Findings Of Fact Thomas Pelley, the Respondent, holds Florida Teaching Certificate No. 318598, Standard, Rank III, valid through June 30, 1982, covering the area of furniture repair. The Respondent was employed during the 1978-79 school year in the public schools of Orange County at the Westside Adult Center in Winter Garden, Florida, as an instructor in furniture upholstery. The then Florida Professional Practices Council received a report from officials of the Orange County School System indicating that the Respondent had allegedly misappropriated school funds to his personal use. Pursuant to Rule 6A-4.37, Florida Administrative Code, an inquiry was conducted into the matter and a report made to the Professional Practices Council which culminated in the Commissioner of Education finding probable cause to file a proceeding against the Respondent, which probable cause finding was entered on November 5, 1979. The Respondent and his students typically engaged in the repair and re- upholstery of furniture brought in by members of the public at a reduced price as part of the training program in the occupation of re-upholstery. The procedure for payment for this re-upholstery work was that the customers wrote a check after Mr. Pelley wrote a "training order" and then Mr. Pelley was to submit the customer's money to the school bookkeeper in order to requisition material for the re-upholstery work involved. At the conclusion of the job the customer would come to the school office and pay for whatever charges were left for the labor and take custody of the furniture. Mr. Pelley did not comply with that procedure, however, with regard to customers Vicki Teal, Carol Johnson, and Winifred Good. In these instances involving work done for these customers, the Respondent was paid by the customers directly. The Respondent was fully informed of the proper procedure for payment by the customers for upholstery work. Customer Vicki Teal complained on one occasion that a sofa she had left to be re-upholstered had the wrong material installed on it and that Mr. Pelley had refused to replace the materials with those that she had actually ordered. Ms. Good and Ms. Johnson similarly complained about the workmanship on the furniture they had left to be repaired. With all three of these customers, the office personnel at the school discovered that they had no record that the customers had ever ordered work to be done by the Respondent and his students, nor that they had purchased anything, until they came forward with their cancel led checks for the same. Each of the checks was endorsed by Mr. Pelley. The subject checks from these three customers totaled $515.29, the funds represented which were received by the Respondent and never turned over to officials of the school, the bookkeeper of the school nor anyone employed by the Orange County School Board for proper accounting and use. Rather, the Respondent converted all of the monies collected to his own personal use. Witness House, who worked with the Respondent at the same school and who was his superior, has had long experience in the education profession and in teaching and dealing with students. He established that such conduct is not a proper example to students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, especially in view of the several members of the public directly involved and victimized by the Respondent's misdeeds. It should be pointed out that at the times pertinent hereto, the Respondent was in severe financial straits due to medical expenses incurred by his wife being stricken with cancer.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and pleadings and arguments of counsel for the Petitioner, it is, therefore, RECOMMENDED: That Respondent be found guilty of wrongfully converting monies to his own use that rightfully belonged to the Orange County School Board, which conduct constitutes gross immorality or an act involving moral turpitude and seriously reduces the Respondent's effectiveness as an employee of the School Board; and that the Respondent's Teaching Certificate be revoked for one (1) year. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, 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 th Division of Administrative Hearing this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Mr. Thomas Pelley 149 Silver Star Road Ocoee, Florida 32761 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education 125 Knott Building 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 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.
