The Issue The issues presented are whether Respondent provided prohibited assistance to examinees in a Florida Comprehensive Assessment Test in violation of Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2002), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B- 1.006(3)(a), (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 685117 that is effective through June 30, 2007 (teaching certificate). Respondent is certified to teach elementary education, including math, science, and social studies. The Brevard County School District (District) has employed Respondent as a teacher for 14 years. In March 2003, the District employed Respondent as a fifth-grade teacher at Gemini Elementary School (Gemini). At Gemini, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth graders. A student identified in the record as L.H. was upset after the first day of the FCAT exam. She told her mother that night that she felt like she had cheated because of assistance she received from Respondent during the FCAT. The next day, the mother of L.H. reported the allegation to administrators at Gemini. The administrators immediately replaced Respondent as a proctor, conducted an investigation, invalidated the test scores of 26 students, and subsequently transferred Respondent to Endeavor Elementary School (Endeavor). While the results of the investigation were pending, District employees conducted a public meeting to allow parents to voice their concerns over the invalidation of FCAT results. District employees did not address the specific facts surrounding the invalidation of the test results due to the pending investigation. However, the matter gained public attention as a result of the actions of District employees. District employees rely, in part, on FCAT scores to determine whether fifth-grade students progress to the sixth grade. In March 2003, Gemini fifth graders generally needed a passing score on the FCAT to progress to the next level. The District also needed to test at least 95 percent of its fifth- grade students or face applicable sanctions. The invalidation of the FCAT scores did not prevent any of the 26 students from progressing to the sixth grade. Nor did the invalidation of the FCAT scores prevent the District from testing 95 percent of the students in the District. On May 17, 2005, Petitioner issued an Amended Administrative Complaint (Complaint). The Complaint alleges, inter alia, that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2002). The statute makes it a violation for Respondent to knowingly or willfully coach an examinee during the FCAT or alter or interfere with the response of an examinee. Respondent signed an FCAT Test Administration Security Agreement (security agreement) indicating that she had read and understood the statutes and rules related to the administration of the FCAT. A test manual and training that proctors received before the FCAT directed Respondent to read test directions to examinees and provide no additional help. No finding is made that Respondent failed to follow test manual and training directions. The Complaint does not allege that Respondent failed to "follow test administration directions specified in . . . test . . . manuals. . . " within the meaning of Subsection 100824(1)(f), Florida Statutes (2002). Evidence of what transpired in Respondent's examination room in March 2003 consists of the testimony of five students and the written statement of another student, all of whom Respondent proctored. Incriminatory evidence consists primarily of the testimony of four students. Two students testified at the formal hearing, and two testified by deposition. The rest of the incriminatory evidence enters the record as a written statement from a fifth student completed in April 2003.1 Exculpatory evidence consists of the testimony of a sixth student who testified during the formal hearing. The six students are identified in the record, respectively, as T.M., L.M., S.O., J.C., L.H., and W.D. They were approximately 11 years old in March 2003. The five students who testified were approximately 13 years old at the time of the formal hearing, and approximately two years had passed since they took the FCAT. None of the students were enrolled in Gemini at the time of the hearing. For reasons discussed in the Conclusions of Law, it is legally insufficient for incriminatory evidence to merely show that Respondent provided assistance "by any means" or "in any way." The testimony and written statement must be clear and convincing that Respondent committed a specific act that is statutorily prohibited because it coaches an examinee or alters or interferes with the examinee's response (prohibited assistance).2 Incriminatory evidence must satisfy two standards to be clear and convincing. The two standards have been judicially differentiated as a qualitative standard and a quantitative standard.3 The qualitative standard requires incriminatory evidence to satisfy several requirements. The five students who testified and provided a written statement for Petitioner must be credible. The memory of each student must be clear and lack confusion. The content of the testimony and written statement must describe what was said and done during the FCAT examination precisely and explicitly and must distinctly recall material facts. The testimony and written statement must be direct, unequivocal, and consistent.4 Incriminatory evidence opining that Respondent assisted an examinee is conclusory if it is not substantiated by precise and explicit details that are distinctly remembered by the student and are sufficient for the trier of fact to independently determine whether the conduct of Respondent provided prohibited assistance to an examinee. Conclusory testimony fails the qualitative standard, is not clear and convincing, and invades the province of the trier of fact by denying the trier of fact an evidential basis to independently determine whether the specific acts committed during the FCAT amounted to prohibited assistance.5 Incriminatory evidence must also satisfy a quantitative standard. The sum total of incriminatory evidence must be of sufficient weight that it produces in the mind of the trier of fact a firm conviction, without hesitation, as to the truth of the factual allegations in the Complaint.6 The trier of fact bases the remaining findings on a determination of whether it is clear and convincing from the testimony and written statement of the six students that Respondent provided prohibited assistance to an examinee. The trier of fact first weighs the incriminatory evidence to identify evidence that satisfies the qualitative standard (qualitative evidence) and then determines whether the qualitative evidence satisfies the quantitative standard. The testimony of S.O. was credible, but the trier of fact was unable to assess the credibility of T.M. and L.M. by observing their demeanor and candor. The content of the testimony and written statement is conclusory. The incriminatory evidence lacks the precise and explicit detail needed for the trier of fact to independently substantiate the conclusions of the students. S.O., T.M., and L.M., each stated in conclusory fashion that Respondent provided assistance to the respective examinee on one question in the science portion of the FCAT. However, none of the students distinctly remembered their respective question; the answer each provided; or the details of the conduct or statements of Respondent.7 It is less than clear and convincing that the answer each student provided was any different from the answer the student would have provided without the alleged assistance from Respondent. The conclusory statements by S.O., T.M., and L.M. are tantamount to opinions on an ultimate issue of fact without precise and explicit details required for the trier of fact to independently find that the statements and conduct of Respondent concerning a specific question and answer provided prohibited assistance. Such conclusory evidence effectively invades the province of the trier of fact. The testimony of J.C. is sufficiently specific to satisfy the qualitative standard for clear and convincing evidence. J.C. testified that he asked Respondent what a waxing crescent moon is, and Respondent stated it is a one-fifth moon to the left. However, J.C. testified by deposition, and the trier of fact is unable to determine the credibility of J.C. by assessing the demeanor and candor of the witness. Moreover, it is less than clear and convincing that Respondent provided J.C. with the answer to the question, coached J.C., or altered or interfered with the response of J.C.8 There is no evidence that the response J.C. provided to the question was any different from the response he would have provided in the absence of the alleged assistance from Respondent. The testimony of L.H. is credible and sufficiently detailed to satisfy the qualitative standard for clear and convincing evidence. L.H. testified that Respondent answered an inquiry from L.H. by stating that the test question has nothing to do with the sun and the moon and to take away