STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

KIMBERLY BANKS,

Respondent.

/

Case No. 15-6022PL

RECOMMENDED ORDER

The final hearing in this case was held on January 28, 29, and March 14, 2016, by video teleconferencing, with sites in Orlando and Tallahassee, before Administrative Law Judge J. Lawrence Johnston.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088 Ocala, Florida 34477-0088

For Respondent: Brian F. Moes, Esquire

Law Office of Brian F. Moes

231 East Colonial Drive Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether and how the Education Practices Commission (EPC) should discipline the Respondent on charges that she submitted another teacher’s work to earn an

endorsement to her teacher certificate for English for Speakers of Other Languages (ESOL).

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint alleging that the Respondent either submitted another teacher’s work to earn an ESOL endorsement to her teacher certificate, or allowed the other teacher to submit the Respondent’s work for the other teacher to earn an ESOL endorsement. Count 1 charged a violation of section 1012.795(1)(g), Florida Statutes (2013),1/ for personal conduct that seriously reduced her effectiveness as an employee of the district school board. Count 2 charged a violation of section 1012.795(1)(j) for violating Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules, which are specified in Counts 3 and 4. Count 3 charged a violation of Florida Administrative Code Rule 6A-10.081(4)(b)2/ for intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression. Count 4 charged a violation of rule 6A-10.081(5)(a) for failure to maintain honesty in all professional dealings. The Respondent denied the charges and asked for a hearing under section 120.57(1), Florida Statutes (2015).

At the hearing, pertinent decisional law, statutes, rules, a school calendar, and EPC records of discipline imposed in

similar cases were officially recognized. The Petitioner called the Respondent and five others to testify, namely: Andrea Bayes, a CaseNEX online course facilitator; Leigh Ann Bradshaw, principal of Oakridge High School; Scott Hanson, assistant principal of Conway Middle School; Indez Cordero, Orange County Public Schools (OCPS) director of Multilingual Services and ESOL endorsement coordinator; and Charnetta Starr, a teacher at Oakridge. The Petitioner’s Exhibits 1 through 32, 35, 48, 50 through 55, 60, and 61 were received in evidence. The Respondent called: Iritza Fabian-Gonzalez, OCPS ESOL compliance officer and CaseNEX facilitator; Justin Golden, an expert on cell phone text messaging; and Kimberly Jackson, an assistant principal and the Respondent’s assessment administrator at Conway Middle School. The Respondent’s Exhibits 1, 42, 48, 177 through 200, and 215 were received in evidence.

The first three volumes of the Transcript of the final hearing were filed on March 14, 2016. The fourth volume was filed on April 19, 2016. The parties’ proposed recommended orders were filed on May 19, 2016, and have been considered in the preparation of this Recommended Order.

On May 25, 2016, the Petitioner filed an EPC Final Order entered in the case of Commissioner of Education v. Shawn Luxton, EPC case 15-0503-RT. On May 26, the Respondent moved to

strike it as late and as irrelevant absent findings of fact and

a transcript to provide context and information on aggravating and mitigating circumstances. The findings of fact can be determined by reference to the Administrative Complaint in the docket in DOAH case 15-5644PL, but the motion to strike is granted on the other grounds.

FINDINGS OF FACT

1. The Respondent, Kimberly Bank, holds Florida educator certificate 993098, which expires on June 30, 2018. She is certified in English and reading. During the 2012-2013 school year, she was employed by the OCPS as a reading teacher at Oakridge High School.

2. In January 2013, the Respondent and a fellow Oakridge reading teacher named Charnetta Starr enrolled in an online course through CaseNEX to earn credit towards an ESOL endorsement to their teaching credentials. ESOL endorsements were required for their jobs.

3. Ms. Starr completed all required course work, including participation in online discussions, journal entries, and workbook submissions, and earned credit for the course.

4. The Respondent began the CaseNEX class, but stopped participating after a few weeks and was told by the course facilitator that she was being withdrawn from the class.

5. The course ended on April 24, 2013. On May 2, 2013, the Respondent emailed Ms. Starr to ask her to provide the

   
   

   Respondent with Ms. Starr’s course work, which Ms. Starr emailed to her.

6. The Respondent enrolled to take the CaseNEX class again during the summer of 2013. She copied Ms. Starr’s journal entries and workbook submissions from the January course and submitted them verbatim as her own work for course credit during the summer course. The submissions struck the course facilitator as being very familiar, and her investigation revealed that they were exact copies of Ms. Starr’s submissions. The facilitator reported this to her supervisor. The Respondent was again withdrawn from the class, this time for violating course prohibitions against plagiarism. The Respondent and

   Ms. Starr were reported to OCPS, which reprimanded them and suspended them for three days.

