioner who on page two of her Proposed Recommended Order stated that the case began when the Petitioner filed the Amended Administrative Complaint against the Respondent.
Inasmuch as the Amended Administrative Complaint was not addressed by the hearing officer nor does it appear to be included as a part of the record before the Commission it is, upon consideration,
ORDERED and ADJUDGED that this cause be in the same is hereby remanded to Stuart M. Lerner, Hearing Officer, Division of Administrative Hearings for such further considerations and recommendations as may be appropriate under the circumstances.
DONE AND ORDERED, this 20th day January, 1994.
Frank Brogan, Presiding Officer
COPIES FURNISHED TO:
Jerry Moore, Program Director Professional Practices Services
Rivers Buford, Jr. I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing Order in the matter of
BC vs. Alonzo Gilbert, was mailed
Barbara J. Staros to Alonzo Gilbert, 14825 Robinson
General Counsel Street, Miami, Florida 33176 this 28th day of January, 1994, by U.S.
Florida Admin. Law Reports Mail.
Stuart M. Lerner,
Hearing Officer KAREN B. WILDE, Clerk Division of
Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
=================================================================
AMENDED RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, Commissioner )
of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 93-0346
)
ALONZO GILBERT, )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 9 and 10, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gregory A. Chaires, Esquire
Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
For Respondent: Thomas W. Risavy, Esquire
William A. Meadows, Jr., Esquire 6101 Southwest 76th Street
South Miami, Florida 33143 STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Amended Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On December 9, 1992, Petitioner issued an Administrative Complaint alleging that Respondent, while employed as the assistant principal for community education at L.C. Evans Elementary School in Dade County, Florida, engaged in the following conduct that warranted the taking of disciplinary action against him: [d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he falsified registration records for classes in the adult education program; "[d]uring the 1990-91 school year [he] acted unprofessionally
and dishonestly in that he falsified attendance records for classes in the adult education program;" "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify registration records for classes;" [d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify attendance records for classes; and "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to pay tuition for students, some of whom never attended. Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on the matter. On January 25, 1993, the case was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.
Thereafter, on June 28, 1993, Petitioner filed a motion requesting leave to amend the Administrative Complaint she had previously issued against Respondent. An Amended Administrative Complaint, dated June 14, 1993, was appended to the motion. By order issued July 12, 1993, the motion was granted. The Amended Administrative Complaint charged that Respondent, in his capacity as the assistant principal for community education at L.C. Evans Elementary School, engaged in the following misconduct: "[d]uring the 1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify attendance records for classes;" "[d]uring the
1990-91 school year [he] acted unprofessionally and dishonestly in that he directed teachers in the adult education program to pay tuition for students, some of whom never attended;" and "he submitted fraudulent information on a document in connection with professional activities." In so doing, according to the Amended Administrative Complaint, Respondent violated Section 232.023, Florida Statutes, and subsections (5)(a) and (h) of Rule 6B- 1.006, Florida Administrative Code, and, therefore, subsection (1)(h) of Section 231.28, Florida Statutes, as well.
At the final hearing, which was held on September 9 and 10, 1993, 1/ the testimony of the following eleven witnesses, all current or former employees of the Dade County School Board, was presented: Irlina Moore; Bertha Cochran; Sophia Ann James Hall; Joseph Mathos; Michael Malone; Will Miller; Henry Horstman; William Moye; Roger Cuevas; Joni Singleton; and Respondent. In addition to the testimony of these eleven witnesses, a total of 15 exhibits (Petitioner's Exhibits 1 through 6 and Respondent's Exhibits 1 through 5 and 7 through 10) were offered and received into evidence.
At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the transcript on October 4, 1993. On November 3, 1993, Petitioner timely filed a proposed recommended order. On November 4, 1993, Respondent filed an unopposed motion requesting an extension of the deadline for the filing of post-hearing submittals. By order issued November 5, 1993, Respondent's motion was granted and the deadline for the filing of post-hearing submittals was extended to November 10, 1993.