all the answers about the sun and the moon. L.H. testified that only one answer remained. The testimony of L.H. also provided sufficient detail to enable the trier of fact to make an independent finding as to whether the effect of the alleged assistance was to coach L.H. or to alter or interfere with the response given by L.H. The testimony of L.H. is the only evidence from Petitioner that satisfies the qualitative standard for clear and convincing evidence. However, the testimony of L.H. is not quantitatively sufficient to be clear and convincing evidence. For reasons stated in the Conclusions of Law, the testimony of one fact witness that is not corroborated by other clear and convincing evidence is not legally sufficient to be clear and convincing. Even if uncorroborated testimony were legally sufficient, the testimony of L.H. does not satisfy the quantitative standard for clear and convincing evidence because it is in apparent conflict with exculpatory testimony from W.D. W.D. testified that Respondent refused to assist him during the FCAT and did not assist anyone else.9 The testimony of W.D. conflicts with that of L.H. if they took the FCAT together. Respondent was the proctor for L.H. and W.D. on the first day of the FCAT. Petitioner did not place W.D. in a different room from L.H. by clear and convincing evidence.10 Evidence that supports a reasonable inference that L.H. and W.D. were in the same room, although not a preponderance of the evidence, is sufficient to create hesitancy in the mind of the trier of fact and preclude a firm conviction that Respondent committed specific acts prohibited by Subsection 1008.24(1)(c), Florida Statutes (2002), and Florida Administrative Code Rule 6A-10.042(1)(c) and (d). If it were determined that Respondent violated the preceding statute and rule, it is less than clear and convincing that the violation was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2002). No applicable rule defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the alleged prohibited assistance was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the alleged prohibited assistance satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the alleged violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2002). After District employees investigated the incident and invalidated the test scores of 26 students, the District did not terminate the employment of Respondent. Rather, the District transferred Respondent to Endeavor. It is clear and convincing from the testimony of District personnel, administrators at Gemini, fellow teachers, parents, and students, and from previous job evaluations, that Respondent has been and continues to be an excellent teacher. Respondent brings out the best in students. Respondent has a wonderful rapport with students, instills in students the desire to learn, and inspires the imagination of students. Respondent emanates genuine enthusiasm in the classroom as well as a fun loving attitude. Respondent goes out of her way to make sure that children with learning problems achieve their goals and gain satisfaction. Respondent is very good at explaining difficult subjects to students. Respondent tutors students after school. Respondent is able to identify and focus on unique qualities in each student. Respondent does not display bias or prejudice toward any student. Respondent uses a reward system for classroom discipline that is effective and ensures an attentive class. Respondent is very calm in the classroom. Respondent never loses her temper or yells at students. Respondent is professional, consistent, structured, fair, compassionate, nurturing, and punctual. Respondent is intelligent, reliable, and dedicated. Respondent spends a great deal of time preparing her lessons and for her work with students. Respondent teaches math, science, and social studies and is a valuable asset to the District. Any notoriety surrounding the events in March 2003 arose from the action of District employees. For reasons stated in the Conclusions of Law, Petitioner cannot penalize the teaching certificate of Respondent on the ground that the alleged prohibited assistance became notorious through the actions of District employees. The alleged prohibited assistance did not violate relevant standards of professional conduct within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2002). The evidence is less than clear and convincing that Respondent possessed the culpable intent required in Florida Administrative Code Rule 6B-1.006(3)(e), (4)(b), or (5)(a). L.H. was very upset over the events in March 2003 and over the criticism she received from other students for complaining about Respondent to school officials. However, the evidence is less than clear and convincing that the alleged prohibited assistance failed to protect L.H. from conditions harmful to the learning or mental or physical health or safety of L.H. within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a). There is no evidence that public scorn threatened the safety of L.H. or interfered with what L.H. learned at Gemini. L.H. achieved her educational goals and progressed to the sixth grade. Nor is there any evidence that L.H. suffered any identifiable mental or physical impairment as a result of the alleged assistance from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2005.
The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of April, 2001.
The Issue Whether Petitioner established by clear and convincing evidence that Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2012)1/, and Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a), as alleged in the Administrative Complaint; and if so, what penalty shall be imposed?
Findings Of Fact Ms. Gonzalez holds Florida Educator’s Certificate 910377, covering the areas of Elementary Education and English for Speakers of Other Languages, which is valid through June 30, 2019. At all times relevant to the allegations in the Administrative Complaint, Ms. Gonzalez was employed as a third- grade teacher at the Poinciana Academy of Fine Arts in the Osceola County School District. The Florida Comprehensive Assessment Test (FCAT) is a statewide assessment test for evaluating student progress in the Next Generation Sunshine State Standards. Consequently, the standardized test is highly structured, and teachers who proctor the test are given specific instructions on how to administer the FCAT. The FCAT Test Administration Manual, section titled Administration and Security Agreement (Security Agreement), found on pages 315 through 317, specifically provides, in part, that: All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. Further, the Security Agreement lists as prohibited activities “[c]opying the passages or test items,” and “[c]ausing achievement of schools to be inaccurately measured or reported.” Finally, the Security Agreement includes an acknowledgement that: I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. On April 3, 2012, Ms. Gonzales signed the Security Agreement acknowledging her understanding of the test administration procedures. Also, on April 3, 2012, Ms. Gonzalez signed a document titled Test Administrator Prohibited Activities Agreement stating her understanding on the procedures for administering the FCAT. In particular, Ms. Gonzalez acknowledged that before testing she could not “[r]ead test items,” and that after testing she could not “[d]iscuss the content of the test with students.” On the week of April 18, 2012, the FCAT was being administered in the Osceola School District. During the April 18, 2012, testing date, a portion of the FCAT test assessed the students’ math skills. Ms. Gonzalez and Claudia Streeter (Ms. Streeter) were teachers administering the FCAT exams in their respective classrooms. These classrooms are connected to each other through a common area that is shared with another teacher, Amy Spence (Ms. Spence). At the time, Ms. Streeter was a reading teacher with Poinciana Academy of Fine Arts. After the morning testing session, Ms. Gonzalez and Ms. Streeter were eating lunch together in the common area. While in the common area, Ms. Spence entered the area to get her lunch. Ms. Spence overheard a comment between Ms. Gonzalez and Ms. Streeter that raised a question for her concerning whether or not the FCAT testing protocol was being followed. Specifically, Ms. Spence claimed that she heard Ms. Gonzalez state that she had looked ahead at the next day’s testing materials, a statement that both Ms. Gonzalez and Ms. Streeter deny having been made. The undersigned finds Ms. Streeter’s explanation that she was reading the FCAT test administrator’s manual for the next day, Session 2, credible, and that neither she nor Ms. Gonzalez stated that they had reviewed the next day’s FCAT testing questions. Ms. Spence’s testimony that she heard Ms. Gonzalez state that she had reviewed the next day’s FCAT questions is not credited based on her prior inconsistent statements concerning what Ms. Gonzalez stated, as pointed out by the cross- examination. In any event, Ms. Spence shared with another teacher