STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner of Education,

Petitioner,

vs.

PETER NEWTON,

Respondent.

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) Case No. 05-0102PL

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RECOMMENDED ORDER

On March 31, 2005, an administrative hearing in this case was held in Clearwater, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated November 8, 2004,

John L. Winn, as Commissioner of Education (Petitioner), alleged that Peter Newton (Respondent) provided improper assistance to students while administering a series of tests used by the Pinellas County School District to measure the academic progress of the students and the school.

Respondent disputed the allegations and filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled the hearing.

On March 29, 2005, the parties filed a pre-hearing stipulation. On April 4, 2005, (subsequent to the hearing), the parties filed an amended stipulation and a Motion to Amend the Prehearing Stipulation. The Motion is hereby granted. The Pre- Hearing Stipulation as amended included a statement of admitted facts that, in part, form the basis for the Findings of Fact set forth herein.

During the March 31 hearing, Petitioner presented the testimony of six witnesses, and had Exhibits numbered 1 through 4 admitted into evidence. Respondent testified on his own behalf.

During the hearing, Respondent offered one exhibit, identified as a portion of the transcript from an earlier hearing (wherein the school district took action to terminate

Respondent's employment). The purpose of the exhibit was to impeach the testimony of a particular witness who testified in both hearings. The exhibit was admitted, and Respondent was directed to photocopy the relevant portion of the transcript and file the exhibit subsequent to the close of the hearing.

The exhibit has not been filed, but the specific testimony offered by the witness in this case was unnecessary. The essential allegations of the Administrative Complaint were conceded in the amended statement of admitted facts. During the March 31 hearing, the witness testified that during the test, Respondent worked a math problem for the entire class. This factual allegation was not specifically set forth in the Administrative Complaint, and the witness' testimony related to the math problem has been treated as immaterial and has been disregarded.

The Administrative Complaint also contained an allegation related to a 1981 traffic incident involving Respondent about which no evidence was presented at the hearing. This allegation has likewise been disregarded.

The one-volume Transcript of the hearing was filed on April 15, 2005. Both parties filed Proposed Recommended Orders pursuant to a schedule determined by the parties at the hearing.

FINDINGS OF FACT

1. Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007.

2. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District.

3. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years.

4. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students.

5. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered

   according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade.

6. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests.

7. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests.

8. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses.

9. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught.

10. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions.

11. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules.

12. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade.

13. Respondent's improper assistance to his students prevented school officials from obtaining an accurate

    measurement of the academic abilities of his students. The test results were invalidated and the students were retested.

14. According to the parties, a newspaper article related to the matter was published in a local newspaper.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2004).

16. Petitioner has the burden of proving by clear and convincing evidence the factual allegations set forth in the Administrative Complaint against Respondent. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The grounds established to support imposition of disciplinary action against Respondent's teaching certificate must be those specifically alleged in the Administrative Complaint. Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

    Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2d DCA 1984). Clear and convincing evidence is that which is credible, precise, explicit, and lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of

    conviction, without hesitancy, as to the truth of the allegations. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, based primarily on the amended statement of admitted facts, the burden has been met.

17. The Administrative Complaint charges that Respondent's conduct is a violation of Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2004), which provides, in part, as follows:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

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       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

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

       
       

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       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

18. The evidence fails to establish that Respondent has violated Subsection 1012.795(1)(c), Florida Statutes (2004). The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes (2004). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, provides guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. Castor v. Lawless, 1992 WL 880829 (EPC Final Order 1992).

19. "Immorality" is defined by Florida Administrative Code Rule 6B-4.009(2) as follows:

    Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education

    profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

20. "Gross immorality" has been described as misconduct that is more egregious than mere "immorality." As stated in Brogan v. Mansfiled, DOAH Case No. 96-0286 (EPC Final Order 1996):

    The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).

    
    

21. "Moral turpitude" is defined by Florida Administrative Code Rule 6B-4.009(6) as follows:

    Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

22. Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong

    was not contemplated. State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660 (1933).

23. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).

24. Respondent's improper assistance to students during administration of the portfolio tests does not rise to the level of gross immorality or moral turpitude.

25. The evidence fails to establish that Respondent has violated Subsection 1012.795(1)(f), Florida Statutes (2004). Although the Pinellas County School Board does not currently employ Respondent, there is no credible evidence that Respondent's action in this case seriously affected his effectiveness as an employee of the school board.

26. The evidence establishes that Respondent has violated Subsection 1012.795(1)(i), Florida Statutes (2004), by violating one of the Principles of Professional Conduct for the Education Profession as set forth herein.

27. The Administrative Complaint charges that the Respondent's conduct is a violation of Florida Administrative

    Code Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), which in material part provides as follows:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/ or physical health and/or safety.

          
          

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

             1. Shall maintain honesty in all professional dealings.

          
          

28. The evidence establishes that Respondent is guilty of a violation of Florida Administrative Code Rule 6B-1.006(3)(a). One of the purposes of the test was to ascertain the strengths and weaknesses of individual students so as to permit additional and appropriate instruction to meet the needs of the students.

29. By assisting his students in determining correct responses to test questions, Respondent prevented the tests from providing a reliable assessment of his students' academic abilities. Absent the retesting of Respondent's students that

    occurred after the scores for the tests administered by Respondent were invalidated, it would have been impossible for school officials to determine and meet the needs of the individual students Respondent believed he had helped.

30. The evidence fails to establish that Respondent is guilty of a violation of Florida Administrative Code

Rule 6B-1.006(5)(a). There is no credible evidence that Respondent attempted to deceive or mislead school officials about his administration of the portfolio tests to his students.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code

Rule 6B-1.006(3)(a), and placing him on probation for a period of one year.

DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2005.

COPIES FURNISHED:

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

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 05-000102PL

Orders for Case No: 05-000102PL