Respondent timely filed his proposed recommended order on November 10, 1993. The parties' post-hearing submittals contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Amended Recommended Order.
The Hearing Officer issued his Recommended Order in this case on November 16, 1993. In his Recommended Order, the Hearing Officer made reference only to the original Administrative Complaint issued by Petitioner. He failed to make any specific mention of the Amended Administrative Complaint. Accordingly, on January 20, 1993, the Education Practices Commission issued an order remanding the case to the Hearing Officer "for further considerations and recommendations as may be appropriate under the circumstances." The order of remand was received by the Division of Administrative Hearings on February 2, 1994. This Amended Recommended Order represents the Hearing Officer's attempt to comply with the order of remand.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made:
Respondent holds Florida teaching certificate 254645, which covers the areas of administration and supervision, health education, adult administration, and physical education, and is valid through June 30, 1997.
Following his graduation from Florida A&M University in 1969, Respondent obtained a teaching position with the Dade County School Board (hereinafter referred to as the "Board").
Respondent remained in the employ of the Board as a teacher and then as an administrator until he retired effective May 28, 1992.
During the 1990-91 school year, Respondent was the assistant principal for community education at L.C. Evans Elementary School (hereinafter referred to as "Evans"), a position he had held since November of 1987.
Dorothy Mindingall was the principal at Evans and Respondent's immediate supervisor.
Among Respondent's responsibilities as the school's assistant principal for community education was to bring to the school adult education classes, offered by the Miami Northwestern Adult Center (hereinafter referred to as the "Center"), that the community wanted.
During the 1990-91 school year, adult education sewing classes taught by Irlina Moore, adult education parenting classes taught by Joni Singleton, and adult education GED classes taught by Bertha Cochran and Sophia Ann James Hall were offered at Evans in the evening hours.
As the only school administrator on duty at Evans that time of day, Respondent was responsible for monitoring the activity that was then taking place in the building, including that related to these adult education classes.
The adult education teachers viewed Respondent as their immediate supervisor, even though it was actually Betty Major, the Center's assistant principal for adult education, not Respondent, who had been assigned that supervisory responsibility.
Major had little or no contact with the teachers.
The adult education classes at Evans had been established only after Respondent had approached the principal of the Center, Will Miller, and requested that Miller authorize the establishment of the classes.
While Miller did not exercise any supervisory authority over Respondent, the classes could not be offered at Evans without Miller's authorization.
Miller gave his authorization and hired the teachers Respondent had recommended to teach these classes. He did so, however, with the caveat that the classes would be discontinued if they had enrollments of less than 25 students.
After their hiring, Respondent told the teachers to recruit students for their classes and to assist the students in the registration process.
In addition, he suggested to Moore that she pay for the registration of students who were unable to afford the registrations fee.
Moore did as she was told.
She was subsequently reimbursed by only a few of the students.
The adult education classes held at Evans during the 1990-91 school year were poorly attended.
Many students who were registered, including those whose registration fee had been paid by Moore, rarely, if ever, showed up for class.
Generally, only two or three students were actually present for Moore's sewing classes.
Cochran and Hall, on the average, had eight to ten and four to eight students, respectively, attend their GED classes.
Respondent was aware of these attendance problems.
He also knew, as did at least some of the adult education teachers teaching these classes, that if a student was marked absent for six consecutive days the student would no longer be considered enrolled in the class for purposes of determining whether class enrollment was sufficient to justify the continuation of the class.
Respondent instructed Moore to mark students present who were actually absent from class.
Thereafter, at a meeting held in November of 1990, the subject of which was the recruitment and enrollment of adult education students, Respondent gave similar instructions to the teachers in attendance -- Moore, Cochran and Singleton. 2/
Moore and Cochran acted in accordance with Respondent's instructions and intentionally falsified their class attendance records.
Cochran, though, did so for only approximately one month before deciding to resign her position at Evans.
Hall was not present at the November, 1990, meeting.
