The Issue Petitioner, Florida Education Association ("FEA"), filed a Petition to Invalidate Administrative Action pursuant to Subsection 120.56(4)(a), Florida Statutes (2004), challenging the validity of a Technical Assistance Paper issued by the Florida State Board of Education, Department of Education, Student Achievement, Bureau of Student Assistance ("BOE"), alleging that it is an unpromulgated rule. The challenged Technical Assistance Paper dated March 2005, is titled "Modifications to the Consent Decree in the League of United Latin American Citizens et al. v. The State Board of Education, 1990."
Findings Of Fact Petitioner, FEA, is an employee association representing over 100,000 Florida educators, including teachers certified to teach English for Speakers of Other Languages (ESOL), for collective bargaining, representation in administrative and legal proceedings, professional development, and political activity. FEA's standing to bring this challenge was stipulated. Respondent, BOE, is an "agency" within the meaning of Subsection 120.52(1)(b), Florida Statutes (2004). BOE is generally responsible for oversight of public education in the State of Florida and is specifically responsible for administering the legislative plan of professional certification of Florida's public school educators. §§ 1008.32 and 1012.56, Fla. Stat. (2004). The BOE memorandum is challenged as an unpromulgated rule. While other documents containing the same information in different formats were circulated by individual school districts to educators, the parties agree that this Technical Assistance Paper fairly represents the substance of the issues in this dispute. It was stipulated that the Technical Assistance Paper has been made generally available to Florida educators. The content of the Technical Assistance Paper is not in question and is set forth below. In 1990, the League of United Latin American Citizens and 14 other organizations and individuals (collectively referenced here as "LULAC") brought suit in the United States District Court for the Southern District of Florida against the BOE, as it was then constituted, and other state officers, claiming that the Department of Education's ESOL standards violated federal and state law. The federal laws allegedly violated included the Equal Educational Opportunity Act, 20 U.S.C. 1703(f), and Title VII of the Civil Rights Act of 1964. On August 14, 1990, Judge James Lawrence King entered a Consent Order approving a settlement agreement. The Consent Order provided that the court would retain jurisdiction for the purpose of overseeing the implementation of the settlement agreement. Section IV of the settlement agreement, titled "Personnel," set forth the standards for certification of personnel to teach ESOL students. Two means for obtaining ESOL certification were established. "ESOL Endorsement" is a rider that may be obtained by a teacher already certified in another subject by completing 300 hours or 15 semester hours in ESOL. "ESOL Subject Area Coverage" requires a bachelor's or master's degree in Teaching English for Speakers of Other Languages ("TESOL") and a passing score on the ESOL subject matter examination. To implement Section IV of the settlement agreement, BOE amended its existing ESOL certification rule, Florida Administrative Code Rule 6A-4.0244, and adopted a new rule, Florida Administrative Code Rule 6A-4.0245. The rules provide: 6A-4.0244 Specialization Requirements for the Endorsement in English to Speakers of Other Languages -- Academic Class. Plan One. A bachelor's or higher degree with certification in another subject, and Fifteen (15) semester hours in English to speakers of other languages (ESOL) to include credit in each of the areas specified below: Methods of teaching English to speakers of other languages (ESOL), ESOL curriculum and materials development, Cross-cultural communication and understanding, Applied linguistics, and Testing and evaluation of ESOL. Plan Two. The endorsement in English to speakers of other languages will be added to a valid temporary or professional certificate when an individual completes the following: Holds a valid Florida educator's certificate with a coverage specified as appropriate in the 1989-90 Course Code Directory as adopted by reference in Rule 6A-1.09441, F.A.C., for teaching English to limited English proficient students. Documents at least two (2) years of successful teaching of English to limited English proficient students using ESOL strategies. The successful teaching shall have been gained prior to July 1, 1990, and verified in writing by a Florida district school superintendent. The endorsement will be retained on the professional certificate when an individual completes three (3) semester hours of college credit or sixty inservice points which are part of a district master plan for inservice education. The college credit or inservice points shall be completed for the first certificate renewal after July 1, 1990, and must be completed from the area(s) specified below. Methods of teaching English to speakers of other languages (ESOL), ESOL curriculum and materials development, Cross-cultural communication and understanding, Applied linguistics, and Testing and evaluation of ESOL. In the event the college credit or inservice points are not completed during the first renewal period, the endorsement will be deleted from the certificate. 