STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6936

)

MELODY SPRUELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 4, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, Florida 32301

For Respondent: William H. Maness, Esquire

112 West Adams Street, Suite 808 Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

Whether the Education Practices Commission should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in an Administrative Complaint of November 9, 1993.

PRELIMINARY STATEMENT

On November 9, 1993, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent, Melody Spruell, seeking to discipline her Florida teaching certificate. On November 20, 1993, the Respondent executed an Election of Rights form requesting a formal administrative hearing to contest the Administrative Complaint.

On December 7, 1993, the Petitioner filed the request for hearing with the Division of Administrative Hearings. The matter was designated case number 93- 6936 and was assigned to the undersigned.

The final hearing was scheduled for April 4 and 5, 1994, by Notice of Hearing entered December 17, 1993.

At the final hearing the Petitioner presented the testimony of Laurel Anderson, Mike Christeas, Jr., Susan Christeas, Linda Stevens, Ulysses Stockling, Alice Winesett, Shirley Kravitz, Jeff Minton, Rhonda Minton and James

H. Jaxon. The Petitioner also offered six exhibits which were accepted into evidence.

The Respondent testified on her own behalf. The Respondent also offered fifteen exhibits (Respondent's exhibits A through F and H through P), which were accepted into evidence. Respondent's exhibit G was not offered into evidence.

The record of this proceeding remained open to allow the Respondent to take and file the deposition testimony of Doris K. Blanford. Ms. Blanford's deposition was filed April 14, 1994.

A transcript of the final hearing was ordered and filed April 28, 1994.

The parties were informed at the close of the final hearing that they could file proposed recommended orders. The parties have filed proposed recommended orders.

The proposed recommended orders filed by the parties contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Respondent.

   
   

   1. The Respondent, Melody Spruell, holds Florida teaching certificate number 334670. The certificate was issued by the Florida Department of Education and authorizes Ms. Spruell to work in the areas of English, Administration and Guidance Counseling. The certificate is valid through June 30, 1997.

      
      

   2. Ms. Spruell earned an undergraduate degree in English Education in 1972 from the University of Georgia. She also earned a masters degree in Administration and Supervision in 1977 and a masters degree in Guidance in 1982, from the University of North Florida.

      
      

   3. Ms. Spruell has completed the required course work toward a doctorate degree and is revising her dissertation. Ms. Spruell's doctorate work has been with the University of Florida.

      
      

   4. Ms. Spruell taught English from 1972 through 1985, and was on sabbatical leave from 1985 through 1986.

      
      

   5. Beginning with the 1986-1987 school year and ending in 1993, Ms. Spruell was employed at Terry Parker Senior High School (hereinafter referred to as "Terry Parker"), in the Duval County School District.

      
      

   6. Ms. Spruell was an English and Peer Counseling teacher during the 1986- 1987 school year.

      
      

   7. Since the 1987-1988 school year, Ms. Spruell has been a guidance counselor at Terry Parker. In February of 1990 Ms. Spruell was appointed as the head of the guidance department of Terry Parker.

   8. Ms. Spruell received very good evaluations from James H. Jaxon, Principal of Terry Parker from the 1990-1991 school year through the 1992-1993 school year.

      
      

2. Charges Relating to Michael Christeas.

   
   

   1. During the 1991-1992 school year, Michael Christeas was a junior at Terry Parker. As the result of a conversation between Mr. Christeas and Ms. Spruell, Mr. Christeas did not believe that it was necessary that he take Algebra II in order to qualify for colleges that he was interested in attending after high school.

      
      

   2. Mr. Christeas played football at Terry Parker. During his senior year, the 1992-1993 school year, several universities expressed interest in Mr. Christeas playing football for them. At least one of the schools that was interested in Mr. Christeas informed him that he would need credit for Algebra II in order to qualify for admission.

      
      

   3. Mr. Christeas, based upon his understanding of Ms. Spruell's advice to him during his junior year, had not taken Algebra II during the first semester of his senior year. When he learned that some schools would require Algebra II, he so informed Ms. Spruell.

      
      

   4. During the periods of time relevant to this proceeding, Terry Parker operated on a semester schedule. The first semester of the 1992-1993 school year began August 25, 1992 and ended January 20, 1993. The second semester was began January 21, 1993 and ended June 9, 1993.