that Ms. Gonzalez had indicated that she had previewed the FCAT questions for the next testing session. The teacher informed Ms. Spence that the comment should be reported to the school’s administration. Ms. Spence shared what she believed that she heard with David Noyes (Mr. Noyes), an assistant school principal, later that afternoon. After speaking with Ms. Spence, Mr. Noyes contacted Sheri Turchi, the school’s Principal (Principal Turchi), about the alleged comments. In turn, Principal Turchi directed that the information be provided to the School District’s Testing Coordinator, Angela Marino. Based on the statements allegedly made by Ms. Gonzalez and Ms. Streeter, Ms. Marino directed that neither Ms. Gonzalez nor Ms. Streeter be allowed to proctor the FCAT exam for the next day. The next morning on April 19, 2012, before school started, Ms. Gonzalez and Ms. Streeter arrived at school. Ms. Streeter found Ms. Spence crying in her classroom and asked what was wrong. Based on Ms. Spence’s answer, Ms. Streeter believed that there was a “misunderstanding” about the FCAT, and that she and Ms. Gonzalez might be in trouble. Ms. Streeter and Ms. Gonzalez went to the school office to clear up what they thought was a misunderstanding. On arrival at the school office, Ms. Gonzalez and Ms. Streeter were separated and not allowed to return to their classrooms. School officials provided Ms. Gonzalez and Ms. Streeter with notice that they were being investigated. School officials assigned two certified teachers with paraprofessionals to replace Ms. Gonzalez and Ms. Streeter in their classrooms for the FCAT testing that occurred on April 19, 2012. After the completion of the FCAT testing that second day, Ms. Marino along with Principal Turchi interviewed five or six students randomly selected from Ms. Gonzalez’s and Ms. Streeter’s classes about the FCAT testing. During the student interviews, Ms. Marino and Principal Turchi learned that Ms. Gonzalez and Ms. Streeter had combined their classes after the first day of testing. Further, some students stated that Ms. Gonzalez had conducted a short math study session in Ms. Streeter’s classroom. According to Principal Turchi, this study session or “drilling” of students between the two FCAT testing dates should not have occurred, and the classrooms should not have been combined without the administration’s approval. Ms. Gonzalez and Ms. Streeter do not dispute that they had combined their classes after the FCAT testing on the first day. Further, Ms. Gonzalez testified that she did answer some students’ math questions, but that she only answered a couple of questions asked by a few students, and that the entire exchange lasted between three and five minutes. Following the exchange, Ms. Gonzalez testified that she “crumpled” up the paper and threw it away. The undersigned finds Ms. Gonzalez’s description of her answering some students’ questions credible. Following the student interviews, school officials decided that substitute teachers would be needed to finish teaching Ms. Gonzalez’s and Ms. Streeter’s classes. That afternoon, on April 19, 2012, after finishing the FCAT testing and classes, Mr. Noyes and Principal Turchi went to Ms. Gonzalez’s and Ms. Streeter’s classrooms to retrieve lesson plans for the substitute teachers. As Mr. Noyes looked for Ms. Streeter’s lesson plans, he found two pieces of paper on the ELMO, a device used for projecting an image onto a screen. The two pieces of paper contained handwritten math problems. Mr. Noyes and Principal Turchi recognized that the pieces of paper contained “line graph” problems, which was consistent with statements made by students concerning the math review conducted by Ms. Gonzalez. Principal Turchi provided the papers to the School District, which then forwarded the documents to the State Department of Education. A comparison of the math problems written on the two pieces of paper with math problems contained in the FCAT testing materials for the second session conducted on April 19, 2012, are, in some instances, extraordinarily similar. For example, one of the problems found on the paper in Ms. Streeter’s class concerning the number of hours spent in traveling between two cities, using two different clock-faces, used the same exact times. Another example of the problems being exactly the same is seen in a graph comparing the number of cans removed from two six-packs. These two examples, out of the 20 math problems found on the two pieces of paper, appear to be live FCAT questions. Some of the problems found on the paper, however, are different and do not appear to be copied from the FCAT. The undersigned finds the testimony of students K.A. and J.V. that the two pieces of paper found in the classroom by Mr. Noyes as being the same paper used in the review conducted by Ms. Gonzalez is not persuasive. The students’ identification of the two pieces of paper does not meet the clear and convincing standard for two reasons. First, the undersigned did not find it credible that the students could positively identify the math problems found on the paper as being the same problems from the study review conducted by Ms. Gonzalez nearly two and a half years after the event. Second, the students’ written statements also suffer credibility problems. For example, K.A.’s written statement dated May 22, 2012, again over one month after the event at issue, states in pertinent part, verbatim: I was in Ms. Streeter class in Reading Ms. Streeter in math Ms. Gonzalez. Ms. Streeter gave me the FCat After sesion 1 they took the FCat Review some questions. it help me with Sesion 2 on paper it had 5x table. Ms Gonzalez review line plot. I saw under the smart board. Below K.A.’s written statement is another handwritten note by Ms. Sheree Fletcher which states: Sheree Fletcher showed K.A. the paper found in Ms. Streeter’s class – She recognized it as the review given by Ms. Gonzalez. SMF This handwritten note consists of Ms. Fletcher’s hearsay statements about statements purportedly made by K.A., within the document. The undersigned finds neither the students’ testimony nor the offered written statements as providing clear and convincing proof that the paper found by Mr. Noyes was written by Ms. Gonzalez. Both parties presented expert testimony in an attempt to address whether or not Ms. Gonzalez was the author of the paper found in Ms. Streeter’s classroom. The testimony showed that neither of the two experts viewed the original documents in formulating their opinions; rather, both witnesses were provided facsimile copies of the documents upon which to base their opinions. Ms. E’Lyn Bryan, Petitioner’s expert, offered the opinion that: After a thorough examination, it is the opinion of this examiner that based on the photo copies being a true representation of the original documents that the handwriting appears to be that of Carol Gonzalez. In contrast, Mr. Bruce Dekraker, Respondent’s expert, concluded that: With the material available for examination, and contingent upon all copies being true representations of the originals they represent, it has been determined that the absence of individual identifiable characteristics in the writing in question, precludes an identification or elimination with respect to Carol Gonzalez, (K1). The undersigned finds Mr. Dekraker’s explanation credible that without viewing the original documents for comparisons that it would be extremely difficult to make a definitive handwriting analysis. As Mr. Dekraker explained, handwriting analysis requires a comparison of the formation of the strokes and pressure applied to the paper. Moreover, Mr. Dekraker credibly explained that facsimile copies often distorted the letters and numbers, and that in the instant case there were too few numbers and letters to make a definitive analysis. This conclusion is reflected in Ms. Bryan’s own conclusion which conditions her own opinion on the photocopies being a “true representation” and states that the handwriting “appears to be that of Carol Gonzalez.” Based on the expert witnesses’ reports and testimonies, the undersigned finds that the handwriting evidence was inconclusive as to whether or not Ms. Gonzalez authored the two pieces of paper found in Ms. Streeter’s classroom. Petitioner failed to prove by clear and convincing evidence that Ms. Gonzalez authored the paper found in Ms. Streeter’s classroom by Mr. Noyes. Finally, Mr. Noyes, who is currently a principal at Kissimmee Elementary, credibly testified that Ms. Gonzalez is a teacher at his school, and that he considered her an asset to the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent not guilty of the charges in the Administrative Complaint. DONE AND ENTERED this 24th day of March, 2015, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 24th day of March, 2015.
The Issue Whether respondent was in violation of Section 43.201 (6), Florida Statutes, and Rule 10D-41.33(2), Florida Administrative Code, by failing to observe certain quality control procedures and by failing to document actions taken as alleged in the Administrative Complaint.