6A-4.0245 Specialization Requirements for Certification in English for Speakers of Other Languages (Grades K-12)--Academic Class. A bachelor's or higher degree with an undergraduate or graduate major in English to speakers of Other Languages shall satisfy the specialization requirements for certification in English to speakers of Other Languages (Grades K-12). In 2002, the Florida Legislature enacted the "Florida K-20 Education Code," which included Section 1012.56, Florida Statutes (2004), setting forth revised educator certification requirements. See Chap. 2002-387, Laws of Florida, § 728. Among those requirements were the following: MASTERY OF SUBJECT AREA KNOWLEDGE.-- Acceptable means of demonstrating mastery of subject area knowledge are: Achievement of passing scores on subject area examinations required by state board rule; Completion of the subject area specialization requirements specified in state board rule and verification of the attainment of the essential subject matter competencies by the district school superintendent of the employing school district or chief administrative officer of the employing state-supported or private school for a subject area for which a subject area examination has not been developed and required by state board rule; Completion of the subject area specialization requirements specified in state board rule for a subject coverage requiring a master's or higher degree and achievement of a passing score on the subject area examination specified in state board rule; A valid professional standard teaching certificate issued by another state; or A valid certificate issued by the National Board for Professional Teaching Standards or a national educator credentialing board approved by the State Board of Education. * * * STATE BOARD RULES.--The State Board of Education shall adopt rules pursuant to ss. 120.536 and 120.54, as necessary to implement this section. PRIOR APPLICATION.--Persons who apply for certification are governed by the law and rules in effect at the time of application for issuance of the initial certificate, provided that continuity of certificates is maintained. BOE did not amend Florida Administrative Code Rules 6A-4.0244 and 6A-4.0245 to reflect the new statute's provisions. In January 2003, the LULAC plaintiffs filed a motion for a temporary restraining order and order to show cause for a preliminary injunction. The plaintiffs alleged that pursuant to Subsection 1012.56(4)(a), Florida Statutes (2004), the Department of Education intended to permit teachers to become certified to teach basic ESOL courses based solely on an examination, without completion of the coursework required by the settlement agreement and, therefore, in violation of the August 14, 1990, Consent Order. On September 2, 2003, the parties executed a "Stipulation Modifying Consent Decree," which provided, in relevant part: On August 14, 1990, this lawsuit was settled and a Settlement Agreement was approved as an order of the Court. On January 17, 2003, Plaintiffs' [sic] moved to enforce the terms of the Consent Decree and on February 28, 2003, the Court ordered the parties to commence mediation immediately. On April 25, 2003, the parties participated in mediation before former United States District Judge Edward B. David, in Miami, Florida. This is the first modification that the parties have sought of the original Consent Decree. The parties agree to modify the Consent Decree with respect to § IV (Personnel), as set forth herein. Nothing herein is intended to diminish any option for endorsement or coverage set forth in the August 14, 1990, Decree. Rather, this stipulation sets forth an additional means by which a certified teacher may obtain ESOL subject area coverage. It also establishes training and/or educational requirement [sic] for persons holding administrative and guidance counselor positions. All other requirements of § IV that are not inconsistent with this modification continue. A certified teacher may obtain ESOL subject area coverage by virtue of passing a state approved ESOL certification examination. Any teacher who receives coverage in ESOL through this option shall be required to obtain 120 hours of in-service training or continuing education in ESOL-approved courses within a three (3) year period of the date of their receipt of ESOL certification. This requirement includes those who have already been certified under the proficiency test method. Any ESOL-approved in-service hours and course work taken prior to gaining ESOL certification may be counted toward the required 120 post-certification hours. Defendants shall require that school administrators and guidance counselors be required to obtain sixty (60) [hours of] in- service training or continuing education in ESOL-approved courses within a three (3) year period of the effective date of this Stipulation. Any school administrators and guidance counselors hired after the effective date of this Stipulation shall have three (3) years from the date of being hired to meet this requirement. Any ESOL- approved in-service hours and course work taken prior to the effective date of this Stipulation or prior to hiring may be counted toward the required sixty (60) post-certification hours. The Department shall inform all districts of this