      
      

   5. The first semester was further divided into the first and second quarters: August 25, 1992 to October 28, 1992 was the first quarter, and October 29, 1992 to January 20, 1993 was the second quarter.

      
      

   6. The second semester was further divided into the third and fourth quarters: January 21, 1993 to March 26, 1993 was the third quarter, and March 30, 1993 to June 9, 1993 was the fourth quarter.

      
      

   7. Mr. Christeas' conversation with Ms. Spruell about needing Algebra II took place some time during the end of the second quarter/first semester.

      
      

   8. Ms. Spruell was concerned that she had misinformed Mr. Christeas about whether he needed to take Algebra. Therefore, Ms. Spruell offered to create a class just for him so that he could obtain credit for Algebra II. She led Mr. Christeas to believe that he would be awarded passing grades for the "class." She asked Mr. Christeas not to say anything about the class to anyone else.

      
      

   9. Ms. Spruell asked Doris K. Blanford, an Algebra teacher, if she would tutor Mr. Christeas during the rest of the first semester and then teach a one- on-one Algebra II course to Mr. Christeas during the second semester. Ms. Blanford agreed.

      
      

   10. During the first and second quarters, first semester, Mr. Christeas did not take Algebra II. While he was tutored some by Ms. Blanford a few days a week during the morning, neither Ms. Blanford or Mr. Christeas believed that he was taking Algebra II during the first semester. Ms. Blanford did not award Mr. Christeas any grade during the first semester. Nor did Mr. Christeas attend any "classes" with Ms. Blanford during the first semester of the 1992-1993 school year.

   11. On or about October 28, 1992, at the end of the first quarter, first semester, Mr. Christeas' report card did not indicate that he was taking Algebra II and did not include any grade for Algebra II or any class for the fifth period of the school day. See PE exhibit 2A.

       
       

   12. Mr. Christeas' class schedule as of January 15, 1993, indicated that Mr. Christeas was scheduled to take Law Studies during the fifth period. See PE exhibit 1A. Algebra II was not listed on the January 15, 1992 copy of Mr. Christeas' class schedule.

       
       

   13. On a class schedule of January 20, 1993, Mr. Christeas was inaccurately listed as taking an Algebra II class from Ms. Blanford during the fifth period of the first and second quarters of the first semester. PE exhibit 1B. Ms. Blanford did not teach Algebra II during the fifth period. Nor did she teach an Algebra II course to Mr. Christeas at any time. Ms. Spruell caused Mr. Christeas' schedule to reflect that he was taking Algebra II.

       
       

   14. On Mr. Christeas' report card issued on January 21, 1993, at the end of the second quarter, first semester, it incorrectly reflects that Mr. Christeas took Algebra II during both quarters and that he earned a grade of "C" during each quarter. Ms. Spruell caused Mr. Christeas to be awarded these grades.

       
       

   15. Mr. Christeas did not take or complete Algebra II during the second semester of the 1992-1993 school year.

       
       

   16. The time that Mr. Christeas spent with Ms. Blanford during the first and second semesters was sporadic and irregular. At some point during the second semester, Mr. Christeas quit coming to see Ms. Blanford. Despite having agreed to teach Mr. Christeas in a one-on-one "class" during the second semester, Ms. Blanford took no action when Mr. Christeas quit coming to see her.

       
       

   17. The alleged "class" was never disclosed to, or approved by, Mr. Jaxon or any other official of Terry Parker.

       
       

   18. At the request of Mr. Christeas, Ms. Spruell caused a "mid-year update" to be sent to a university on behalf of Mr. Christeas. In the update, Ms. Spruell stated: "Please note that his schedule reflects the grades for Algebra II which he added first quarter." This information was incorrect and is inconsistent with Ms. Spruell's explanation of her intent that Mr. Christeas only receive credit for Algebra II if he took a one-on-one class. Ms. Spruell knew that Mr. Christeas had not taken Algebra II during the first quarter.

       
       

   19. Mr. Jaxon became aware of the Algebra II "class" for Mr. Christeas during March of 1993. On or about March 5, 1993, before report cards for the third quarter were issued, Mr. Jaxon confronted Ms. Spruell. Mr. Jaxon had at least three meetings with Ms. Spruell concerning Mr. Christeas (hereinafter referred to as the "March Meetings"). Two of the March Meetings were also attended by Laurel Anderson, a Vice-Principal.