Findings Of Fact STANDARDS APPLIED: In 1967, the Medicare program was established by the federal government. It provided for reimbursement to independent clinical laboratories for services furnished to Medicare patients. Standards for the clinical laboratories were set forth in Subpart M of the Social Security Administration's Regulations No. 5 (Code of Federal Regulations, Title 20, Chapter 3, Part 405), entitled Conditions for Coverage of Services of Independent Laboratories (henceforth Subpart M). Subpart M was administered by the Health Care Financing Administration (HCFA). Also in 1967, the Clinical Laboratories Improvement Act of 1967 (CLIA) was passed by the federal government which applied to laboratories engaged in interstate commerce, and a new Part 74 was added to the Public Health Services Regulations, Title 42, Code of Federal Regulations, which set forth the standards for these laboratories. In 1967, the Florida legislature completely revised the clinical laboratory law that had been in effect in Florida since 1949 by enacting the Florida Clinical Laboratory Law. Ms. Phillips testified that the purpose of the legislation was to parallel the federal requirements for clinical laboratories so that the same standards would apply to all laboratories in Florida. Thus Florida has applied federal standards in its state inspections since 1967. Rule 10D-41.33, Florida Administrative Code, 1/ contains language patterned after the language set forth in Subpart M in 1967. 2/ Thus, although the rule does not incorporate the federal standards by reference, HRS contends that clinical laboratories would be aware that federal standards would apply to state inspections due to the language used in the Rule. 3/ However, clinical laboratories in Florida were never specifically notified that federal standards would apply to state inspections and they were never sent federal regulations, standards or guidelines. TMRMC has been accredited by the Joint Commission on Accreditation of Hospitals (JCAH) since 1979. In 1978, the JCAH adopted the federal quality control standards. Therefore, JCAH accredited hospitals are not subject to federal inspection because, if they meet JCAH standards, they met federal standards. However, the JCAH inspects only once every three years. HRS INSPECTIONS: HRS has a contract with the federal government to perform the inspections of clinical laboratories that are required under federal law. HRS also performs the inspections required by state law. HRS applies the same standards regardless of whether it is a state or federal inspection. Since 1983, state inspections of clinical laboratories have been required annually. However, due to a lack of personnel, annual inspections of every laboratory have not been possible. When an inspection is done, the HRS surveyor has a checklist form to provide a guideline for the inspection. The checklist form follows the requirements in the rules and policies put out by the federal government. After the inspection is concluded, the hospital is not provided with a copy of the checklist but is given a list of deficiencies which are taken from the checklist. The inspector also informs the laboratory director of the deficiencies verbally at an exit conference. The hospital or laboratory gets the statement of deficiencies from HRS on a standard form which lists the deficiencies on the left side and provides space for the laboratory to indicate a plan for correction on the right side. The hospital fills in the right side of the form and returns it to HRS. If the laboratory does not receive a reply back from HRS, the response from the laboratory is acceptable to HRS. HRS INSPECTIONS OF TMRMC: The TMRMC laboratory has been inspected three times by HRS: in 1980, in 1982, and in 1985. The inspection involved in this case occurred from April 16th through April 19th of 1985. The inspection that occurred in 1982 resulted in cited deficiencies. The lab responded to those deficiencies in accordance with HRS procedure. TMRMC did not receive a reply back from HRS on most of the responses and, therefore, considered that those responses provided for adequate quality control. HRS does not customarily impose a fine for a violation unless it is a repeat violation. SPECIFIC CHARGES a. RIA BACKGROUND RECORD DID NOT CONTAIN ACCEPTABLE LIMITS: The RIA background records are associated with an instrument called a gamma counter. The gamma counter counts radioactivity. To insure accurate readings, the level of background radiation must be determined and must be within acceptable limits. Each day prior to running any tests, TMRMC personnel determined the background level, recorded it, and adjusted the machine to subtract the background level so that it would not affect the test results. However, as the background level gets higher, the possibility for error becomes greater. A background level that is too high might affect the test results. Therefore, an acceptable background limit is established. TMRMC established 35 as an acceptable limit. The limit was recorded in the procedures manual for the machine. Since the background limit was stated in the manual, the laboratory technologists did not write it down each time they recorded the background level. Laboratory personnel were to read the procedures manual prior to doing the test and thus would be aware of the limit. Further, the technologists who ran the tests were highly skilled personnel and, after performing the procedure several times, were aware of the limit since it does not change. The background level recorded was outside the limit nine days in March and about 14 days in April of 1985. However, there was no evidence presented as to how far over limit the levels were. TMRMC has a very stringent background limit. A limit of up to 100 would be acceptable. Therefore, at TMRMC, if the background level is slightly over limit, where the test results would not be affected, the machine might simply be adjusted to the background level. However, if the background level is well over limit, the machine would be cleaned. In 1982, TMRMC was notified of a deficiency in their records with the statement "RIA background counts records did not contain acceptable limits." (P. Ex. #7, p.3). TMRMC interpreted this as meaning that the background limit had to be recorded in the manual. The failure to write down the background limit each time the background level is recorded is not inadequate quality control since the background limit is recorded in the procedures manual. Although the labs inspected by Mrs. Bass have always included the background limit on their records, the repetition of the limit each time the level is recorded is simply unnecessary for adequate quality control, and there was no evidence presented that any state, federal, or other authority required that it be done to insure adequate quality control. b FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT OSMOMETER WAS CALIBRATED EACH DAY OF USE. An osmometer measures osmolality, the concentration of particles in a solution. TMRMC calibrated the instrument to three standards each time the instrument was run. The osmometer displays from 0 to 1,000 millivolts. A standard is placed in the instrument, and the instrument is set so that the volt reading correlates to the standard. TMRMC uses 100, 290, and 1,000 standards. Each standard is placed in the machine, the machine is calibrated to that standard, and an electronic curve is created. After all three standards are set, the technician puts a checkmark on the sheet to indicate the procedure has been followed. Each standard has its number on the bottle. Therefore, it is unnecessary to write down that the 100 standard was set at 100, the 290 set at 290, and the 1,000 set at 1,000. The checkmark indicates that all three standards have been properly set. After the standards are set, controls are run to insure that the calibration is correct. Mrs. Bass, who performed that inspection, felt that the three numbers had to be written down each time the machine was calibrated. However, TMRMC uses the same three standards to calibrate the osmometer each time, the written procedure for the machine requires that all three standards be used to calibrate the instrument, and a checkmark provides the same quality control as writing down 100, 290 and 1,000. Therefore, the checkmark is sufficient documentation to show that the osmometer was calibrated each day of use. HRS rules do not require that the standard number be written down each time to provide documentation, nor do the regulations of Medicare, the CLIA, or the College of American Pathologists. The only requirements are that the machine be calibrated and that the performance of the calibration be documented. FAILURE TO INCLUDE CONTROLS WITH EACH RUN OF TOXI LAB DETERMINATION Toxi-lab is a screening procedure for abusive drugs, such as marijuana and cocaine. A control should be included with each run. TMRMC did include a control with each run, but did not run a control each time in the extraction process. 4/ A control is a sample that contains the analyte which is being checked. It is run through the process at the same time that the specimen is tested. If the control reads the way it is supposed to read at the end of the process, it is presumed that the specimen has been properly processed. There is nothing in the HRS rules that requires a control to be run with each test. However, the federal regulations specify that a standard and a control are to be run with each clinical chemistry test when such are available. Further, adequate quality control would generally require a control to be run. However, with the newer more automated instruments and procedures, running a control with each test is not necessarily required. The toxi-lab test is a fairly new test which became commercially available in 1980 or 1981. There are two types of controls that are used with the test. When HRS inspected in 1982, it stated that a control needed to be run in the extraction process. However, there was no control available for the extraction process at that time. Subsequent to that inspection, a control for the extraction process was found. The company that produced the control recommended that it be run at least once a week, and TMRMC followed the manufacturer's recommendation. Running a control through the extraction process could indicate whether a tube was defective or whether the technologist's technique was correct. However, due to the nature of the test, the fact that the technologist's technique on the control is adequate does not indicate that the patient's specimens are handled properly, and the same applies to the incident of defective tubes. In other words, running a control along with the specimens cannot insure that the tubes with the specimens are not defective or that the technologist's technique on the specimens is the same as on the control. 