7. The Petitioner initiated separate, but virtually identical administrative cases to discipline the educator certificates of both the Respondent and Ms. Starr.

8. The Petitioner agreed to settle Ms. Starr’s case for a reprimand and $750 fine, and the EPC accepted the settlement, because Ms. Starr was not perceived to have used the Respondent’s work product, but only to have allowed her work product to be used by the Respondent.

9. Ms. Starr testified that she agreed to the settlement but actually does not believe her actions were wrong or

   
   

   violations because she did not know the Respondent was going to plagiarize her work and submit it for credit.

10. Because the Respondent was perceived to have used

    
    

    Ms. Starr’s work product and submitted it as her own for CaseNEX course credit, the Respondent’s administrative case proceeded, with the Petitioner seeking to fine her, suspend her educator certificate, and place her on probation.

11. The Respondent contends that she and Ms. Starr collaborated on all of Ms. Starr’s journal entry and workbook submissions with the intention that each would submit the identical work as their own. Initially, the Respondent contended that this was permissible “collaboration” under the CaseNEX honor code and course requirements. Later in the hearing, the Respondent seemed to concede that it was against the honor code and the course’s requirement that each teacher taking the course had to submit his or her own original work. At that point in the proceeding, she seemed to be taking the position that her conduct mirrored Ms. Starr’s and that her discipline should be the same (i.e., that she should not be suspended). In her proposed recommended order, the Respondent again took the position that her conduct was permissible collaboration under the CaseNEX honor code and the course’s requirements and that no discipline should be imposed.

    
    

12. The evidence was clear and convincing that the work submitted by the Respondent for credit in the summer 2013 CaseNEX course was not the product of collaboration between her and Ms. Starr. The Respondent testified that she and Ms. Starr collaborated by jointly doing work for the course from the very beginning of the January 2013 course with the intention of each submitting their joint work product for credit. Yet, it is obvious that the Respondent’s work submissions prior to her withdrawal from the January 2013 course were not the same as Ms. Starr’s.

13. The Respondent testified that she collaborated with Ms. Starr throughout the January 2013 CaseNEX course. She testified that they produced joint work for them both to submit for credit in the course. She testified that after she was withdrawn from the January course, she continued to collaborate and produce joint work product with Ms. Starr, and that it was understood that the Respondent would submit the work as her own when she retook the course. The Respondent testified that she misplaced and lost her thumb-drive with a digital copy of the joint work product and asked Ms. Starr to send her a copy as an attachment to an email, which Ms. Starr did on May 2, 2013.

14. Ms. Starr testified that the Respondent emailed her to ask for a copy of Ms. Starr’s work product from the January CaseNEX course and that Ms. Starr complied on May 2, 2013.

    
    

    Ms. Starr testified that this was her own personal work product, not joint work product. She denied knowing that the Respondent intended to plagiarize and submit it as her own. She testified persuasively that there were other legitimate uses the Respondent could have made of the work besides plagiarizing it.

15. Where there is conflict between the Respondent’s testimony and Ms. Starr’s testimony, the Respondent’s is rejected as being false, and Ms. Starr’s is credited as being the truth. The evidence was clear and convincing that Ms. Starr did her own work throughout the January 2013 course. None of the work submitted by Ms. Starr for credit in the January 2013 course was produced jointly with the Respondent. If the Respondent were telling the truth, and she and Ms. Starr collaborated on their work submissions, her early submissions for the January CaseNEX course would have been identical to

    Ms. Starr’s. They were not. On the other hand, some of her submissions during the course she took during the summer of 2013 were identical to Ms. Starr’s submissions. For this and other reasons, Ms. Starr’s testimony was more credible than the Respondent’s when their testimony was in conflict.

16. The Respondent attempted to attack Ms. Starr’s credibility by use of a screen shot of an incomplete and out-of- context cell phone text message exchange between them on

    June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the

    
    

    Respondent: “OK. Did you sign up for the online modules for the

    
    

    $1000? Let’s start working on them so we can get paid on 7/31.” The Respondent answered: “Girl I have started. The kids do 2 hrs in the computer lab and I do the modules. They are easy but looooooong!” Ms. Starr replied: “OK. Send me any info you have for it please.” The Respondent texted: “You just watch a video and answer 2 multiple choice questions. Skip through the video and go to the questions. You can try as much as you want. There”. There was no evidence as to what preceded or followed the exchange.