       
       

   20. During the first of the March Meetings, Ms. Spruell was confronted with PE exhibits 1 and 2. Ms. Spruell admitted that she had created the "class" for Mr. Christeas and that she had done so because he needed Algebra II to be considered for a football scholarship by some schools. According to Ms. Anderson, Ms. Spruell admitted that "it had been a foolish thing to do but that she was trying to best assist the student."

   21. During the second of the March Meetings, which was also attended by Mr. Christeas' mother, Ms. Spruell took sole responsibility for the incident.

       
       

   22. During the third of the March Meetings, Ms. Spruell indicated that Josephine Mary Howard, a Computer Clerk I, had added the Algebra II class for Mr. Christeas into the computer maintained at Terry Parker. Ms. Howard denied this assertion.

       
       

   23. During the March Meetings, Ms. Spruell admitted that:

       
       

       1. She had created a "class" in Algebra II for Mr. Christeas. The gist of her admission to Mr. Jaxon was that she had created the Algebra II class "on paper."

       2. She did so because Mr. Christeas needed Algebra II to get a football scholarship from some schools that were interested in him.

       3. She added the class to the computer at Terry Parker herself.

       4. She knew Ms. Blanford was meeting with Mr. Christeas but not for the required number of hours for a class at Terry Parker.

       5. She knew Ms. Blanford was not meeting with Mr. Christeas at the time scheduled for the class.

       6. She "had assigned grades herself for the first two grading periods." Page 170, lines

          1-2, transcript of final hearing. See also page 184, lines 9-11, transcript of final hearing.

       7. She had prepared the mid-year report that indicated that Mr. Christeas was getting

          "Cs" in Algebra II. She said it was a "mistake."

          
          

   24. The explanation of the events surrounding Mr. Christeas which Ms. Spruell gave during the final hearing was not raised by Ms. Spruell at any time during the March Meetings. Ms. Spruell's explanation has been rejected.

       
       

   25. Paragraph J, Page 30, of the Duval County Public Schools' Pupil Progression Plan, Respondent's exhibit N, provides the "Criteria for Earning Credit/Student Evaluation." That paragraph provides the following:

       
       

       In order to earn standard course credit for a standard diploma and unless otherwise stated in this policy, each student, including those designated as exceptional, shall demonstrate mastery of the specific objectives for all required courses in

       which the student is enrolled, as determined by the teacher. This determination shall include the averaging of grade points derived from the student's performance on the applicable district-level criterion- referenced test for that required course. (Refer to Appendix F). Appropriate procedures shall be followed by teachers to observe and assess each student's performance

       continuously throughout the school year to determine if expected achievement standardso are being met (s232.2454, F.S.)

       
       

       Mastery of the specific objectives for all other courses in which the student is enrolled, as determined by the teacher, shall be the criterion for passing those courses and earning course credit.

       
       

       A mandatory final examination in each subject shall be given to all students and shall count as part of the student's classroom final average.

       
       

   26. Paragraph B, Page 39, of the Duval County Public Schools' Pupil Progression Plan, Respondent's exhibit N, provides the "Hourly Instructional Requirement for Credit." That paragraph provides the following:

       
       

       Hourly Instructional Requirement for Credit:

       Pursuant to s232.2462, F.S., for the purposes of requirements for high school graduation, one full credit means a minimum of 150 hours of bona fide instruction in a designated course of study. The hourly requirements

       for one-half the requirements specified for a full-credit (75 hours). Students in grades 9-12 shall be in attendance for 135 hours of instruction, unless they have demonstrated mastery of the student performance standards in the course of study as provided by school board rules.

       Unless otherwise provided by district school board rule, the difference between the 135 hour minimum requirement and the 150 hour definition of full credit may at the discretion of the secondary school principal be used for non-instructional extracurricular activities.

       
       

3. Charges Relating to Amy Spruell.

   
   

   1. Amy Spruell is the daughter of the Respondent.

      
      

   2. Amy Spruell was a student at Terry Parker during the 1991-1992 school year.

      
      

   3. During the 1991-1992 school year Amy Spruell took Algebra II Honors and English Honors. Amy Spruell's teachers awarded her "Bs" in both classes.

      
      

   4. The permanent record of grades for Amy Spruell incorrectly reflects that she received an "A" in both courses.

      
      

   5. The change in Amy Spruell's grades from "Bs" to "As" took place some time after June 6, 1992.

   6. Ms. Spruell had access to the permanent computer record of grades and the knowledge of how to change grades on that record.