5/ There was no evidence presented to show that the failure to run a control through the extraction process each time resulted in inadequate quality control. In 1982, HRS stated only that TMRMC had to run a control through the extraction process: it did not specify that the control had to be run each time. Therefore, TMRMC followed the manufacturer's recommendation for the frequency in which to run a control through the process. THREE LEVELS OF CONTROLS WERE NOT RUN ON THE FIRST SHIFT AND A MINIMUM OF TWO (2) LEVELS OF CONTROLS WERE NOT RUN ON EACH EIGHT-HOUR SHIFT THEREAFTER IN THE BLOOD GAS LABORATORY On the blood-gas analyzers, there are three basic levels of controls-a low, a medium, and a high-which are used to check the calibration of the instrument. TMRMC did not have any shift in which all three levels were run. Mrs. Bass stated that HRS requires three levels to be run on one shift, and two levels to be run on the other two shifts, in order for a lab to provide adequate quality control. There is a dispute among the authorities on what is necessary to provide adequate quality control. Some authorities suggest that three levels must be run on each of the three shifts; other authorities believe that two, two, and two is sufficient. In 1982, TMRMC was advised that they had to run the tests on a three, two and two basis. However, subsequent to 1982, TMRMC acquired a newer instrument that was more sophisticated. Thereafter, TMRMC ran one level on each shift, except on days when open-heart surgery was scheduled. On these days, two levels were run on the first shift. The new instrument acquired by TMRMC performs self- checks with sufficient frequency to detect problems in the instruments. The earlier instruments were completely manual and had no self-checks built into them. Therefore, a greater number of controls had to be run to provide adequate quality controls on the earlier machines. Further, the laboratory has two of these highly sophisticated instruments, and whenever a value for a patient deviates from the norm, the specimen is checked on the other machine. Although TMRMC contends that it was running at least one level on each shift, and two levels on the first shift when there was open heart surgery scheduled, TMRMC failed to provide any documentation that they were consistently running a control on the 11:00 at night to 7:00 on the morning shift. Obviously, despite the degree of sophistication of the instruments used by TMRMC even TMRMC felt that adequate quality control required that a control level be run in each shift. However, it is impossible to determine whether the control was run each shift because there was no documentation that it was done. Therefore, TMRMC failed to provide adequate quality control by failing to provide documentation that any control was run daily on the third shift. FAILURE TO CONSISTENTLY DOCUMENT CORRECTIVE ACTION WHEN CONTROL RESULTS WERE OUT OF LIMITS IN THE CHEMISTRY LAB: In February, March and April of 1985, control results in the chemical laboratory were out of limits on 21 occasions. During this time, there was no documentation of any action taken to correct this situation. There was no way of knowing what corrective action was taken before patient results were reported. Since there was no documentation as to what corrective action was taken when the laboratory records showed that the results were not within the stated acceptable limits, there was no way of knowing whether corrective action was actually taken. In many cases a control specimen may be out of limits and still be acceptable. Approximately five percent of the control results will be outside the limits that are set. Corrective action is not always indicated merely because the control is outside of the acceptable limits. It must be judged in the context of the entire day's work to determine whether there is something actually wrong or whether it is just a statistical fluke. Nevertheless, in the 21 instances cited, TMRMC failed to indicated that corrective action was not necessary under the circumstances. Because no documentation was provided, it is impossible to determine whether the out of limits results were acceptable, so that corrective action did not need to be taken, or whether the out of limits results indicated that corrective action needed to be taken and no corrective action was performed. Therefore, by failing to provide the appropriate documentation, TMRMC failed to provide adequate quality control. TAPES FROM THE QUANTUM DRIFT TEST WERE NOT RETAINED FOR TWO (2) YEARS: TMRMC was unable to locate the tapes from the Quantum drift test for the previous two years. During her investigation, Mrs. Bass asked the supervisor to produce the tapes containing the results of the Quantum drift test, which is used as part of RIA analysis, but the supervisor was unable to produce the requested documentation. TMRMC stated that the tapes for the Quantum drift test were retained for two years. The majority of them were discovered after the inspection. The tapes had been relocated from one room to another. Nevertheless, at the time of the inspection, TMRMC did not have the tapes and didn't know where they were. THE CONSTANT PACKING OF THE MICROHEMATOCRIT CENTRIFUGE, IN THE HEMOTOLOGY LAB, WAS NOT CHECKED QUARTERLY: To determine optimum packing of the centrifuge, twelve viales are paired, and one pair is run one minute, one pair is run two minutes, one pair is run three minutes, one pair is run four minutes, one pair is run five minutes, and one pair is run six minutes. The time which reveals the optimum packing in both of the tubes would be the amount of time to spin hemotocrits in the centrifuge. TMRMC did not provide any documentation to show that this procedure was run quarterly. In 1932, HRS advised TMRMC that the timer and constant packing of the microhematoc it centrifuge had to be checked quarterly. TMRMC responded saying that it felt that checking the timer monthly on the centrifuge and checking the speed of the centrifuge monthly was a better check than the constant packing quarterly. TMRMC also noted that such testing was in compliance with College of American Pathologists' checklist, and that quarterly packing would not assure better results. HRS failed to reply to TMRMC's response. Therefore, TMRMC assumed that HRS had accepted the alternate quality control provided by TMRMC. In that the evidence established that HRS replied to any response by a laboratory that was not acceptable, it must be concluded that the procedures followed by TMRMC provided adequate quality control. FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT CONTROLS WERE INCLUDED WITH FACTOR ASSAY: There are different factors pertaining to the clotting of blood. when Ms. Bass reviewed the records for February and March, she could not find any FDP controls, and for the month of February, she could not find any Thrombin controls. The controls are needed to insure that the reagents are performing as they should, that the methodology is performing as it should, that the technique is acceptable, and that the patient results are as accurate as possible. The records provided documentation that the controls were used in other months but not during the particular months mentioned. The problem with the documentation was that TMRMC had installed a computer system which only retained the results for a period of 45 days. Some of the supervisors did not realize that the results had to be printed onto hard copy within the 45 day period or they would be lost forever. Therefore, when Ms. Bass inspected in April, some of the documentation was missing because the section head forgot to run a hard copy of the results prior to 45 day expiration period. Nevertheless, without the documentation, it was impossible to determine whether those controls had been run during the months in question, and thus determine whether adequate quality control was provided. FAILURE TO INSURE THAT THE ACTUAL RESULTS FOR THE FIBROMETER TIMER AND STOPWATCH WERE RECORDED: TMRMC did have documentation showing the actual results of the fibrometer timer and stopwatch checks. For some reason unknown to the manager of the TMRMC laboratory, the records apparently were not seen by Ms. Bass during her inspection. The records were kept at the particular bench where the test was performed, and the manager had no idea why Ms. Bass did not see them. Had Ms. Bass asked the laboratory manager for the records, they would have been produced. The records indicate that the fibrometer timer was checked against the stopwatch for ten seconds, with an acceptable variation of plus or minus .3 seconds, and that the stopwatch was checked against the wall clock-for thirty seconds with an acceptable variation of plus or minus 1 second. Because TMRMC did document the results of the fibrometer check and the stopwatch check and did provide the acceptable limits on the records that were kept, TMRMC did not have inadequate quality controls. FAILURE TO INSURE THAT CORRECTIVE ACTION WAS CONSISTENTLY DOCUMENTED WHEN CONTROL RESULTS WERE OUT OF LIMITS. The above is the same violation alleged in violation a "e". However, this violation refers to the hematology lab, whereas "e" concerns the chemistry lab. On several dates, the controls were outside of the limits, and no documentation was provided to show what corrective action had been taken. On several other dates, there was no documentation indicating that the controls were run, and therefore there was no way to know if the results were out of limits. For the reasons set forth in the findings of fact for violation "e", TMRMC failed to provide. adequate quality control due to its failure to provide appropriate documentation of the action taken. THE CONSTANT PACKING OF THE MICROHEMATOCRIT-CENTRIFUGE IN THE FAMILY PRACTICE LAB WAS NOT CHECKED QUARTERLY: This is the same violation as alleged in violation "g", except that this refers to the centrifuge in the family practice lab rather than the centrifuge in the hematology lab. - For the reasons set forth in the findings of fact relating to violation "g", TMRMC provided adequate quality control by checking the timer and the speed of the centrifuge monthly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that TMRMC violated Rule 10D-41.33(2), Florida Administrative Code, as alleged in paragraphs 3(d), (e), (f), (h), and (j), dismissing those charges set forth in paragraphs 3(a), (b), (c), (g), (i) and (k), and imposing a fine of $100 for each violation, a total fine of $500.00. DONE and ENTERED this 17th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986.