The Issue Whether Respondent submitted work that demonstrated a high degree of overlap between his submission and that of another candidate when applying for National Board Certification, and what disciplinary action, if any, should be taken against his educator certificate.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Reveron holds Florida educator certificate 442908, which covers the areas of Elementary Education and English for Speakers of Other Languages (ESOL). The certificate is valid through June 30, 2013. Reveron has been employed as a teacher at Dania Elementary School in Broward County, Florida, since 2003. Catherine Wires (Wires) was a colleague of Reveron’s at Dania Elementary. During all times material to the instant case, Wires and Reveron taught fourth grade, and were involved in an on-again, off-again intimate relationship. During the 2007-2008 school year, Reveron and Wires decided to apply for National Board Certification through the National Board for Professional Teaching Standards (NBPTS). To qualify for such certification, candidates must submit four portfolio entries. In preparing their respective submissions, Reveron and Ms. Wires helped each other, and taught essentially the same curriculum. According to the instructions given by the National Board, the entire portfolio had to consist of the candidate’s own work. Collaboration with a colleague was permitted, but the actual written work submitted was to be authored solely by the candidate submitting the portfolio. The portfolios were due to the National Board on a Saturday in March 2008. The day before, Reveron was working in the after-school care program. In an effort to save time, he gave his flash drive, which contained his four entries, to Ms. Wires and asked Ms. Wires to print out all of his documents. He was hoping she could print all four entries, so that when he finished his work at 6:30 p.m., he could simply place them in his portfolio and mail the package. Ms. Wires did as Reveron asked, and printed Reveron’s four entries, which she found on his flash drive. That same afternoon, Ms. Wires printed her submissions for the certification. She used the same computer when printing her documents and Reveron’s documents. After he finished working, he collected the four entries that had been printed by Ms. Wires, placed them in the portfolio without checking them, and mailed them to the National Board. The National Board, in March 2009, notified Reveron that his scores would not be released because the Board identified a high degree of overlap between Reveron’s submission and that of another candidate. Reveron was notified that he would not be permitted to seek certification in the future, but that he could request a review of the decision. Reveron never requested such a review. At issue in this case is Reveron’s submission #3, which consisted of fourteen pages. There is no dispute that the entry was almost identical to Ms. Wires’ entry #3, and had been written by Ms. Wires. There were a few areas where Reveron and Wires’ submissions varied, namely, the candidate identification numbers, the classroom demographic information, and the description of a group of students in terms of their gender, seating, and clothing. The only explanation provided for the overlap in the submissions was that it was a printing and packaging error. Ms. Wires, while in the process of printing her submissions and Reveron’s submissions off of the same computer, inadvertently printed the wrong document when she believed she was printing Reveron’s entry #3. Instead of Reveron’s entry #3, Ms. Wires printed her own entry #3. Reveron never reviewed the contents of the portfolio prior to mailing the package to the Board. Thus, there was a printing and packaging error that caused the “high degree of overlap” between Reveron and Wires’ entries. At hearing, no explanation was provided as to why differences existed between Reveron and Ms. Wires’ entries. In her deposition, however, Ms. Wires explained that she was in a rush to gather all the documents needed for the portfolios that afternoon, and that she must have accidently printed one of the rough drafts of her entry #3 when she thought she was printing Reveron’s entry #3. Absent from the record is any evidence of Reveron acting dishonestly or knowingly submitting fraudulent information to the National Board. Based on the evidence in the record, the overlap in the entries appears to be a result of a careless mistake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Department of Education dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 22nd day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA ENCISO VARN 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 November, 2011.
The Issue Whether the Respondent's teaching certificate should be disciplined for alleged acts of incompetence and ineffectiveness as set forth in the Administrative Complaint, dated July 23, 1996, in violation of Sections 231.28(1)(b) and (f), Florida Statutes.
