STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner ) of Education,1 )

)

Petitioner, )

)

vs. ) Case No. 05-3220PL

)

HARRIETT S. PARETS )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, for decision based upon the Parties Joint Motion and Stipulation for the Entry of Findings of Fact and Conclusions of Law in a Recommended Order.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Mathew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A. The Barrister’s Building

1615 Forum Place, Suite 500 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative

Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated July 27, 2004, then Florida Commissioner of Education, Jim Horne, charged Harriett

1. Parets with having violated Subsections 1012.795(1)(c, (f), and (i), Florida Statutes (2003). Ms. Parets timely disputed the factual allegations in "item 3 (pages 1 and 2)" of the Administrative Complaint by executing an Election of Rights form in which she elected the "Settlement Option." By selecting the Settlement Option, Ms. Parets requested an opportunity to negotiate a settlement of the charges against her, and, if that effort failed, a "Formal" hearing on the charges.

   On December 7, 2004, after efforts at settlement apparently failed, Ms. Parets' request for hearing was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an evidentiary hearing. The matter was designated DOAH Case No. 04-4393PL and was assigned to the undersigned.

   On April 2, 2005, Petitioner filed a Motion to Cancel Hearing to Relinquish Jurisdiction to EPC. Petitioner represented that the parties had "negotiated a Settlement Agreement resolving the issues contained in the Administrative Complaint." Therefore, Petitioner requested that the final

   hearing of this matter be canceled and that jurisdiction be relinquished to the "EPC for its consideration of the Settlement Agreement." By Order Closing File entered April 5, 2005, Petitioner's Motion was granted "with leave for either party to request the Division to re-open the case, should the settlement be disapproved by the Education Practices Commission."

   By letter filed August 31, 2005, counsel for Petitioner filed a letter representing that the proposed Settlement Agreement reached by the parties had been rejected by the Education Practices Commission. Therefore, Petitioner requested that the matter be re-opened. By Order Re-Opening DOAH Case No. 04-4393PL as DOAH Case No. 05-3220PL, the matter was

   re-opened on September 7, 2005.

   
   

   After several continuances of the final hearing, the final hearing was finally set for March 1 and 2, 2006.

   On February 27, 2006, the parties filed Parties Joint Motion and Stipulation for the Entry of Findings of Fact and Conclusions of Law in a Recommended Order. The parties represented the following:

   A previous hearing involving the employing school district had been held on May 19-20, 2003 before Judge Parrish concerning the same factual allegations. The parties expect the same witnesses and evidence will be used in the presently scheduled hearing on March 1-2, 2006. Therefore, to avoid the unnecessary expenditure of time, funds and judicial effort, the parties agree to

   stipulate to the following Findings of Fact and Conclusions of Law for inclusion by the Administrative Law Judge in his Recommended Order to the Education Practices Commission

   . . . .”

   
   

   Based upon the foregoing, the parties requested in their Joint Motion the following:

   1. An order be entered approving the Joint Stipulation of the above Findings of Facts and Conclusions of Law;

      
      

   2. That the hearing scheduled for March 1-2, 2006 be cancelled;

      
      

   3. That the parties be provided ten (10) days from entry of order approving Joint Stipulation, in which to submit their recommendations for a proposed penalty for inclusion in the Recommended Order; and

      
      

   4. A Recommended Order be issued adopting the Jointly Stipulated Findings of Fact and Conclusions of Law, in addition to a recommended penalty.

By Order entered February 28, 2006, the final hearing scheduled for March 1 and 2, 2006, was cancelled. By an Order Accepting Stipulation and Setting Time for Filing Proposed Orders, the Joint Stipulation of Findings of Fact and Conclusions of Law was accepted and the parties were given until March 20, 2006, to file proposed recommended orders. With the entry of this Recommended Order, all of the relief requested by the parties in their Joint Motion has been granted.

On March 20, 2006, Petitioner filed a Proposed Recommended Order for Appropriate Penalty and Respondent filed Respondent’s

Proposed Recommended Order. Both post-hearing submittals have been fully considered.

On March 31, 2006, Petitioner, by Notice of Filing, filed a copy of the Transcript of the hearing in the DOAH case between Respondent and the Broward County School Board, DOAH Case No.

02-4759, and a copy of the Transcript of Respondent's deposition testimony in this case. These documents were not stipulated to as admissible evidence in the Parties Joint Motion and Stipulation for the Entry of Findings of Fact and Conclusions of Law. Therefore, the Transcripts have not been considered in entering this Recommended Order.

FINDINGS OF FACT2

1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and

Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006.

2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District.

3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008.

4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose.

5. Respondent had no prior disciplinary concerns.

6. Respondent had received satisfactory evaluations every year.

7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident.

8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003.

9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video.

10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited.

11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT.

12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance.

13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed.

14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration.

15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions.

16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.”

17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT.

18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video.

19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual.

20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known.

21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class.

22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past.

23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days.

24. Respondent has proctored the FCAT every year since the incident, including this year, without problem.

25. The District found that a 30-day suspension plus training was sufficient discipline.

CONCLUSIONS OF LAW3

1. Stipulated Conclusions.

   
   

   26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

   27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden.

   28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam.

   29. Additionally, Florida Administrative Code Rule 6A-

   
   

   10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers.

   30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined.

   31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint.

2. Other Conclusions.

   
   

   32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently,

   or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.

   33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes.

   34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude."

   35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.”

   36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to

   the actual portion of the Principles Respondent violated.

   
   

   Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “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.”

   37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1.

   38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used

   in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992).

   39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" 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.

   
   

   40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality":

   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).

   
   

   Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996).

   41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" 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.

   
   

   42. The court in State ex rel. Tullidge v. Hollingsworth,

   
   

   146 So. 660, 661 (1933), observed that 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.

   
   

   43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, 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, 1171 (Fla. 1st DCA 1981).

   44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society."

   45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT.

   46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3.

3. Recommended Penalty.

47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority:

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 [violated one of the subsections that follow].

48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension.

49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this:

(3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider

the following as aggravating or mitigating factors:

1. The severity of the offense;

2. The danger to the public;

3. The number of repetitions of offenses;

4. The length of time since the violation;

5. The number of times the educator has been previously disciplined by the Commission.

6. The length of time the educator has practiced and the contribution as an educator;

7. The actual damage, physical or otherwise, caused by the violation;

8. The deterrent effect of the penalty imposed;

9. The effect of the penalty upon the educator’s livelihood;

10. Any effort of rehabilitation by the educator;

11. The actual knowledge of the educator pertaining to the violation;

12. Employment status;

13. Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation;

14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

15. Actual negligence of the educator pertaining to any violation;

16. Penalties imposed for related offenses under subsection (2) above;

17. Pecuniary benefit or self-gain inuring to the educator;

18. Degree of physical and mental harm to a student or a child;

19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

20. Any other relevant mitigating or aggravating factors under the circumstances.

50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC.

51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated.

52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact

that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order.

53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board.

54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra.

55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time.

56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local

government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.

RECOMMENDATION

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

RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for

30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate.

DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 4th day of April, 2006.

ENDNOTES

1/ Jim Horne was the Commissioner of Education at the time the Administrative Complaint in this case was entered. The style of this case has been changed to reflect the current Commissioner of Education.

2/ Findings of Fact 1 through 25 are those stipulated to by the parties.

3/ Conclusions of Law 26 through 31 are those stipulated to by the parties.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Mathew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A. The Barrister’s Building

1615 Forum Place, Suite 500 West Palm Beach, Florida 33401

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

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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, General Counsel 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: 05-003220PL

Orders for Case No: 05-003220PL