Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Adela Popescu holds Florida Educator's Certificate 876674 covering the area of mathematics, which was valid through June 30, 2006. She was employed by the Broward County School District as a math teacher. The Florida Teacher Certification Examination ("FTCE") is a statewide examination. It is given four times a year at multiple locations. The Department of Education contracts with the Institute of Instructional Research and Practice of the University of South Florida to administer the examination, and the Institute contracts with persons to serve as room proctors and to grade the essay part of the general knowledge portion of the examination. The general knowledge portion of the examination is a basic skills test. Respondent applied to take the general knowledge portion of the test on April 16, 2005. That portion required the examinees to write a short essay on a choice of topics. The Department provided to Respondent, along with her admission card allowing her to take the examination, the Department's written guidelines prohibiting cheating on the examination and itemizing some activities considered cheating following the words "including but not limited to." Respondent took the essay portion of the general knowledge examination on April 16, 2005. At the beginning of the examination, the examinees were given written instructions. The instructions specifically provided: "You will have 50 minutes to plan, write, and proofread an ORIGINAL essay on one of the two topics presented below." Two topics were presented and then the following sentence provided: "Read the two topics again and select the one on which you wish to write your ORIGINAL essay." The word "original" was in capital letters in both sentences. In addition to the written instructions, the room supervisor for the test read the following instructions to the group of examinees: You must write an original essay that specifically and directly responds to the topic you select. Pre-prepared essays that are discovered to contain memorized sentences or passages will be marked accordingly. For example, if the essay raters discover passages that appear in two or more essays, the essays will be brought to the attention of the Florida Department of Education. The above-quoted language was read three times in succession in order to emphasize the need to write an original essay. Therefore, the requirement that the essay be original was presented to the examinees two times in writing and three times verbally, for a total of five times. There was no minimum or maximum length to the essay. The topics given required no particular level of knowledge of anything; rather, the topics were akin to asking an elementary school student to write an essay on what the child did during the summer vacation. It is surprising to find such a basic task on an examination given to college graduates, but at hearing the Department presented testimony to the effect that it is only trying to ascertain if the examinee can communicate extemporaneously, i.e., whether he or she is capable of writing a note to a student's parents. The five-paragraph-long essay that Respondent turned in as her original work is virtually identical to an essay the Department has seen so many times that Department staff refer to it as "the lush green hills essay." Admitted in evidence were the essays of three examinees who took the exam prior to Respondent and two examinees who took the exam on the same date. The primary differences in the essays arise from inferior skills in the English language so, for example, one examinee wrote "the lunch green hills," Respondent wrote "the lash green hills," one examinee apparently forgot that the green hills were "lush," and one examinee apparently thought there was only one hill. Otherwise, there are few differences in the essays. Respondent's essay was flagged by the essay readers, referred to the chief reader, and then forwarded to the Department. The Department agreed with the determination that the essay was not "original," that Respondent had cheated on the examination, and that her essay should be declared invalid. The Department so advised Respondent by letter dated May 16, 2005. In addition to advising Respondent that her score on the essay subtest of the general knowledge examination was invalid, the Department also advised Respondent that she had a right to an administrative hearing on that determination. Respondent did request an administrative hearing, and the case was transferred to the Division of Administrative Hearings and assigned Case No. 05-2318. Before the final hearing in that case, Respondent filed a Notice of Voluntary Dismissal of her request for a hearing. There is a dearth of evidence in the record in this cause as to how or when Respondent was issued a Florida Educator's Certificate. However, the parties have stipulated that she was licensed, with her license expiring June 30, 2006. Prior to that date, the Commissioner of Education issued the Amended Administrative Complaint which is the subject of this proceeding. There is no evidence as to how Respondent plagiarized someone else's work: whether she brought it into the examination, whether she memorized it, or whether she obtained it through the use of technology. The method she used to cheat, however, is irrelevant since she represented someone else's work as her own and admits it was not an original essay. Shortly before the final hearing in this cause, the parties filed a number of motions typically designed to resolve a case without the need for a hearing. Petitioner argued that jurisdiction over this matter should be relinquished since by Respondent's admission that she did not turn in an original essay, which constituted cheating, there were no longer genuine issues of material fact. In opposition to that motion, Respondent asserted that Petitioner was relying on two policies which were required to be promulgated as rules but were not, thereby