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, through the EPC, is authorized to discipline Florida teaching certificates. The Respondent is Dewey McKinney, who, at all times relevant to this proceeding, held Florida teaching certificate number 163503. Mr. McKinney is qualified to teach physical education and to be a school principal. Mr. McKinney's certificate is valid through June 30, 1993. From approximately November, 1988, to October 14, 1991, Mr. McKinney served as a school principal for the Bradford County School Board (hereinafter referred to as the "School Board"). Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991. In September or October, 1989, Ms. Thornton fractured her elbow. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication. Mr. McKinney's testimony that he told Ms. Thornton that he was experiencing a migraine headache at the time he requested the medication is not credible. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton. Mr. McKinney realized that Ms. Thornton felt uncomfortable with his request after she told him that she had forgotten to bring her medication the day after Mr. McKinney's telephone call to her. Mr. McKinney's Request to Ms. Thornton to Pick Up Medication. While principal at Starke Elementary, Mr. McKinney asked Ms. Thornton to go to the store and buy Donnagel PG for him. This occurred at least 5 to 8 times. Donnagel PG is intended for the treatment of diarrhea. It contains paregoric, a pain reliever. Donnagel PG is not a prescription medication. In order to purchase it, however, the purchaser is required to sign for the medication and list their name, address and the date on a log. Ms. Thornton felt uncomfortable purchasing the Donnagel PG for Mr. McKinney because she did not like signing for medication she was not purchasing for herself. She agreed to Mr. McKinney's requests, however, because he was her boss and she felt intimidated. When questioned about these incidents by the Superintendent, Mr. McKinney agreed not to ask anyone to purchase Donnagel PG for him again. Mr. McKinney's Requests to Edna Allen for Prescription Drugs. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills. Based upon Mr. McKinney's testimony that he sensed that Ms. Tomlinson felt uncomfortable about his second request for some of her medication, Mr. McKinney has little excuse for placing Ms. Allen in the position he placed her in when he asked for her prescription medication. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications. Mr. McKinney's Failure to Insure that Student Medications Were Safely Stored. Prior to Mr. McKinney's employment as principal of Starke Elementary School, student medications at Starke Elementary School were kept in a vault in the administrative offices of the school. The medications were kept on a shelf in the vault. The vault was left open during the school day. The practice of keeping medications in the school vault on a shelf was continued after Mr. McKinney became principal of Starke Elementary School. Three employees were designated by Mr. McKinney to administer medications to students: Ms. Thornton, Geraldine Tomlinson, a member of the clerical staff, and Ms. Allen. A commonly dispensed medication was Ritalin, a medication taken by children for attention deficit disorder. Parents left medications which their children were required to take with only the three employees who were authorized to dispense the medications, the medications were kept in the vault, the three employees dispensed the medications to the students and the three employees informed the parents when the supply of medications was running low and needed to be replaced. Kathy Whitehead, a parent of a child that took Ritalin, informed Ms. Tomlinson that her child's medication, which she carefully counted, was running out too fast. As a result of concern over whether medications were being taken by someone, Ms. Tomlinson decided to stop keeping student medications on the shelf in the vault. Instead, Ms. Tomlinson decided to keep the medications in an unlocked tin cookie can. She also placed the can in an unlocked file cabinet and began keeping a log of the amount of medications left by parents and dispensed to students. Mr. McKinney's testimony that it was his idea to no longer keep student medications on the shelf is not credible. In addition to student medications, school supplies and student records were maintained in the vault. At all times relevant to this proceeding, the vault in which student medications were stored was left unlocked and open during school hours. The vault was accessible to all teachers and other employees of Starke Elementary School. During the 1990-1991 school year Catherine Rosier, mother of a student taking Ritalin, noticed that her child's medication bottle contained two different colored pills: light blue pills which contained Ritalin and white pills which Ms. Rosier had not seen before. It was subsequently determined that the white pills were not Ritalin. Mr. McKinney was present when Ms. Rosier noticed the white pills. Mr. McKinney reported the incident to the police and an Assistant Superintendent of Bradford County Schools. Mr. McKinney also took some of the white pills to a pharmacist. As a result of Ms. Rosier's discovery, Mr. McKinney instructed Ms. Thornton to purchase a lock box with two keys and begin to store the medications in the lock box. Mr. McKinney gave one key to Ms. Thornton and the other key to Ms. Tomlinson. The evidence failed to prove that Mr. McKinney took any of the missing medications at Starke Elementary School. Mr. McKinney did not, however, take adequate precautions to secure student medications until after problems had occurred. By leaving the vault open and accessible to all employees and faculty to keep student medications under lock and key, student medications were tampered with. Mr. McKinney's Removal as Principal of Starke Elementary School. As a result of the incident involving student medications described in findings of fact 36-46, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. Mr. Duncan also notified the State Attorney's office of the incident. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the other charges which are the subject of this proceeding. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney. Criminal Charges Against Mr. McKinney. In March, 1992, Mr. Duncan learned from the State Attorney's Office of the extent of the investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. Mr. McKinney has reluctantly admitted that he committed those violations although he still questions whether he did anything illegal. The other ten counts against Mr. McKinney involve allegations that Mr. McKinney obtained prescription medications from two different physicians without divulging that he was seeing both physicians. The evidence failed to prove whether these charges are correct. The criminal charges are still pending. A Pretrial Intervention Agreement has, however, been entered into to resolve the charges against Mr. McKinney. Pursuant to the Pretrial Intervention Agreement, Mr. McKinney agreed to, among other things, the following: 11) The Defendant agrees, at his expense, to enroll in a facility and submit to and comply with reasonable procedures or requirements employed by such a facility or a facility to which the Defendant is referred by such facility, including but not necessarily to providing urine samples at random times and to maintain a true and accurate log of all substances ingested or otherwise consumed and to not take nor undertake any action inconsistent with the goals referred to in Section I, paragraph 10) of this Agreement. Mr. McKinney has, in conformity with paragraph 11 of the Pretrial Intervention Agreement, referred himself to Vista Pavilion for evaluation and treatment for prescription medication abuse. At the time of the final hearing of this case, Mr. McKinney was attending another drug rehabilitation program pursuant to the Pretrial Intervention Agreement. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively. As a result of the charges against Mr. McKinney, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings, however, did not take into account all of the specific actions which are the subject of this proceeding. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board as a principal because of his solicitation of controlled substance from subordinate employees. Mr. McKinney solicited controlled substances from Mr. Thornton and Ms. Allen. As a consequence of these actions, Mr. McKinney placed subordinate employees in an untenable position. His actions also constituted the improper use of Mr. McKinney's position and power for his own personal gain. Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have impaired Mr. McKinney's ability to have effective working relationships with persons under his supervision. Mr. McKinney's effectiveness as a teacher and principal has also been impaired when the nature of the events involving Mr. McKinney's use of drugs as described in this Recommended Order is considered. Although Mr. McKinney has testified that he does not believe he has a drug problem, the weight of the evidence indicates otherwise. While it is true that the evidence failed to prove that Mr. McKinney misused drugs to the extent that he was not able to continue to be a productive member of society and the evidence failed to prove that Mr. McKinney meets some stereo type image of a drug user, Mr. McKinney has had difficulty with drug use. First, Mr. McKinney admittedly has suffered from a number of medical problems which have necessitated fairly significant treatment with medications. Secondly, Mr. McKinney has admittedly requested persons under his supervision for controlled substances in violation of State law; he has, therefore, solicited controlled substances. Thirdly, Mr. McKinney has sent employees to the drug store to pick up medications for him. Although this action alone may not be sufficient to conclude any significant wrongdoing, it is consistent with other problems. Lastly, Mr. McKinney has attended, and was attending at the time of the final hearing of this case, a drug rehabilitation program. Several witnesses were called by Mr. McKinney who testified about Mr. McKinney's good character. Some of these witnesses also indicated that they did not believe that Mr. McKinney had done anything terrible wrong or that he had lost his effectiveness in their minds. The testimony of Mr. McKinney's witnesses has been considered but found not to be persuasive in light of all the evidence presented in this proceeding. Mr. McKinney has caused public disrespect for himself and the education profession. The evidence failed to prove that Mr. McKinney's effectiveness as a principal or teacher have been impaired because the State Attorney investigated Mr. McKinney, because Mr. McKinney was arrested and charged with twelve felony counts, or because Mr. McKinney was suspended by the School Board.
