STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On December 10, 2008, an administrative hearing in this case was held by video teleconference between Tallahassee and Tampa, 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.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 5, 2007, the Commissioner of Education (then Jeanine Blomberg, now

Dr. Eric J. Smith, and hereinafter referred to as Petitioner), alleged that John Caleb Johnson (Respondent) violated various statutes and rules by submitting a portfolio of writing, which was not his own work, to district school officials in relation to compliance with a reading certification requirement. The Respondent disputed the allegations of the complaint and requested a formal hearing. By letter dated October 17, 2008, the Education Practices Commission forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of four witnesses and had Exhibits numbered 1 through 5 admitted into evidence. The Respondent testified on his own behalf.

A Transcript of the hearing was filed on January 6, 2009. Both parties filed Proposed Recommended Orders on January 26, 2009, pursuant to an agreement between the parties to extend the applicable filing deadline.

FINDINGS OF FACT

1. The Respondent holds Florida Educator's Certificate No. 710210, valid through June 30, 2010.

2. At all times material to this case, the Respondent was employed by the Hillsborough County School System as a teacher of English and reading at Marshall Middle School.

3. As part of the federally-mandated "No Child Left Behind" program, the Hillsborough County School System implemented a "Reading Endorsement Program" applicable to reading teachers.

4. The program required that each reading teacher complete a five-part, 300-hour, course of study in order to obtain a "reading endorsement" to his or her educator's certification.

5. Each reading teacher was also required to prepare a "Reading Endorsement Portfolio" of his/her work for review by school district personnel.

6. After completion of the program and receipt of the endorsement, each teacher was eligible to receive a one-time payment of $1,000.

7. In Spring 2006, the Respondent submitted his Reading Endorsement Portfolio to the school district office. Cynthia Alicea, a "Reading Endorsement Facilitator," was assigned to review the Respondent's portfolio.

8. Upon review of the Respondent's portfolio, Ms. Alicea observed that portions of the Respondent's portfolio work contained handwritten comments. Based on the appearance of the

   handwriting, Ms. Alicea believed that the comments were written by Sandra Tune, another Reading Endorsement Facilitator.

9. At the request of Ms. Alicea, Ms. Tune reviewed the Respondent's portfolio and determined that the comments on the Respondent's portfolio were the notes she had written on a portfolio submitted for review by another teacher, Betty Sales.

10. Ms. Sales had already completed the endorsement program. Ms. Tune had been assigned to review and grade Ms. Sales' portfolio.

11. The Respondent and Ms. Sales were "co-teachers," who shared a classroom office.

12. Although Ms. Sales and the Respondent discussed the requirements of the Reading Endorsement Program at various times, there was no evidence that Ms. Sales was involved in the preparation of the Respondent's portfolio or consented for the Respondent to either copy, read or otherwise use her portfolio material.

13. The evidence fails to establish how the Respondent came to possess materials from the Sales portfolio, although Ms. Sales testified that she brought her approved portfolio to

    school at the request of the school principal, who wanted a copy of the work, and that she left it in the shared office while teaching a class. She testified that when she returned from teaching, several pages were "sort of hanging out" of the

    portfolio folder, apparently leading Ms. Sales to conclude that someone handled the materials during her absence.

14. Comparison of the Respondent's portfolio with

    
    

    Ms. Sales' clearly established that the Respondent's portfolio included Ms. Sales' work. Some parts of the Respondent's portfolio were direct copies of Ms. Sales' work. Photographs that the Respondent submitted within his portfolio were identical to those contained in Ms. Sales' portfolio. Other parts of the Respondent's portfolio included essentially the same text as that in Ms. Sales' portfolio, with minimal alteration.

15. At the time of the incident, school district officials offered the Respondent an opportunity to shed light on how material from Ms. Sales' portfolio came to be included within his portfolio, but he had no explanation.

16. At the hearing, the Respondent denied copying Ms. Sales' work. He testified that after he completed his

    portfolio, he directed a student assistant (whose name he could not recall) to make copies of his work. He speculated that the student assistant apparently copied parts of Ms. Sales' portfolio and inserted it into the Respondent's portfolio, whereupon the Respondent turned the material in to the school district office without further review. The Respondent's testimony was not credible.