preventing Petitioner from taking disciplinary action against Respondent. Respondent alleges that the two unpromulgated rules upon which Petitioner relies are the definition of cheating, which appeared in the materials allowing Respondent admission to the examination, and the examination instructions, which required that an original essay be submitted and which were provided to Respondent twice in writing and three times verbally. Respondent did not raise these issues in her administrative challenge to the Department of Education's decision to declare her essay to be invalid, which would have been the appropriate proceeding since the question of whether she should be given a score for her essay or whether it should be declared invalid was the subject matter of that proceeding, not this proceeding. The two challenged policies, the definition of cheating and the essay instructions, are not rules and, therefore, need not be promulgated pursuant to Section 120.54, Florida Statutes. Further, neither the definition of cheating nor the essay instruction is vague, and neither vests unbridled discretion in anyone. The words "cheating" and "original" are not statutory terms, requiring interpretation. Further, they are not specialized terms unique to the Commissioner of Education or the Department of Education. They are words of common usage. Copying someone else's work and representing it to be one's own is a willful and intentional act. It is also unethical and dishonest to plagiarize.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of Counts 2, 3, and 5-7, as alleged in the Amended Administrative Complaint filed in this cause and suspending or revoking Respondent's educator's certificate for a period of one year. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 23rd day of August, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building 325 West Gaines Street, Room 1224 Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue Whether Florida Administrative Code Rule 6A-14.0411 (“challenged rule”) is an “invalid exercise of delegated legislative authority” for the reasons alleged in the Amended Petition to Invalidate Rule (“Amended Petition”) filed by Petitioner.
Findings Of Fact The Parties agreed to the following findings of facts in the Prehearing Stipulation: Petitioner, United Faculty of Florida, is structurally a voluntary, unincorporated association. The UFF is the registered employee organization under section 447.305, and is the certified collective bargaining agent under section 447.307, for several bargaining units of public employees employed by the college district boards of trustees regulated by the challenged rule. UFF is legally obligated to represent the members of these bargaining units with respect to the determination of their wages, hours, and terms and conditions of employment pursuant to section 447.309(1). The State Board is the chief implementing and coordinating body of public education in Florida, and is required to focus on high-level policy decisions. The State Board has the authority to adopt rules to implement the provisions of law conferring duties upon it for the improvement of the state system to the extent compliant with the rulemaking authority standards set forth in the Florida Administrative Procedure Act. The Florida College System comprises the Florida College institutions, which are each governed by a local Board of Trustees. Each Board of Trustees is responsible for cost- effective policy decisions appropriate to the Florida College System institution?s mission, and the implementation of high- quality education programs within law and the rules of the State Board. Each Board of Trustees may adopt rules to supplement those prescribed by the State Board, and is specifically authorized to adopt rules and policies related to governance, personnel, conditions of employment, recruitment and selection, standards for performance and conduct, evaluation, promotion, assignment, demotion, and transfer, subject to the rulemaking authority standards set forth in the Florida Administrative Procedure Act. A “continuing contract” is a contract between a Florida college and a member of the college?s faculty which entitles the faculty member to continue in his or her respective full-time faculty position at the college without the necessity for annual nomination or reappointment. A faculty member who does not have a continuing contract has no assurance that he or she will be employed by the college in the next academic year. A continuing contract is similar to tenure, and is viewed by some as a form of tenure. A predecessor of the continuing contract rule has existed since at least 1979. The 1979 edition of the rule was amended in 2004; and the 2004 edition was not changed until April 23, 2013. There were no changes to Florida Statutes enacted since the adoption of the 2004 edition of the rule which mandated an increase from three to five years of satisfactory service for college instructors to qualify for a continuing contract; mandate that colleges develop criteria to measure students? success; mandate the creation of full-time college faculty positions that are not eligible for continuing-contract status; or mention the creation of full-time college faculty positions that are not eligible for continuing contract status. On April 27, 2012, the State Board published a Notice of Development of Rulemaking for the Rule, which scheduled a rule development workshop for June 5, 2012. The Notice stated that, “[t]he purpose of this rule development is to review the current process of issuing contracts to determine necessary changes. The effect will be a rule aligned with Florida Statutes.” On August 17, 2012, the State Board published a second Notice of Development of Rulemaking for the Rule. The second Notice stated, “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The Notice scheduled a rule-development workshop for August 31, 2012, but that workshop was cancelled. On November 13, 