      
      

   7. The evidence failed to prove that Ms. Spruell changed her daughter's grades for Algebra II Honors or English Honors.

      
      

4. Charges Relating to Vonda Callis.

   
   

   1. Between 1989 and 1990, Vonda Callis' permanent records were changed. A grade of "F" Ms. Callis had received in World History and General Math II was changed to "D".

      
      

   2. The evidence failed to prove who made the change in Ms. Callis' grades.

      
      

5. Loss of Effectiveness.

1. In light of Ms. Spruell's impropriety concerning Mr. Christeas, Ms. Spruell has lost her effectiveness as a teacher.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

3. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

4. In this proceeding, the Petitioner has the ultimate burden to establish by clear and convincing evidence that Ms. Spruell committed the violations contained in the Administrative Complaint entered by the Petitioner. See Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986).

   
   

   1. The Charges Against Ms. Spruell.

      
      

5. The EPC is charged with authority to impose discipline against a teacher's certificate in Florida. Sections 231.261, 231.262 and 231.28, Florida Statutes.

   
   

6. In this proceeding, the Petitioner has alleged that Ms. Spruell has violated Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B- 1.006(3)(a) and (e), 6B-1.006(4)(b), and 6B-1.006(5)(a), (h) and (i), Florida Administrative Code.

7. Section 231.28(1), Florida Statutes, provides, in pertinent part:

   
   

   (1) The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9), or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years,

   with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; . . . or to impose any other penalty provided by law, provided it can be shown that such person:

   . . . .

   (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

   . . . .

   (i) Has 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.

   . . . .

   
   

8. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part:

   
   

   1. The following disciplinary rule shall constitute the Principals of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

   2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual's teacher's certificate, or the other penalties provided for by law.

   3. Obligation to the student requires that the individual:

      1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

         . . . .

         (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

         . . . .

   4. Obligation to the public requires that the individual:

      
      

      . . . .

      (b) Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

      . . . .

      
      

   5. Obligation to the profession of education requires that the individual:

      
      

      1. Shall maintain honesty in all professional dealings.

   . . . .

   1. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for professional position.

   2. Shall not knowingly withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment.

   . . . .

   
   

   1. Charges Relating to Mr. Christeas.

      
      

9. The evidence in this case proved the allegations of fact concerning Mr. Christeas. Ms. Spruell's conduct with regard to Mr. Christeas constitutes "personal conduct which seriously reduces [Ms. Spruell's] effectiveness as an employee of the school board." Ms. Spruell has, therefore violated Section 231.28(1)(f), Florida Statutes, as alleged in the First Count of the Administrative Complaint.

   
   

10. Ms. Spruell's conduct with regard to Mr. Christeas also constitutes a violation of the following rules:

    
    

    1. Rule 6B-1.006(3)(a), Florida Administrative Code (Third Count). By falsifying Mr. Christeas' grades for

       Algebra II, she undermined his learning process.

    2. Rule 6B-1.006(4)(b), Florida Administrative Code (Fifth Count). Ms. Spruell intentionally distorted and misrepresented the facts concerning Mr. Christeas' grade for Algebra II.

    3. Rule 6B-1.006(5)(a), Florida Administrative Code (Sixth Count). Ms. Spruell failed to maintain honesty in her professional dealings by falsifying grades for Mr. Christeas.

    4. Rule 6B-1.006(5)(h), Florida Administrative Code (Seventh Count). Ms. Spruell submitted fraudulent information on a document in connection with her professional activities.

11. Based upon the foregoing, Ms. Spruell violated Section 231.28(1)(i), Florida Statutes, by violating rules of the State Board of Education as alleged in the Second Count of the Administrative Complaint.

    
    

12. The evidence failed to prove that Ms. Spruell's conduct with regard to Mr. Christeas constituted a violation of the following rules:

    
    

    1. Rule 6B-1.006(3)(e), Florida Administrative Code (Fourth Count). The Petitioner failed to present evidence to support a finding that Mr. Christeas was in anyway embarrassed by Ms. Spruell's conduct.

       
       

    2. Rule 6B-1.006(5)(i), Florida Administrative Code (Eighth Count). The Petitioner failed to prove that Ms. Spruell made any representation on her "own or another's application for a professional position."