17. The Respondent also testified that he did not pursue the reading endorsement in order to obtain the $1,000, but because he was told that he had no choice other than to participate in the program. There is no evidence that the Respondent obtained the $1,000 or made any request to receive the payment.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

19. The Administrative Complaint filed by the Petitioner against the Respondent alleged as follows:

    During the Spring 2006 semester, Respondent submitted a portfolio of work that was not his own for the purposes of completing a district reading program that qualified Respondent for a $1,000 incentive payment.

    
    

20. License revocations are penal in nature. The Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987). In order to be "clear and convincing," 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." See Slomowitz v. Walker,

    
    

    429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the burden has been met. The evidence clearly and convincingly established that the Respondent submitted portfolio materials that were directly copied from, or substantially similar to, portfolio materials authored by another teacher.

21. The Administrative Complaint also alleged that "[o]n or about July 5, 2006, Respondent resigned in lieu of termination from his teaching position with the district." Resignation from employment, even in lieu of termination, does not constitute a violation of the referenced statutes or rules, and this allegation has accordingly been disregarded.

22. The Respondent's testimony was that Ms. Sales' materials were photocopied by a student assistant, whose name he could not recall. To credit the Respondent's testimony would require one to believe that after copying the materials, the unidentified student-assistant then correctly assembled the Respondent's portfolio and purposefully inserted parts of

    Ms. Sales' work into the Respondent's portfolio. It would also require one to disregard the portions of text in the Respondent's portfolio that were obviously based on Ms. Sales' text and minimally altered in an attempt to distinguish his work from hers.

23. The Administrative Complaint alleges that the Respondent's submission of the portfolio containing Ms. Sales' work was a violation of Section 1012.795, Florida Statutes (2007), which provides in relevant 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.

       
       

24. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes (2007). 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 (2007). Castor v. Lawless, 1992 WL 880829 (EPC Final Order 1992).

25. "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.

    
    

26. "Gross immorality" has been described as misconduct that is more egregious than mere "immorality." As stated in Brogan v. Mansfield, Case No. 96-0286 (DOAH August 1, 1996) (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).

    
    

27. "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.

    
    

28. Moral turpitude 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).

29. 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, 1171 (Fla. 1st DCA 1981).

30. The Respondent's submission of Ms. Sales' work as his own, given his position as a teacher, constituted gross immorality and moral turpitude because it was dishonest and an act of serious misconduct. Accordingly, the Respondent has violated Subsection 1012.795(1)(c), Florida Statutes (2007).

31. The Respondent has also violated Subsection 1012.795(1)(f), Florida Statutes (2007), because his submission of Ms. Sales' work as his own constituted personal conduct that seriously reduced his effectiveness as an employee of the district school board.

32. Florida Administrative Code Rule 6B-1.006 provides, in relevant part, as follows:

    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.

       
       

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       1. Obligation to the public requires that the individual:

          
          

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

          2. Shall not use institutional privileges for personal gain or advantage.

          
          

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

          
          

          1. Shall maintain honesty in all professional dealings.

       
       

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       1. Shall not misrepresent one’s own professional qualifications.

          
          

       2. Shall not submit fraudulent information on any document in connection with professional activities.

       
       

33. The evidence establishes that the Respondent misrepresented facts concerning an educational matter by submitting Ms. Sales' work as his own and, thereafter, by attempting to transfer responsibility for his actions to an unnamed student, in violation of Florida Administrative Code Rules 6B-1.006(4)(b) and 6B-1.006(5)(a) and (h). Such rule infractions also constitute a violation of Subsection 1012.795(1)(i), Florida Statutes (2007).

34. The evidence fails to establish that the Respondent used institutional privileges for personal gain or advantage. There is no evidence that the Respondent sought to obtain the bonus available to teachers who obtained the reading endorsement or that he otherwise violated Florida Administrative Code

    Rule 6B-1.006(4)(c).

35. There is no evidence that the Respondent misrepresented his professional qualifications in violation of Florida Administrative Code Rule 6B-1.006(5)(g).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the Florida Educator's Certificate held by the Respondent.

DONE AND ENTERED this 26th day of February, 2009, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2009.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

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: 08-005204PL

Orders for Case No: 08-005204PL