2012, the State Board published a third Notice of Development of Rulemaking, which included proposed language to amend the Rule. The third Notice stated: “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The State board held a rule-development workshop on November 29, 2012, at Seminole State College of Florida. On February 21, 2013, the State Board published a Notice of Proposed Rule to amend the Rule. The “Purpose and effect” section of Notice stated: The purpose of the rule development is to revise the current process and criteria for issuing continuing contracts. In addition, criteria for post-award performance reviews are added, and grounds for termination of continuing contracts are revised to include failure to meet the post-award performance criteria. The effect will be a rule aligned with Florida Statutes. The 2004 version of the rule did not have to be changed in 2013 in order to be aligned with any particular statute(s). The State Board held a rule adoption hearing on March 19, 2013, in Tallahassee, Florida. At the March 19, 2013, State Board meeting, the State Board unanimously adopted the proposed amendments to the Rule. The amended version of the rule became effective on April 23, 2013.
Recommendation Based on the foregoing, it is therefore ORDERED THAT: The Petition filed by Petitioner pursuant to section 120.56(3) seeking an administrative determination that Florida Administrative Code Rule 6A-14.0411 is an “invalid exercise of delegated legislative authority,” as defined in section 120.52(8) is hereby DISMISSED. DONE AND ORDERED this 23rd day of December, 2013, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 23rd day of December, 2013.
The Issue Whether Petitioner is entitled to credit for his answers to questions 42 and 81 of the morning session of the Fundamentals of Engineering Examination portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Worku took the Fundamentals of Engineering Examination portion of the examination for licensure to practice as an engineer intern on April 15, 2000. The examination is a national multiple-choice examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). The examination is divided into a morning session and an afternoon session. The questions in the morning session are worth one raw point each. The questions in the afternoon session are worth two raw points each. Worku challenged questions 42 and 81, which were on the morning session of the examination. Worku received 56 raw points for the morning session and 52 raw points for the afternoon session for a total raw score of 108 on the examination. Based on the NCEES' Score Conversion Table, a raw score of 108 converts to a score of 69. A converted score of 70, which equates to a raw score of 109-113, is a passing score. Question 81 asked the examinee to identify the geometric shape that was given by an equation provided in the question. Each examinee was given a reference manual during the examination. The manual contains general formulas for the types of geometric shapes listed as possible answers to question 81. The equation given in question 81 was for a specific shape and was not listed among the general formulas in the reference manual. Worku felt that because the general equation was not used that the equation was stated incorrectly. However, the equation was stated correctly. The equation differed from the equation listed in the reference manual because it was for a special shape of the geometric figure. Worku did not answer question 81 correctly. Question 42 dealt with recrystallization as it relates to metal. The question asks the examinee to pick the answer which explains the reference to the term "recrystallization" in the question. Worku contends that there are two correct answers to question 42 and that the answer which he provided is one of the correct answers. The answer which Worku provided is not a correct answer. It refers to the process of annealing, which is the process of decreasing the toughness of a metal. Recrystallization can be a part, but is not always part of annealing. Recrystallization and annealing are not synonymous terms; thus Worku is not entitled to credit for question 42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Amanuel Worku failed the Engineering Fundamentals Examination with a score of 69. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ Susan B. Kirkland 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 5th day of January, 2001. COPIES FURNISHED: Amanuel Worku 18492 Northwest 52nd Path Miami, Florida 33055 Douglas Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Gary L. Wheeler, Respondent, is a graduate of Bob Jones University, having received a Bachelor of Science degree therefrom in accounting in 1974. On July 27, 1979, Respondent received his California certificate as a certified public accountant. Thereafter, Respondent filed an application to obtain a reciprocal C.P.A. certificate in Florida based on his certificate issued by the State of California (Certificate No. E-28234). His application was denied by the Petitioner on October 26, 1979, for the following reason: Applicant failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, inasmuch as the license issued to Gary L. Wheeler in California is not issued under criteria substantially equivalent to that in effect in Florida at the time the California license was issued. Bob Jones University was not recognized as an accredited university in Florida by the Board when Respondent received his California certificate inasmuch as it was not listed among the institutions of postsecondary education by the Council on Postsecondary Accreditation (COPA). During September, 1976, Petitioner adopted the COPA list of schools as the schools from which it would accept graduates to sit for its examination. This was done for the avowed purpose of ensuring minimum competence and technical fitness among the ranks of Florida accountants. Douglas H. Thompson, Jr., the Petitioner's Executive Director