Findings Of Fact The Respondent holds Florida teaching certificate 353304, covering the area of English, which is valid through June 30, 1999. During the 1992-1993, 1993-1994 and first half of the 1994-1995 school years, the Respondent was employed as a teacher at Oak Ridge High School in the Orange County School District. 3. During the 1992-1993, 1993-1994 and 1994-1995 school years, administrators at Oak Ridge High School received numerous complaints from students and parents about the Respondent’s teaching performance. Many students requested permission to be transferred out of the Respondent’s English class because they were not learning anything. 4. During the 1992-1993, 1993-1994 and 1994-1995 school years, administrators at Oak Ridge High School conducted both formal and informal observations of Respondent’s teaching performance in the classroom. The administrator’s observations consistently disclosed that Respondent was disorganized and not in control of her students. Respondent exercised poor disciplinary methods with her students. Upon repeated requests, Respondent could not produce her grade book, or other documentation, to support her grading of students. Respondent’s behavior with, and around, students in the classroom was erratic and aberrant. Her actions in and out of the classroom were unusual, inexplicable and disturbing to her students and colleagues. Respondent’s assigned room was disheveled and dirty. Although administrators at the high school offered the Respondent professional help, made useful suggestions and recommended workshops and in-service training, the Respondent failed to follow their advice or attend any workshops or training sessions. As the result of her erratic and aberrant conduct, in January 1995, the Respondent was relieved of her teaching duties by the Orange County School District and directed to undergo psychiatric evaluation. The Respondent refused to comply with said directive. The Orange County School District brought dismissal proceedings against the Respondent based upon her unsatisfactory teaching performance, her inappropriate conduct and behavior, and her refusal to comply with directives. The Respondent failed to respond to the notice of the recommendation for dismissal. Respondent was subsequently dismissed from her position of employment. The Respondent’s teaching performance during the 1992- 1993, 1993-1994 and the first half of the 1994-1995 school years demonstrated that she was incompetent to teach. The Respondent’s personal conduct during the 1992-1993, 1993-1994, and the first half of the 1994-1995 school years at Oak Ridge High School seriously reduced her effectiveness as an employee of the Orange County School Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent, Ruby Lightsey, did violate the provisions of Sections 231.28(1)(b)and (f), Florida Statutes, due to her incompetence and ineffectiveness. It is further RECOMMENDED that a Final Order be issued revoking Respondent’s teaching certificate subject to re-application upon such conditions as the Education Practices Commission shall deem appropriate and necessary. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904)488-9675 SUNCOM 278-9675 Fax filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 Ms. Ruby Lightsey 524 Kittredge Drive Orlando, Florida 32805 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Karen B. Wilde Executive Director The Florida Education Center Room 224-B 325 West Gaines Street Tallahassee, Florida 32399 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 422775 (graduate, rank 3), which expires on June 30, 1984. She is certified to teach biology and health education at the secondary (grades 7-12) school level. She is now employed by the Duval County School Board as a teacher at Douglas Anderson Middle School. (Testimony of Cobb; Prehearing Stipulation; P-4.) In January, 1974, Respondent pleaded guilty to a misdemeanor crime: the obtaining of public assistance by fraud in violation of Section 409.325, Florida Statutes. On January 28, 1974, the County Court of Duval County adjudged her guilty and placed her on probation. (P-1.) On November 23, 1976, the State Attorney of Duval County filed a criminal Information charging Respondent with petit larceny. Essentially, he alleged that, on November 21, 1976, she took merchandise belonging to Winn-Dixie Stores, Inc., without paying for it. On November 30, 1976, she entered a plea of nolo contendere to the petit larceny charge; she was adjudged guilty by the County Court of Duval County and sentenced to pay a $50 fine and court costs. (P-2.) In July, 1978, Respondent applied for a Florida teaching certificate. Section V of the application asked: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation"? By marking the appropriate space, she answered "No". (P-3.) She executed the application before a notary public on July 14, 1978; she expressly certified that: I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28 F.S.) I further certify that all information pertaining to this application is true and correct. Pursuant to her application, and in reliance upon the representation that she had never been arrested or involved in a crime, the Florida Department of Education issued her the teacher's certificate which she now holds. (Testimony of Lee; P-4.) At the time she completed her application, Respondent was aware of her criminal record and knew that she had been involved in at least one criminal offense--the 1976 