17. When Ms. Starr was confronted with the text exchange on cross-examination, she understood that it was being presented to impeach her testimony that the Respondent contacted her about providing the Respondent with their supposedly joint work product from the January CaseNEX course. In her haste to vehemently defend herself, Ms. Starr failed to realize that the text message exchange actually had nothing to do with her providing the Respondent with her work product from the January course, but was about a different course they were taking to earn bonus pay, and she testified incorrectly that it was the Respondent who initiated the text message exchange that was in evidence. The cross-examination failed to impeach the essence of Ms. Starr’s testimony.

    
    

18. The evidence was that the Respondent is a good teacher. She performed satisfactorily both at Oakridge before the CaseNEX cheating incident and at Conway Middle School after it. Nonetheless, it is clear that her effectiveness as an employee of the school district was seriously impaired by her plagiarism and cheating on the June 2013 CaseNEX course. For one thing, she was reprimanded and suspended for three days. For another, she did not get the ESOL endorsement that was required for the job she held at Oakridge.

19. Since the Respondent was guilty of plagiarism, and Ms. Starr was less culpable, it is reasonable for the Respondent’s discipline to be harsher than Ms. Starr’s. A

    period of suspension is reasonable. Based on the EPC records of discipline imposed in similar cases that were officially recognized in this case, it appears that it has been the practice of the EPC to impose a one-year suspension, in addition to a fine, probation, and a requirement to take a college-level course in ethics, for a teacher who admits to plagiarism and cheating in a CaseNEX ESOL endorsement course. In the Respondent’s case, a longer period of suspension is warranted due to the Respondent’s dispute of the charges and her false testimony.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Education Practices Commission certifies and disciplines teachers in Florida. Disciplinary proceedings are considered to be penal in nature.

21. Count 1 of the Administrative Complaint charged a violation of section 1012.795(1)(g), Florida Statutes, for personal conduct that seriously reduced her effectiveness as an employee of the district school board. Count 2 charged a violation of section 1012.795(1)(j) for violating Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules, which are specified in Counts 3 and 4. Count 3 charged a violation of Florida Administrative Code Rule 6A-10.081(4)(b) for intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression. Count 4 charged a violation of rule 6A-10.081(5)(a) for failure to maintain honesty in all professional dealings.

22. In a penal proceeding like this one, the Petitioner must prove the charges against the Respondent by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.

    2d 292 (Fla. 1987). As the Supreme Court of Florida stated, quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983):

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

    
    

23. The Petitioner proved by clear and convincing evidence that the Respondent plagiarized Ms. Starr’s work and cheated by submitting it as her own for credit in the June 2013 CaseNEX course. This violated rules 6A-10.081(4)(b) and 6A- 10.081(5)(a), which resulted in violations of section 1012.795(1)(j). It also constituted personal conduct that seriously reduced the Respondent’s effectiveness as an employee of the school district, in violation of section 1012.795(1)(g).

24. Florida Administrative Code Rule 6B-11.007(1) and (2) sets out the penalty guidelines for statutory and rule violations. Each penalty specified in the guidelines also includes "probation," "Recovery Network Program," "letter of reprimand," "restrict scope of practice," "fine," and "administrative fees and/or costs" with applicable terms thereof as additional penalty provisions. The most appropriate range of discipline for the Respondent’s conduct is set out in rule 6B-

    
    

    11.007(2)(i)17: suspension to revocation for “plagiarism or other fraud or dishonesty in professional activities.”

25. Revocation is too harsh in this case. The Petitioner contends that a two-year suspension and $750 fine, plus probation, is the appropriate discipline. That is more than the one-year suspension and $750 fine that seems to be the usual discipline imposed by the EPC in similar cases when the teacher does not dispute the violation. More than a one-year suspension is warranted in this case because the Respondent disputed the charges and testified falsely in support of her position that she did not plagiarize and cheat, but rather permissibly collaborated with Ms. Starr.

26. Rule 6B-11.007(3) authorizes the EPC to deviate from the routine range of penalties upon consideration of aggravating and mitigating factors listed (a) through (t). Consideration of those factors does not warrant a deviation from the routine range of discipline for the proven violations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order finding the Respondent guilty as charged, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the EPC, requiring her to take a college-level course in ethics under terms and

conditions determined by the EPC, and imposing a fine in the amount of $750.

DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 8th day of June, 2016.

ENDNOTES

1/ Unless otherwise noted, all statutory references are to the 2013 codification of the Florida Statutes, which were the statutes in effect at the time of the alleged violations.

2/ All rule citations are to the version of the Florida Administrative Code in effect at the time of the alleged violations.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 (eServed)

Ron Weaver, Esquire Post Office Box 770088

Ocala, Florida 34477-0088 (eServed)

Brian F. Moes, Esquire

Law Office of Brian F. Moes

231 East Colonial Drive Orlando, Florida 32801 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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 (eServed)

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: 15-006022PL

Orders for Case No: 15-006022PL