since 1968, is the Board's chief operating officer and carries out its functions respecting applications for licensure. As such, Mr. Thompson was the person charged with examining Respondent's application pursuant to his California certificate to determine whether the Respondent's certificate was issued under criteria "substantially equivalent" to Florida's licensing criteria. Respondent's application was considered by the Board on two (2) occasions and rejected because Respondent's alma mater, Bob Jones University, is not listed among the accredited schools and universities by COPA. See Sections 473.306; 473.307 and 473.308, Florida Statutes, as amended; and Chapter 21A-28.06, Florida Administrative Code. As an aside, it was noted that the Board, in adopting its procedure for evaluating the criteria for applicants who were seeking to obtain certificates based on the reciprocal qualifications guidelines also adopted other equivalency procedures which provide Respondent an alternative method for which he may obtain a Florida certificate. In this regard, Respondent is only approximately six (6) quarter hours away from obtaining his certificate under the alternative equivalency procedures established by the Board. See Chapters 21A-9.01 through 9.04(4), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's appeal of the Board's action in denying his application for a reciprocal license to practice public accounting based on the issuance of his California certificate be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of March, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue Is Petitioner eligible, pursuant to Section 455.11, Florida Statutes (1981), to take the accountancy examination in Spanish? FINDINGS OF FACT 1/ Petitioner, Victoria Wedemayer, applied to the Board of Accountancy for permission to take the accountancy licensure examination in the Spanish language. By a "Final" Order entered October 1, 1982, the Florida Board of Accountancy denied her request because she failed to: . . . complete the special one-year continuing education program as specified in Chapter 455.015(1)(a), Florida Statutes, in effect when foreign licensure examination was instituted. On October 12, 1982, Petitioner requested a hearing, pursuant to Section 120.57, Florida Statutes, to "review" the Board's decision. Petitioner is fully qualified to take the Florida accountancy examination in English. Petitioner, as a licensed accountant in Cuba prior to July 1, 1974, met all of the requirements for entry into a special continuing education program for foreign language applicants, established pursuant to Chapter 74-105, Laws of Florida (1974); but Petitioner never applied for the foreign licensure program when it was available. Petitioner graduated from Biscayne College in Dade County, Florida, with a Bachelor's Degree in accounting. Her course of instruction there is more comprehensive than the special continuing education program offered by the Board of Accountancy and Department of Education, pursuant to Chapter 74-105, Laws of Florida (1974).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida State Board of Accountancy enter a Final Order denying Petitioner's request to take the accountancy written examination in Spanish. DONE and ENTERED this 8th day of April, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1983.
The Issue Whether Respondent, Department of Education, should have invalidated Petitioner's, Lori Monroe, Florida Teacher Certification Examination, for her alleged violation of a test- taking protocol.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is seeking to be certified as a teacher. She submitted appropriate application and sat for the March 4, 2006, Florida Teacher Certification Examination. Respondent is the state agency responsible for certifying teachers in the State of Florida and conducts the Florida Teacher Certification Examinations. The Florida Teacher Certification Examinations are given four times per year in various locations around the state. Because of the frequency and volume of Florida Teacher Certification Examinations, the application process and information regarding testing procedures are refined. The preliminary information provided examinees includes a statement of understanding, written in the first person, which makes specific reference to the fact that the examinee "must follow the instructions of the test administration personnel," and, "If I do anything prohibited by this paragraph, my examination results will be voided." In addition, examinees are provided an information sheet identifying "cheating behaviors." Included in the list of "cheating behaviors" is the following: "During the examination administration, continuing to work on the examination after the testing time had elapsed, and the directive to stop working has been given by a room proctor or supervisor." Included in the referenced refinements in testing procedures are instructions contained in a Test Administration Manual provided to test room supervisors and proctors that ensure the appropriate administration of the tests. The Test Administration Manual specifically delineates the procedure to be followed upon observation by a room supervisor or proctor when "an examinee continues to work on the test when time is called." In the instant case, the room supervisor and proctor, both of whom were experienced test administrators, followed the appropriate procedures. Both the room supervisor and proctor were within several feet of Petitioner who was sitting in the front-row seat of the classroom. Not only was Petitioner within easy view, but, certainly close enough to clearly hear the general instructions to stop. They observed Petitioner continue to enter answers on her answer sheet after examinees had been told to stop two times. It is unfortunate that the particular conduct of the Petitioner is characterized as "cheating," as the evidence, including the observations of the room supervisor and proctor, portrays Petitioner as being so focused on the examination that she did not hear the instruction to stop and, unfortunately, continued to answer questions after the test had concluded. Respondent advised Petitioner by letter dated March 20, 2006, that she had been assigned a score of "invalid" and that she had not fulfilled the requirement for a passing score on the Elementary Education K-6 examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order concluding that an irregularity had occurred and that "invalid" was the appropriate test score for the subject test. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 19th day of July, 2006. COPIES FURNISHED: Matthew J. Carson, Esquire Department of Education Division of Vocational Rehabilitation 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0440 Charlie S. Martin, Esquire McLeod, McLeod & McLeod, P.A. 48 East Main Street Post Office Drawer 950 Apopka, Florida 32704-0950 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent (a) pushed a ten-year-old student against a wall and struck his arm with a closed fist; and/or (b) falsely answered a question on the application for renewal of her educator certificate, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's educator certificate.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules. Respondent holds Professional Educators Certificate 730057 (certificate). Valid through June 30, 2018, the certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Cooperative Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (ESE). At all times material to this proceeding, Respondent was employed as an ESE teacher at WHGES in the Miami-Dade County School District (District). Respondent has been employed by the District in a variety of capacities for a total of 25 years and in a teaching capacity for the last 17 years. The charges against Respondent arise from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. On that date, E.A. returned to Respondent's classroom after an in-school appointment with his therapist. Rather than entering the classroom, E.A. stood outside the closed door and knocked on the door intermittently for approximately five to ten minutes. Several students in the classroom went to the door to tell E.A. that the door was unlocked and to come in. When E.A. continued to knock on the door and disrupt the classroom, Respondent went to the door. Respondent was able to open the door part of the way and get her hand and part of her body in between the door and the door frame when E.A. pushed the door closed on Respondent and held it shut with his foot. Respondent shouted at E.A. to open the door and said repeatedly, "it's the teacher, open the door!" When E.A. removed his foot from the door, the door swung out towards the wall, trapping E.A. in a corner between the open door and the wall. Respondent yelled at E.A. to get into the classroom and struck him on the upper arm at least two times. Respondent also picked up E.A.'s backpack and threw it in the classroom. According to Respondent, she made physical contact with E.A. when he raised his arm and she believed he was about to hit her. Respondent claims she used a "defensive move" to prevent E.A. from striking her. Respondent's testimony is inconsistent with that of E.A. and several students who witnessed the event, and deemed not credible by the undersigned. According to E.A., Respondent definitely meant to hit him although he was not hurt physically by the contact. E.A. entered the classroom crying because he was very embarrassed that this occurred in front of his fellow classmates. This altercation was witnessed by another teacher who reported it immediately to administration. Assistant Principal Mary Pineiro (Pineiro) was sent to the classroom to determine what happened. Pineiro observed E.A. crying and holding his arm. Pineiro heard another student say, "I cannot believe you did that to my friend," to Respondent. Respondent refused to answer Pineiro's questions regarding the incident. The teacher and other students who witnessed the event were sent to the office and asked to provide written statements of what they observed. The statements were provided independently and students were separated when they wrote their statements. They were not told what to write and their statements were not edited. The statements corroborated E.A.'s version of events that he was playing around outside the door when Respondent came out and struck him on the arm several times. On February 15, 2012, Respondent was suspended without pay from her teaching position for 25 days which was later upheld after a formal hearing (DOAH Case No. 12-0808TTS). By certified letter dated March 14, 2012, Petitioner informed Respondent that PPS opened a case to investigate her use of inappropriate discipline.2/ On August 9, 2012, another certified letter was sent from Petitioner to Respondent advising that Petitioner had "concluded its preliminary investigation" and wanted to provide Respondent an opportunity to review the materials and respond to the allegations. The letter states that Respondent is not required to respond and that an informal conference was scheduled for August 29, 2012. Respondent wrote back to Katrina Hinson (Hinson) with PPS on August 31, 2012, thanking PPS for "putting me on this pedestal of honor" and giving her the opportunity to refute the allegations of misconduct. Respondent asserts in this letter that she is the victim of a "mafia-type, posse ring" and the victim of a conspiracy including Pineiro and others at WHGES. Rather than respond to the allegations of misconduct, Respondent's three-page letter appears to be a plea for help from Respondent to protect her teaching position from the "obsessive hate" of the alleged conspirators. Petitioner sent a memo to Respondent on August 30, 2012, enclosing a copy of the materials assembled during the preliminary investigation conducted by PPS. The purpose of this memo appears to be to notify Respondent to keep the