offense of petit larceny. At hearing, she could not explain why she denied any past involvement in a criminal offense: Q.: [Counsel for Commissioner] : So, you knew [when you applied for a teacher's certificate] that you had been involved in a criminal history or had had an involvement with the law? A.: [Respondent]: In '76, yes. Q.: Okay, why didn't you put, "yes"? A.: I just didn't. Q.: But you . . . you knew you had been involved in a criminal offense. A.: In '76, yes. : So then why didn't you put, "yes"? A.: I just didn't. (Tr. 126.) It must be concluded that Respondent knowingly falsely represented to the Department of Education that she had no prior involvement in any criminal offense; that she misrepresented her criminal record in order to obtain a Florida teacher's certificate. (Testimony of Cobb; P-1, P-2, P-3.) Whether an applicant has ever been arrested or involved in a criminal offense is a material factor in the Department's evaluation of an application. An application may be denied if the applicant has committed acts which would justify suspension or revocation of a teaching certificate; it is likely-- although not certain--that, if the Department was aware of Respondent's past criminal record, her application would have been denied. (Testimony of Lee.) When Respondent submitted an application for employment with the Duval County School Board on July 24, 1978, she falsely answered "No" to the question: "Have you ever been arrested for any other offense other than minor traffic violations"? (Tr. 49.) She knew her answer was false 2/ . Had her criminal record been revealed, she would not have been recommended for employment. (Testimony of Epting, Cobb.) From October 7, 1978, to November 11, 1978, Respondent obtained unemployment compensation even though she was employed by the City of Jacksonville. She obtained the unemployment compensation by falsely indicating she was not employed. Consequently, a criminal Information was filed on April 29, 1980, by the State Attorney of Duval County charging her with unemployment compensation fraud. On June 4, 1980, she pleaded guilty to the charge; however, the Circuit Court of Duval County withheld adjudication, placed her on probation for one year, sentenced her to three weekends in county jail, and directed that she make complete restitution of the funds wrongfully collected. (P-6.) Respondent acknowledges that she knew her action was wrong, that she knew she was not entitled to the unemployment compensation funds. She explains that she was in financial need and behind on her house payment; she feels her actions were justified, under the circumstances, because Jacksonville (her employer) had promised that she would continue to be employed. Instead--after she had incurred long-term financial commitments--Jacksonville terminated her employment. She has now made full restitution for the wrongfully taken funds. (Testimony of Cobb.) Respondent has been an effective and satisfactory teacher during the 1980-1981 school year. Her ratings have been the highest possible; she has shown initiative and established rapport with her students. Her principal recently promoted her to chairman of the science/health department and recommended that she be reemployed for the 1981-1982 school term. (Testimony of Poppell; R-1.) Teachers in Duval County are held to a high standard of character and conduct. A teacher's involvement in crime would tend to violate those standards; parents would be unwilling to entrust the education of their children to such an individual. (Testimony of Poppell.) The Commissioner's proposed findings of fact have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's Teacher's Certificate, No. 422775. DONE AND RECOMMENDED this 3rd day of November, 1981, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1981
The Issue The issue is whether Petitioner’s Petition for Relief should be dismissed for failure to allege facts sufficient to invoke the jurisdiction of the Florida Commission on Human Relations (the “FCHR”) under section 760.10, Florida Statutes.1 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
Findings Of Fact The Department is an employer as that term is defined in section 760.02(7). The Petition for Relief alleges the following ultimate facts, which are accepted as true for purposes of ruling on the Motion: I believe I have been discriminated against based on my race (Black), sex (male), and age (over 40). I also believe I am being retaliated against for filing a complaint with Florida Commission on Human Relations and in Federal Court. I have been working within the Gadsden County School system since January 2008 as a substitute teacher and have teaching experience. Around or on October 2020, I applied for a Social Studies position and was not offered an interview by the principal because DOE deliberately and maliciously held clearance letter to deny employment. Section 760.10 titled “Unlawful employment practices,” is the statute under which the FCHR exercises jurisdiction of the Petition for Relief. Section 760.10(1)(a) states that it is an unlawful employment practice for an employer to discriminate against any individual “with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” The Motion states that Petitioner is not, and never has been, an employee of the Department. Respondent’s Chief of Human Resource Management, David Dawkins, conducted a system-wide search and verified that Petitioner has never been employed by the