The Issue Whether Respondent violated Section 760.10, Florida Statutes, by denying Petitioner employment with Respondent because of her sex (female).
Findings Of Fact Petitioner, a female and a member of a protected class, completed an application for employment with Respondent in or about February of 2002 for the position of Wastewater Operator "C." The particular position she applied for was a night shift position which runs from 11:00 p.m. to 7:00 a.m. In February of 2002, Respondent had an opening for a Class "C" Wastewater Operator's position. Prior to that time, this position had been open for approximately one year. Respondent's standard interview process for a wastewater position is that Charles McDonald ("McDonald"), the Wastewater Production Supervisor, reviews the applications to see if they have the minimum qualifications for the open position. If the applicant possesses the minimum requirements, McDonald will schedule an initial appointment with the applicant. At this initial appointment, McDonald reviews the duties of the position with the applicant and finds out some general background on the applicant. Once that is accomplished, McDonald will arrange for an interview with his superior, James Anselmo ("Anselmo"), the Division Chief over the water and wastewater treatment facilities of Respondent. Anselmo, in his capacity as a Division Chief, oversees the operations of the water and wastewater treatment facilities of Respondent, as well as all the personnel matters in those departments. Anselmo has served as a supervisor for Respondent for fourteen (14) years, and during that time has not had any grievances or complaints of discriminatory treatment filed against him. The Wastewater Operator "C" that Respondent was seeking to hire was to perform chemical analysis and perform general preventative maintenance work. This chemical analysis work on the water samples consists of performing "solids determination, chlorine residual and pH determination; perform [ing] sludge volume tests; measure dissolved oxygen levels; perform [ing] chlorine residual test; turbidity and telemetry monitoring." These chemical testing duties consist of more than gathering samples, but also include taking them to the lab, actually performing the tests and then reading and recording the results. These lab-testing duties are considered an essential function of this position. The job description for this position also states that an operator "performs general preventive maintenance work" on machines. Anselmo considered this requirement to include changing packing on pumps, changing oil, greasing motors and pumps, making adjustments on machines and fixing broken lines. He feels this requirement is important because it is necessary to have all of his wastewater employees cross-trained to perform multiple functions. Petitioner's application was initially forwarded to Anselmo, who reviewed it and was impressed with the fact that the applicant possessed an "A" license. As a result, he forwarded the application to McDonald to initiate the interview process. It made no difference to Anselmo whether the applicant was a male or a female. In or about March 2002, McDonald contacted Petitioner by telephone and arranged for her to come meet him for an initial interview. During this initial interview with McDonald, Petitioner indicated to him that she did not perform any maintenance duties at her previous employment with the City of Orlando. McDonald mistakenly understood Petitioner to say that she did not do any lab work at the City of Orlando, but rather it was done at the laboratory by others. After the initial interview with McDonald, he spoke with Anselmo and informed him that he had a lady that had put in for the Wastewater Operator "C" position, and suggested that he interview her. McDonald did not emphasize the fact that Petitioner was a female, but rather made his usual comment that it was either a lady or a guy that was coming in for the interview. Anselmo indicated that McDonald should bring her over immediately for the second interview. Petitioner then had an interview with Anselmo in his office later that same day. This interview began by Anselmo and Petitioner shaking hands. McDonald was present and handed Anselmo a copy of Petitioner's application. Prior to this meeting, Anselmo had not been in possession of a copy of Petitioner's application, other than his very brief initial review of it. Before getting into the substantive interview, Anselmo initially said to Petitioner "Carmen Christensen, that's a very unique name. I went to school with a friend, and his name was Carmen also." Anselmo intended this comment simply to be small talk, and to serve as an "ice breaker." Anselmo and McDonald both testified that Anselmo never stated to Petitioner: "I thought you were a man with the name Carmen." They also denied that Anselmo stated "I went to school with a twin by that name." Anselmo made no references to Petitioner's gender during the interview. This testimony is credible. After this initial "ice breaker," Anselmo then reviewed Petitioner's application and began asking her questions about it. As a result of not seeing the application prior to this, Anselmo got a few of the minor items on her application wrong. On her application, Petitioner indicated that her duties at the City of Orlando had required her to "grab samples." In reading this, Anselmo assumed that this meant that Petitioner simply gathered water and did not perform any laboratory tests on the sample. Thus, Anselmo was hoping that Petitioner would elaborate and demonstrate to him that she had actually performed laboratory testing on these samples. During the interview, Anselmo asked Christensen questions about her duties at the City of Orlando. Petitioner responded that she simply collected samples and carried them to the lab, and occasionally, ran a few tests. Petitioner did not share any specific types of tests that she had done while at the City of Orlando. Anselmo encouraged Petitioner to take the opportunity during the interview to elaborate on these duties, but she failed to do so. When he asked her whether she had performed specific tests, she respondent that she did not because laboratory employees had performed those tests at the City of Orlando. Petitioner also did not present Anselmo with any of the written certificates that she now claims she possesses. At no time during the interview did Petitioner give Anselmo sufficient reason to believe that she did more than gather water samples at her previous job and bring them to the lab. During the interview, Anselmo also asked Petitioner questions about her maintenance duties while at the City of Orlando. Petitioner responded that maintenance work at the City of Orlando was done by maintenance personnel and, thus, she had not done any such work. Finally during the interview, Anselmo asked Petitioner about the reasons for her termination by her previous employer, the City of Orlando. Petitioner informed Anselmo that she had been terminated from the City of Orlando based on allegations of "falsified records." The City considers allegations of falsification of records to be a serious violation. Anselmo was not able to verify the reasons for Christensen's termination from the City of Orlando because she had indicated on her application that they could not contact her previous employers. Based on this request by Petitioner, Anselmo made no independent efforts to verify the reason for her termination. At no time during the interview did Anselmo ever tell Petitioner that he did not want females working at the facility. In fact, Anselmo testified that he hires employees based simply on their qualifications, not their gender; although no other female operator is employed by Respondent. Other than the alleged comment about her name, Petitioner did not offer any other evidence that Anselmo had any problem with women working in the wastewater facility. Instead, Petitioner gave her "opinion" that she was not hired because she is a female. At the end of the interview, Anselmo informed Petitioner that Respondent was still accepting applications for the position. Following the interview, Anselmo and McDonald discussed Petitioner's qualifications as a candidate. They agreed that she appeared to be inexperienced based on her responses during the interview. In particular, they were concerned with her lack of maintenance and laboratory testing experience. Anselmo completed an Applicant Referral form on or about March 12, 2002, in which he indicated that Petitioner had been "rejected" for the position of Wastewater Operator "C." On that form, Anselmo indicated that Petitioner had been rejected for employment because she "said she had no lab experience or did not perform any maintenance. Performing lab tests and maintenance is crucial to this position." Anselmo