On two or three different occasions, however, in the hallway outside of her classroom, Respondent advised her to mark students present who were actually absent from class.
In or around January of 1991, Hall began following Respondent's advice and, as Moore and Cochran had already done, and Moore was continuing to do, started submitting attendance records that she knew overstated the number of students actually attending her classes. She continued to do so until March or April of that same year.
In submitting falsified attendance records, 3/ Moore, Cochran and Hall were motivated by a desire to retain their jobs teaching at Evans -- jobs they knew were at risk because of the relatively small number of students who were regularly attending 4/ their classes.
Respondent used these attendance records, which he knew were inaccurate, to prepare the community school activity reports it was his responsibility, as assistant principal for community education, to submit to his supervisor each month-- in particular, those portions of these reports which reflected the number of enrolled students in Moore's, Cochran's and Hall's classes and the number of "participant hours" purportedly generated by these classes during the reporting period.
Accordingly, these reports, as Respondent was aware, made it appear that more students were participating in the adult education program at Evans than was actually the case.
Had the truth been revealed in these reports, it may very well have raised questions as to whether Respondent was satisfactorily performing his responsibility of providing the community with what it wanted in the way of adult education classes. Respondent therefore had a motive to keep the truth from his superiors and to mislead them regarding the actual extent of community participation in the adult education program at Evans.
Respondent's superiors, however, ultimately uncovered the truth following an investigation into the matter.
During the investigation, Moore, Cochran and Hall were each questioned on more than one occasion by Michael Malone, the Board's police coordinator.
Initially, neither of them specifically admitted falsifying attendance records. Cochran and Hall, in fact, specifically denied engaging in such activity.
Subsequently, however, they all told Malone the truth and in so doing implicated Respondent.
Moore and Hall did so only after they had met with Cochran, who had already revealed the truth, at Cochran's home to discuss the matter.
Neither Moore nor Hall told Malone about the meeting.
Hall did mention to Malone, though, that she had attended a meeting at the Center at which "Miller had told everyone present about the investigation and how four teachers were in serious trouble" and that, as a result, "she now realized how serious this matter [wa]s."
After Respondent was formally advised of the results of the Board's investigation at a March 11, 1992, conference-for- record, he decided to retire.
His retirement as an employee of the Board was effective May 28, 1992.
CONCLUSIONS OF LAW
The Education Practices Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against the holder of a Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: 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 three years; imposition of 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 Commission may specify. Sections 231.261(8)(b), 231.262(6) and 231.28(1), Fla. Stat.
Subsection (1)(h) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."
Such "provisions of law" are found in, among other places, Section 232.023, Florida Statutes, which provides, in pertinent part, as follows:
The presentation of reasonable and satisfactory proof that any teacher, principal, or other school personnel or school officer has falsified or caused to be falsified attendance records for which he is responsible shall be sufficient grounds for the revocation of his teaching certificate.
Subsections (5)(a) and (h) of Rule 6B-1.006, Florida Administrative Code, are among the "rule [provision]s of the State Board of Education, the penalty for [violation of] which is the revocation of the teaching certificate." Rule 6B-1.006(2), Fla. Admin. Code.
Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, requires a certificate holder to "maintain honesty in all professional dealings."
Subsection (5)(h) of Rule 6B-1.006, Florida Administrative Code, prohibits a certificate holder from "submit[ting] fraudulent information on any document in connection with professional activities."
The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
A teaching certificate may be suspended or revoked based upon the foregoing statutory and rule provisions only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "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, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129,
133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
The Amended Administrative Complaint issued in the instant case alleges that Respondent, while employed during the 1990-91 school year as the assistant principal for community education at L.C. Evans Elementary School in Dade County, Florida, engaged in the following misconduct: "acted unprofessionally and dishonestly in that he directed teachers in the adult education program to falsify attendance records for classes;" "acted unprofessionally and dishonestly in that he directed teachers in the adult education program to pay tuition for students, some of whom never attended;" and "submitted fraudulent information on a document in connection with professional activities." The Amended Administrative Complaint further alleges that, in engaging in such conduct, he violated Section 232.023, Florida Statutes, (Second Count) and subsections (5)(a)(Third Count) and (h)(Fourth Count) of Rule 6B- 1.006, Florida Administrative Code, and, therefore, subsection (1)(h) of Section 231.28, Florida Statutes (First Count), as well.