    
    

    1. Charges Relating to Amy Spruell and Ms. Callis.

    
    

13. The evidence in this case failed to prove that Ms. Spruell committed any of the actions concerning Amy Spruell or Ms. Callis alleged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding that Melody

Spruell is guilty of the charges contained in the First, Second, Third, Fifth, Sixth, and Seventh Counts of the Administrative Complaint based upon the allegations of paragraphs 1, 2 and 3(a) and (b) of the Administrative Complaint. It is further

RECOMMENDED that the Petitioner dismiss the charges contained in the Fourth and Eighth Counts of the Administrative Complaint based upon the allegations of paragraphs 1, 2 and 3(a) and (b) of the Administrative Complaint. It is further

RECOMMENDED that the Petitioner dismiss the charges based upon the allegations of paragraphs 3(c) and (d) against Ms. Spruell. It is further

RECOMMENDED that Ms. Spruell be issued a letter of reprimand, that her certificate be suspended for a period of two years and that she be placed on probation for a period of three years upon her reemployment.

DONE AND ENTERED this 16th day of June, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

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 June, 1994.

APPENDIX

Case Number 93-6936

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The EPC's Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 5 and 7.

3. Accepted in 27

4. Accepted in 20.

5. Accepted in 21.

6. Accepted in 19.

7. Accepted in 22.

8-9 Accepted in 21.

1. Accepted in 18 and 23-24.

2. Accepted in 11.

3. Accepted in 9.

4. Accepted in 10.

5. Accepted in 16.

1. Accepted in 17.

2. Subordinate. See 11 and 16.

3. Accepted in 16 and 22.

4. Accepted in 18 and 24.

5. Subordinate finding of fact.

6. Not supported by the weigh of the evidence. See 42-43.

1. Accepted in 42.

2. Accepted in 37-38.

3. Accepted in 37.

4. Accepted in 38.

5. Accepted in 37.

6. Accepted in 40.

25-26 Accepted in 44.

Ms. Spruell's Proposed Findings of Fact

1. Accepted in 2-7 and hereby accepted.

2. Not supported by the weight of the evidence. The portions of the Duval County Pupil Progression Plan referred to are taken out of context.

3. See 18 and 21.

4. Not supported by the weight of the evidence. See 16, 22 and 31.

5. Accepted in 24 and hereby accepted.

6. Not supported by the weight of the evidence. See 26. Although this proposed finding correctly summarizes some of Ms. Spruell's testimony, that testimony has been rejected.

7. Accepted in 37-39.

8. Hereby accepted except the proposed finding that Ms. Spruell did not go back to Parker until Summer School Graduation.

9. See 4. The quotation is not relevant to this proceeding.

10. Accepted in 43.

11. Hereby accepted.

12. Not supported by the weight of the evidence. 13-14 Hereby accepted.

15 Not supported by the weight of the evidence.

COPIES FURNISHED:

William H. Maness, Esquire

112 West Adams Street, Suite 808 Jacksonville, Florida 32202

Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302

Karen B. Wilde

Florida Department of Education The Florida Education Center Room 301

Tallahassee, Florida 32399

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 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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DOUG JAMERSON, as NOT FINAL UNTIL TIME EXPIRES TO

Commissioner of Education, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 94-2866

v. DOAH CASE NO. 93-6936

MELODY ALLEN SPRUELL,

Appellee.

/ Opinion filed July 13, 1995.

An appeal from an order of the Education Practices Commission.

J. David Holder, Tallahassee, for appellant.

William H. Maness, Jacksonville, for appellee.

PER CURIAM.

Appellant Jamerson, as Commissioner of Education, challenges an order of the Education Practices Commission on the grounds that the Commission abused its discretion and exceeded its role by substituting its views for that of the hearing officer. The Commission rejected the hearing officer's findings of fact in paragraphs 22, 23, 24, 26, 31f and 44 of the recommended order, rejected the conclusions of law in paragraphs 52, 53a, 53b, and 53c and reduced the recommended penalty.