testified that this form accurately sets forth the reasons on which he made the decision to reject Petitioner for employment. Subsequent to Petitioner's interview, McDonald and Anselmo had the opportunity to interview two additional candidates, Richard Neitling ("Neitling") and Richard Burns ("Burns"). Neitling set forth more laboratory testing experience than Petitioner in his interview and on his resume. He indicated during his interview with Anselmo that he had done the specific laboratory tests that Respondent does at its wastewater facility, including BOD's, suspended solids, mixed liquid suspended, sludge samples and TSS. He also indicated during his interview that he had maintenance experience, including tearing down pumps, changing filters and oiling and greasing machines. Based on these expressed qualifications and experience set forth in his application and presented during his interview, as well as the fact that he was a "C" Operator and that was the actual position being offered, Neitling was offered the position of Operator "C." It was later discovered, however, that Neitling had provided false information on his application, and, therefore, he was never actually hired for the position. Respondent then turned its attention to the application of Burns. On his application and resume, Burns indicated that he could perform "all aspects of treatment plant op's." In addition, he indicated that he had 15 years experience as a wastewater plant operator, and that he possessed a Level "A" operator's license, the same license possessed by Petitioner. After submitting his application for employment to Respondent, Burns received an interview from McDonald and the lead operator, Tad Blazer ("Blazer"). During this interview, Burns informed McDonald and Blazer that he had previously done laboratory testing including OUR's, BOD's, fecal's and others. They also asked Burns about his maintenance skills, and he informed them that he had received cross-training in maintenance, preventive maintenance and pulling of pumps while at Orange County. Approximately a week after this initial interview, Burns had an interview with Blazer, McDonald and Anselmo. In this second interview, Burns again shared his laboratory testing experience, his maintenance skills and his cross-training. In particular, Burns represented that he could do all of the laboratory testing that the position required, and that he had extensive background in equipment maintenance. Burns also indicated to Anselmo that he had 15 years of experience in all aspects of the treatment process, including lab work and maintenance duties. In addition, Burns informed them that he had spent two months at Orange County in a cross-training program that consisted of him performing strictly maintenance duties. During this interview, Burns also shared with Anselmo the reasons for his leaving Orange County. He informed Anselmo that he had been terminated by mutual agreement, but that the reasons for the termination involved a conflict with one supervisor, not actual performance problems. Following this interview, but prior to hiring him, Anselmo and McDonald visited Orange County's personnel department and reviewed Burns' file. In reviewing his file, they discovered that he had exceptional evaluations except for his last year, and that the only negative comments in his file involved failure to give proper notice prior to taking a vacation. There were no allegations of falsification of any records in Burns' file at Orange County. Based on his background and hands-on experience, Burns was eventually hired by Respondent for the Operator "C" position in May of 2002. At the time he was hired, Burns could perform all of the functions set forth on Respondent's job description for the position of an Operator "C." More importantly, he had conveyed to McDonald and Anselmo that he was capable of performing all of those duties. Respondent's wastewater facility is smaller than the facility that Petitioner worked at while with the City of Orlando. In fact, the City of Orlando's facility has a capacity of 25 million gallons of water a day, while Respondent's facility can handle only 750,000 gallons per day. In addition, the City of Orlando employs two or three times more employees that Respondent. William Hurley ("Hurley"), the Section Manager for the Orange County Wastewater Utility, testified that he has been employed in the wastewater industry for 28 years, and has worked at four different facilities during that time. In his experience, larger facilities often require different tasks from their operators than smaller facilities require of operators. Hurley also testified that he plays a role in the hiring of operators at Orange County. In this capacity, he would consider it a serious violation, and it would give him serious concern, if an applicant revealed to him during the interview process that there were allegations of her committing a falsification of records at her previous employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 31st day of January, 2003, 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 (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 31st day of January, 2003. COPIES FURNISHED: Carmen Christensen 5419 Shiloh Drive Adamsville, Alabama 35005 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Paul J. Scheck, Esquire Shutts & Bowen LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact 1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006. 2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District. 3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. 4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose. 5. Respondent had no prior disciplinary concerns. 6. Respondent had received satisfactory evaluations every year. 7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident. 8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003. 9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. 10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. 11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. 12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance. 13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. 14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. 15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions. 16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.” 17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT. 18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video. 19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual. 20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known. 21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class. 22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past. 23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days. 24. Respondent has proctored the FCAT every year since the incident, including this year, without problem. 25. The District found that a 30-day suspension plus training was sufficient discipline.
Conclusions Stipulated Conclusions. 26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. 27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden. 28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam. 29. Additionally, Florida Administrative Code Rule 6A- 10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers. 30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined. 31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint. Other Conclusions. 32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute. 33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes. 34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." 35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.” 36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to the actual portion of the Principles Respondent violated. Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” 37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1. 38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992). 39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows: Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality": The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996). 41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows: Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 42. The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude: involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. 43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). 44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society." 45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT. 46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3. Recommended Penalty. 47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority: The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, . . . provided it can be shown that the person [violated one of the subsections that follow]. 48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension. 49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this: (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission. The length of time the educator has practiced and the contribution as an educator; The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator’s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; Employment status; Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or self-gain inuring to the educator; Degree of physical and mental harm to a student or a child; Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC. 51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated. 52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order. 53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board. 54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra. 55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time. 56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for 30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate. DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2006.