materials confidential during the proceedings. This memo and the materials were received by Respondent on September 8, 2012. On September 17, 2012, Respondent wrote another letter to Hinson at PPS in which she states, "to be in compliance with your office's investigation, I am writing for professional guidance in regard to curtailing the constant bare-faced humiliation and bait-and-switch torture by Dade County Public School's [sic] employees, as my soul is longing for peace to have solace to grieve my loss in every respect of life fulfillment." Respondent asks whether PPS is part of the DOAH process, complains about the union attorney and the school board attorney and asserts that the "mafia-type posse wants me to be on an accelerated program for homelessness and malnutrition." This letter, and its reference to an "investigation," is not a response to allegations of misconduct but rather appears to be Respondent's attempt to seek help from PPS with regard to the DOAH proceeding. The final hearing in the DOAH proceeding regarding Respondent's suspension without pay occurred before Administrative Law Judge Stuart M. Lerner on September 24, 2012. On October 1, 2012, Respondent wrote another letter to Hinson which states in the opening paragraph: To be in compliance with your office's investigation, I am writing for professional guidance in regard to my mental faculty due to my mild malnourished and homeless states, as I am constantly being deprived of rightful income due to a group of vicious, hateful, and jealous so-called professional educators and so-called professional administrators of Dade County public schools. This letter states, "I am being sanctioned (mentally slaved [sic]) that if I return to employment of Dade County Public Schools. I cannot communicate further with your office, neither through writing or telephone." In this letter, Respondent asserts that E.A. and the student witnesses were "coached to give false witness against me." Regarding the incident with E.A., Respondent states, "the student kidnapped me between the door and the door jamb, and battered me with the door to my head and upper torso, that left me with a mild head trauma." A similar letter was written by Respondent to Hinson on October 5, 2012. Respondent does not mention any "investigation" but again asks for help from Hinson stating: May you please go another extra mile to help me? I beg of you. My grasp to hope is weakening as my resilience to these evil ones has been for many, many years. They have cornered me by attacking my every phase of bottom line. Please, do not allow evil to have dominion over good. A final letter by Respondent to Hinson was written on October 19, 2012, in which Respondent complains that she is being unfairly harassed by the principal at her new assigned school, Aventura Waterway K-8 Center. Notably, Hinson did not reply to any of the correspondence from Respondent. According to Hinson, PPS has no authority to address concerns or complaints about harassment or discrimination. This information was not communicated by PPS to Respondent. What is clear from these letters is that Respondent had no understanding that she was under investigation by DOE. Rather, Respondent erroneously believed that PPS would intervene on her behalf with regard to her then-pending matter before DOAH or with her assigned schools. The final order upholding Respondent's suspension without pay was issued by the District on February 13, 2013. Respondent alleges that, at that time, she was advised by her union representative that the matter was concluded and that she did not have to worry about this incident any further. On March 18, 2013, Respondent filed her annual application for renewal of her educator's professional certificate with the District. In response to the question, "Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for professional license or certificate?" Respondent answered "No." Respondent certified by her application signature that all information provided in the application was "true, accurate and complete." When the District received and reviewed the application, a computerized alert was received from Petitioner indicating that an investigation was pending with PPS. Jose Garcia, Certification Officer for the District, notified Respondent by memorandum dated April 17, 2013, that Respondent needed to return a corrected application. Respondent did not believe she was under investigation and thought that by indicating "yes" on the form, she would be incriminating herself. Respondent wrote Governor Scott an email on May 17, 2013, alleging that PPS and the District Certification Office were wrongfully preventing the renewal of her application in an attempt to prevent her from working with children with disabilities. As a result of this email, the alert was removed from Respondent's certificate and it was reissued by the District. Respondent never acknowledged the DOE investigation in her application for renewal. Petitioner considers Respondent's refusal to acknowledge the pending PPS investigation as an attempt to renew her certificate by fraudulent means. The Administrative Complaint charges Respondent as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(a), Florida Statutes, in that Respondent obtained or attempted to obtain a teaching certificate by fraudulent means. COUNT 2: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 3: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 4: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. COUNT 6: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings. Respondent filed a Motion for a Formal Hearing on December 26, 2013, with the EPC in which she disputed all of the allegations of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the incident with E.A., with a copy to be placed in Respondent's certification file, and placing Respondent on probation for a period of 90 school days. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 22nd day of January, 2015.