The evidence clearly and convincingly establishes that, during the 1990-91 school year, while acting in his capacity as the assistant principal for community education at Evans, Respondent instructed teachers in the school's adult education program to falsify attendance records, as alleged in paragraph 3 of the Amended Administrative Complaint.
In so doing, Respondent violated Section 232.023, Florida Statutes, and subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, and, therefore, subsection (1)(h) of Section 231.28, Florida Statutes, as well, as alleged in the First, Second and Third Counts of the Amended Administrative Complaint.
The evidence also clearly and convincingly establishes that, during the 1990-91 school year, while acting in his capacity as the assistant principal for community education at Evans, Respondent incorporated in his monthly activity reports statistics that he knew overstated the extent of community
participation in the school's adult education program, in violation of subsections (5)(a) and (h) of Rule 6B-1.006, Florida Administrative Code, and, therefore, also subsection (1)(h) of Section 231.28, Florida Statutes, as alleged the First, Third and Fourth Counts of the Amended Administrative Complaint.
There is insufficient proof, however, to establish that Respondent engaged in any other conduct alleged in the Amended Administrative Complaint that constituted a violation of any of the foregoing statutory and rule provisions.
Inasmuch as it has been established by clear and convincing evidence that Respondent engaged in the conduct described in paragraphs 54 and 56 of this Amended Recommended Order, in violation of subsection (1)(h) of Section 231.28, Florida Statutes, the Commission has the authority to take disciplinary action against him.
In her proposed recommended order, Petitioner argues that the Commission should
enter a Final Order which revokes the respondent's teaching certificate for a period of five years (5) and that upon recertification as an educator, he be permanently restricted from being an administrator.
Having carefully considered and weighed the facts of the instant case, including the length of Respondent's service as an educator in this state, the Hearing Officer believes that suspending Respondent's teaching certificate for a period of three years and placing him on probation, subject to such conditions as the Commission may deem appropriate, for a period of two years following the end of his suspension represents a more appropriate punishment for his transgressions than that proposed by Petitioner.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations found above and disciplining him for having committed these violations by suspending his teaching certificate for a period of three years and placing him on probation, subject to such conditions as the Commission may deem appropriate, for a period of two years following the end of his suspension.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of February, 1994.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1994.
ENDNOTES
1/ The hearing was originally scheduled to commence on April 28, 1993, but was twice continued, the first time at the request of Respondent and the second time at the request of Petitioner.
2/ Tangie Lloyd, Respondent's secretary, was also present at the meeting.
3/ As a general rule, Respondent or his secretary collected the adult education teachers' attendance records and then delivered them to the Center. On occasion, Respondent would sign these records, indicating that they had been "reviewed by" him.
4/ Respondent had advised them of the minimum enrollment that was necessary for their classes to continue.
5/ While there is clear and convincing evidence to support the allegation that Respondent suggested to Moore that she pay for the registration of students who were unable to afford the registrations fee, in suggesting that Moore provide financial assistance to needy students, Respondent was not, contrary to the allegation advanced in paragraph 4 of the Amended Administrative Complaint, acting "unprofessionally" or "dishonestly."
APPENDIX TO AMENDED RECOMMENDED ORDER IN CASE NO. 93-0346
The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the parties in their post- hearing submittals:
Petitioner's Proposed Findings
1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Amended Recommended Order.
To the extent that this proposed finding suggests that Respondent had line authority over the adult education teachers who taught at Evans, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts that, during the 1990-
91 school year, Respondent told teachers to assist students in the registration process and to pay the tuition of students needing financial assistance, it has been accepted and incorporated in substance. To the extent that it asserts that, in so doing, Respondent "acted unprofessionally and dishonestly," it has been rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Insofar as this proposed finding suggests that Respondent instructed Moore to employ any means, including fraudulent and otherwise unlawful means, to register students, it has been rejected because it is not supported by persuasive competent substantial evidence.