Department. Mr. Dawkins’s affidavit to that effect was attached to the Motion. Mr. Jones did not contest the contents of Mr. Dawkins’s affidavit. The Motion also references section 760.10(5) as a possible avenue under which Mr. Jones might seek relief against the Department. Section 760.10(5) provides: Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. In theory, the Department’s alleged “deliberate and malicious” withholding of Mr. Jones’s “clearance letter,” i.e., a Temporary Certificate to teach, could constitute a violation of section 760.10(5). However, the Department pointed out that after Mr. Jones applied for a Florida Educator Certificate, the Department sent him an “Official Statement of Status of Eligibility” on October 12, 2017. A copy of the Department’s letter to Mr. Jones was attached to the Motion. The letter informed Mr. Jones that he was eligible for a Temporary Certificate covering Social Science (Grades 6-12), if he completed the following requirements and documented them to the Bureau of Educator Certification (“BOE”): verification of employment and request for issuance of certificate on the appropriate certification form from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program. results of your fingerprint processing from the Florida Department of Law Enforcement and the FBI. Your employer will assist you in completing the fingerprint process. If your application or fingerprint report reflects a criminal offense or suspension/revocation record, your file will be referred to Professional Practices Services for further review. Issuance of your certificate will be contingent upon the results of this review. The Motion states that Mr. Jones submitted only the results of his fingerprint processing to BOE. Therefore, BOE was legally precluded from issuing a Temporary Certificate to Petitioner. Attached to the Motion was the affidavit of Daniel Moore, Chief of BOE, attesting to the fact that a request for issuance from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program is required in order for BOE to issue a Temporary Certificate. Mr. Moore’s affidavit is confirmed by Florida Administrative Code Rule 6A-4.004(1)(a)2., requiring verification of full-time employment by a Florida school district before a Temporary Certificate may be issued. Mr. Jones did not contest the contents of Mr. Moore’s affidavit. Based on the foregoing, the Motion requests entry of a summary recommended order of dismissal because Mr. Jones’s pleadings and admissions of fact, including those in his response to the Motion, are facially and conclusively insufficient to prove that he was ever an employee of the Department, or that the Department’s failure to issue a teaching certificate to Mr. Jones was based on anything more than the ministerial operation of the Department’s own rule. Mr. Jones’s response to the Motion does not address, and therefore appears to concede, the Department’s statement that he is not and has never been an employee of the Department. Mr. Jones did not allege that he has ever been an employee of, or an applicant for employment by, the Department. Mr. Jones’s response does not address the fact that the Department’s rule forbids it to issue a Temporary Certificate without verification of full- time employment. Rather, Mr. Jones pursues an argument alleging that the denial was somehow based on his criminal record and that denial on that basis is discriminatory because of the disproportionate percentage of African American and Latino citizens who have criminal records in comparison to Caucasians. Mr. Jones claims that the Department’s stated reason for denying him a Temporary Certificate was pretextual and that the actual reason was racial discrimination premised on his criminal record. In a related case, Mr. Jones has alleged that the Gadsden County School Board declined to hire him because of his criminal record, and that this declination was a pretext for discrimination based on race, age, and/or sex. The merits of Mr. Jones’s case against the local school board and its subsidiary institutions are not at issue here. The question in this case is whether the Department had anything to do with Mr. Jones’s failure to gain employment by the Gadsden County School Board. The undisputed facts establish that the Department’s role in this process was purely ministerial. Had Mr. Jones secured employment, the school that hired him would have requested the issuance of a Temporary Certificate by the Department. By operation of rule 6A-4.004(1)(a)2., the Department would have issued the Temporary Certificate. The Department had no role in the decisions of the local school officials to hire or not hire Mr. Jones. It is found that Mr. Jones has not alleged facts sufficient to state a case against the Department under section 760.10, and that he would not be able to prove at hearing that he was ever an employee of the Department, or that the failure to issue a Temporary Certificate to Mr. Jones was anything more than the Department’s following the requirements of its own rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Education did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dan Saunders Florida Department of Education Turlington Building, Room 101 325 West Gaines Street Tallahassee, Florida 32399 Ronald David Jones 1821 McKelvy Street Quincy, Florida 32351 Paula Harrigan, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32399-0400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