Because competent substantial evidence supports the findings of fact, we must reverse the Commission's order and remand with directions to reinstate the hearing officers findings. See s 120.57(1)(B)(10)("The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law."); Heifetz v. Dep't of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985)("The agency may not reject the hearing officer's finding unless there is no competent substantial evidence from which the finding can be reasonably inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence

to fit its desired ultimate conclusion."); Dunham v. Highlands County School Bd., 652 So.2d 894, 896 (Fla. 2d DCA 1995)("section 120.57(1)(b)(10) does not permit the school board to reject the hearing officer's findings if there is competent substantial evidence from which the findings could be reasonably inferred . . . It was the sole province of the hearing officer to resolve conflicts . . . . Once the hearing officer's findings of fact are reinstated, the school board's conclusions of law must fail because they are premised upon the school board's substituted findings")

The Commission's conclusions of law must also fail because they are premised upon the Commission's substituted findings. Dunham, 652 So.2d at 896. The reduced penalty likewise fails because it is predicated upon the Commission's improper findings and conclusions. Moreover, the Commission did not state with particularity its reasons for reducing the penalty in the order as required by the Administrative Procedures Act. s 120.57(1)(b)10, Fla. Stat. ("The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action."). Accordingly, we, reverse and remand, for entry of a final order consistent with the order recommended by the hearing officer.

REVERSED AND REMANDED.

BARFIELD, KAHN and DAVIS, JJ., CONCUR.

================================================================= AGENCY FINAL ORDER ON REMAND

=================================================================

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

DOUG JAMERSON, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 93-218-RT

vs. DOAH CASE NO. 93-6936

1ST DCA CASE NO. 94-2866

MELODY ALLEN SPRUELL,

Respondent.

/

FINAL ORDER ON REMAND

Respondent, MELODY ALLEN SPRUELL, holds Florida educator's certificate no.

334670. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on June 16,1994, was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on August 9,1994, in Tampa, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Attorney at Law. Respondent was represented by William H. Maness, Attorney at Law. The panel reviewed the entire record in this case.

After hearing argument of counsel for both sides, the panel entered an Amended Final Order whereby it rejected some of the Hearing Officer's Findings of Fact and Conclusions of Law and imposed a penalty less than that recommended by the Hearing Officer.

Petitioner appealed said Amended Final Order to the First District Court of Appeal which resulted in an opinion by said court in the case of Doug Jamerson as Commissioner of Education, Appellant, vs. Melody Ann Spruell, Appellee, Case No. 94-2866 wherein the Court reversed the panel's Amended Final Order and directed that the panel impose the penalty recommended by the Hearing Officer.

On September 14,1995, the District Court of Appeal issued its Mandate directing compliance with said Opinion.

Whereupon the matter recurred before a meeting of a panel of the EPC in Tampa, Florida on November 30,1995. At said meeting, Petitioner was represented by Ronald J. Stowers, Attorney at Law, and Respondent was present and represented by William H. Maness.

WHEREFORE, pursuant to such Mandate the panel hereby adopts the Hearing Officer's Findings of Fact and Conclusions of Law and it is:

ORDERED that Respondent be issued the letter of reprimand which was issued and sent pursuant to the previous Amended Final Order; and it is further

ORDERED that the Respondent's teaching certificate be, and the same is, hereby suspended for a period of two years from April 6,1993 through April 5,1995, and it is further

ORDERED that upon her future employment in a position requiring a Florida educator's certificate, she shall be placed on three employment years of probation, the conditions of which are that during such period she shall:

1. Notify EPC immediately upon her employment as an educator in any public or private school in the State of Florida.

   
   

2. Arrange for her immediate supervisor to submit performance reports to the EPC at least every three months.

   
   

3. Submit true copies of all formal observation/evaluation forms within ten days of issuance.

Additionally, during the first six months of each probation year, Respondent shall pay the EPC the sum of $150 to defray the costs of monitoring probation.

This Order becomes effective upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120-68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing.

DONE AND ORDERED, this 14th day of December, 1995.

Keith Yarbrough, Presiding Officer

Florida Admin. Law Reports I HEREBY CERTIFY that a copy of

the foregoing Order in the Dr. Larry L. Zenke, Supt. matter of Jamerson vs. Melody Duval County Schools Allen Spruell, was mailed to

1701 Prudential Dr. William H. Maness, Esquire 112 Jacksonville, Fl. 32207 W. Adams St., Suite 808,

Jacksonville, Fl. 32202,this

Jimmie Summerlin 21st day of December 1995, by

Dir., Personnel U.S. Mail. Duval County Schools

Ronald G. Stowers

Attorney at Law KAREN B. WILDE, Clerk 1701 The Capitol

Tallahassee, Florida 32399

Docket for Case No: 93-006936

Orders for Case No: 93-006936