10-11. Accepted and incorporated in substance.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding asserts that Moore falsified attendance records "because Respondent intimidated her," it has been rejected because it not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that Respondent had line authority over Cochran, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
19-21. Accepted and incorporated in substance.
To the extent that this proposed finding states that "Cochran told Ms. Lloyd she was upset about falsifying the attendance records," it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Insofar as this proposed finding suggests that Respondent had line authority over Hall, it has been rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
27-31. Accepted and incorporated in substance.
32. Rejected because it is outside the scope of the specific charges advanced against Respondent in the Amended Administrative Complaint.
33-34. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Respondent's Proposed Findings
To the extent that this proposed finding states that Respondent "graduated from Florida A&M University," it has been accepted and incorporated in substance." Otherwise, it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted and incorporated in substance; Third, fourth and sixth through ninth sentences: Not incorporated in this Amended Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fifth sentence: Insofar as this proposed finding asserts that Respondent retired effective June 1, 1991, rather than May 28, 1992, it has been rejected because it is contrary to the greater weight of the evidence.
First sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Amended Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that the monthly activity report reflected only class enrollment and not class attendance, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence, before comma: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; First sentence, after comma, and second sentence: Accepted and incorporated in substance.
To the extent that this proposed finding states that Guillermo Toro was not present at the meeting, it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Amended Recommended Order because, even if true, it would have no bearing on the outcome of the instant case.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts that, during her initial interview with Malone, Moore did not specifically admit falsifying attendance records, nor did she implicate Respondent in any wrongdoing, it has been accepted and incorporated in substance. Otherwise, it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: To the extent that this proposed finding asserts that, during her September, 1991, interview with Malone, Moore admitted that she "had paid the tuition for the students who were registered but did not attend class," it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance; Second and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony.
First and second sentences: Not incorporated in this Amended Recommended Order because, even if true, they would have no bearing on the outcome of the instant case; Third and fourth sentences: Accepted and incorporated in substance.
First sentence: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that Cochran, during her August 21, 1991, interview, said that the meeting "was in November 1991," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second and third sentences: Accepted and incorporated in substance.
20-21. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that Cochran "changed [her] stor[y]" only after the meeting she had at her house with Moore and Hall, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Cochran and Moore were interviewed by Malone in August and September of 1992, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance; Third sentence: To the extent that this proposed finding asserts that Lloyd told Malone that she "did not hear what Mr. Gilbert said" at the meeting, it has not been incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding asserts that Singleton told Malone that she "did not hear what Mr. Gilbert said" at the meeting, it has been rejected because it is not supported by persuasive competent substantial evidence; Fourth sentence: To the extent that this proposed finding states that Respondent was present at the meeting, it has been accepted and incorporated in substance. To the extent that it states that "he denies telling them to mark people present who were absent," it has been rejected because it is more in the nature of a summary of certain testimony Respondent gave at hearing (which, in any event, the Hearing Officer has found not to be credible) than a finding of fact based upon this testimony.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
26-28. Accepted and incorporated in substance.
29. Not incorporated in this Amended Recommended Order because, even if true, it would have no bearing on the outcome of the instant case.
30-31. To the extent that these proposed findings state that there was a Board investigation of "the community school program and the adult ed classes over there" at Evans and that Malone participated in the investigation, they have been accepted and incorporated in substance. Otherwise, they have not been incorporated in this Amended Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is contrary to the greater weight of the evidence.
Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
35-36. Rejected because the Hearing Officer has found the record evidence supporting these proposed findings less credible than the record evidence to the contrary.
First sentence: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony elicited at hearing than a finding of fact based upon such testimony.
First and second sentences: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Amended Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
COPIES FURNISHED:
Jill M. Boyd, Esquire BOND & BOYD, P.A.
411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302
Gregory A. Chaires, Esquire Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Thomas W. Risavy, Esquire William A. Meadows, Jr., Esquire 6101 Southwest 76th Street
South Miami, Florida 33143
Karen Barr Wilde, Executive Director Education Practices Commission
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Barbara J. Staros, Esquire General Counsel
Department of Education The Capitol, PL-08
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Oct. 06, 1995 | Final Order filed. |
| Feb. 03, 1994 | Amended Recommended Order sent out. |
| Feb. 02, 1994 | Order on Remand filed. (From Karen B. Wilde) |
| Nov. 16, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held September 9 and 10, 1993. |
| Nov. 10, 1993 | Proposed Recommended Order filed. (From William A. Meadows, Jr.) |
| Nov. 05, 1993 | Order sent out. (Re: Respondent`s Motion for Extension of Time Granted) |
| Nov. 04, 1993 | Respondent`s Request for Extension of Time filed. |
| Nov. 03, 1993 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 04, 1993 | Transcript (3) filed. |
| Sep. 09, 1993 | CASE STATUS: Hearing Held. |
| Sep. 07, 1993 | (Respondent) Prehearing Stipulation filed. |
| Sep. 07, 1993 | (Petitioner/Respondent) Prehearing Stipulation filed. |
| Aug. 19, 1993 | Order sent out. (hearing rescheduled for 9/9-10/93; Miami; 9:00am) |
| Aug. 13, 1993 | (Petitioner) Motion for Continuance filed. |
| Aug. 03, 1993 | Respondent`s Amended Witness and Exhibit List filed. |
| Jul. 12, 1993 | Order sent out. (Motion to amend administrative complaint, granted) |
| Jun. 28, 1993 | (Petitioner) Motion for Leave to Amend Administrative Complaint filed. |
| Jun. 28, 1993 | (Petitioner) Amended Administrative Complaint filed. |
| May 26, 1993 | (Respondent) Re-Notice of Taking Deposition filed. |
| May 17, 1993 | Respondent`s Response to Petitioner`s Request for Production filed. |
| Apr. 26, 1993 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 26, 1993 | Order sent out. (hearing rescheduled for August 19 and 20, 1993; 9:00am; Miami) |
| Apr. 21, 1993 | (Respondent) Motion for Continuance filed. |
| Apr. 21, 1993 | (Respondent) Motion for Continuance filed. |
| Apr. 08, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Apr. 05, 1993 | Notice of Appearance filed. (from William A. Meadows) |
| Mar. 24, 1993 | (Petitioner) Notice of Appearance and Substitution of Counsel filed. |
| Mar. 17, 1993 | (Petitioner) Notice of Service of Interrogatories; Petitioner`s First Interrogatories to Respondent; Request for Production; Petitioner`s First Request for Admissions by Respondent filed. |
| Feb. 10, 1993 | Notice of Hearing sent out. (hearing set for April 28-29, 1993; 9:00am; Miami) |
| Feb. 04, 1993 | (Petitioner) Response to Initial Order filed. |
| Jan. 29, 1993 | Initial Order issued. |
| Jan. 25, 1993 | Agency referral letter; Administrative Complaint; Election of Rights;Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 22, 1994 | Agency Final Order | |
| Jan. 28, 1994 | Remanded from the Agency | |
| Nov. 16, 1993 | Recommended Order | Adminsitrator who told teachers to falsify attendance status and who used these falsified attendance status in his monthly report guilty of misconduct. |
DEPARTMENT OF EDUCATION vs. FLOYD R. JAGGEARS, 93-000346 (1993)
SARASOTA COUNTY SCHOOL BOARD vs BRIAN BERRY, 93-000346 (1993)
JIM HORNE, AS COMMISSIONER OF EDUCATION vs NATALIE WHALEN, 93-000346 (1993)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs EDWARD THOMAS, 93-000346 (1993)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs KAREN ROSALIE SCHIEFLER, 93-000346 (1993)