modification within thirty days of court approval. It shall further require all districts to develop reasonable procedures to assure that all affected personnel are making regular progress in meeting its terms, which shall be reviewed in monitoring visits. No ESOL certificate shall be renewed for any teacher that obtained ESOL subject area coverage through the option described in ¶ 2 who has not completed the requisite training within three (3) years. * * * 8. This Stipulation shall become an addendum to § IV of the Consent Decree, and shall have the full force of the Consent Decree after approval by the Court. To the extent that anything herein is incompatible with the Decree, this Stipulation shall govern. * * * 11. The Defendants agree to commence rulemaking if necessary to effectuate the terms of the Stipulation within ninety (90) days of Court approval. As the quoted text makes apparent, the stipulation appends a 120-hour in-service training or continuing examination requirement to the examination-only certification scheme authorized by Subsection 1012.56(4)(a), Florida Statutes (2004). Additionally, the stipulation appears to contradict the "grandfathering" provision of Subsection 1012.56(13), Florida Statutes (2004), by making the continuing education requirement applicable even to those teachers already certified under the examination-only method. On September 9, 2003, United States District Judge Federico A. Moreno of the Southern District of Florida signed an Order approving the Stipulation Modifying Consent Decree. The court again retained jurisdiction of the case to oversee the implementation of the Stipulation Modifying Consent Decree. Pursuant to paragraph 4 of the Stipulation Modifying Consent Decree, BOE notified school districts of the new requirements for ESOL certification. This notification was accomplished by way of the disputed Technical Assistance Paper, which provides: MODIFICATIONS TO THE CONSENT DECREE IN THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS ET AL. V. THE STATE BOARD OF EDUCATION, 1990
Findings Of Fact On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period. RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981. COPIES FURNISHED: Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Batumane Shad Banto Kasanganay (Respondent), committed the offenses alleged in an Administrative Complaint issued June 24, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, as the Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate who are alleged to have violated the provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2008). At all times material to the allegations of this case, Respondent has held Florida Educator's Certificate No. 752042, covering mathematics, that is valid through June 30, 2010. From 1998 through the 2007 school year, Respondent was employed by the Palm Beach County School District as a math teacher at Bak Middle School (Bak). During his tenure at Bak, Respondent's students performed well on the Florida Comprehensive Assessment Test (FCAT) and the school became favorably ranked for its math achievement. Additionally, Respondent's students improved FCAT scores in mathematics over the course of his time with them. Prior to working with the students at Bak, Respondent worked in Okeechobee, Florida, and was teacher of the year one of the two years he taught at the Eckerd Learning Center, a school for juvenile offenders. Prior to the conduct complained of in this case, Respondent had no prior disciplinary concerns. Respondent had received satisfactory evaluations every year. Respondent, or "Mr. Kas" as he is also referred to in the record, came to the United States from central Africa. He spoke no English on his arrival but had received a degree in mathematics and physics from the Institute Alingea Studies. After moving to North Carolina, Respondent received a degree from Western Carolina University in Cullowhee, North Carolina, and became a United States citizen. Respondent travels under a S. passport and, at the time of the hearing in this cause, resides in Palmerston North, New Zealand. Respondent created a corporation named Mr. Kas, Inc., and opened "Mr. Kas Learning Center" in 2000 in order to better assist students with math anxiety to learn and improve mathematics skills. The learning center was a private business not affiliated with the Palm Beach County Schools where Respondent taught or tutored students from elementary school age through doctoral candidates to improve their math skills and to perform favorably on examinations. Respondent operated this "for profit" entity and received payment from those who participated in the after school program. The record is not clear as to whether Mr. Kas, Inc., was formally "doing business as" the "Mr. Kas Learning Center," but it is definite that only Respondent individually committed the acts complained of in the instant case. That is to say, all comments that were alleged to have been uttered were made by Respondent. No other individuals who may have attended or been associated with Mr. Kas, Inc., or the "Mr. Kas Learning Center" were involved. The alleged offending behavior was attributed solely to Respondent. None of the alleged behavior occurred during Respondent's work day at Bak. Respondent was a member of the Palm Beach County Classroom Teachers Association (CTA). It was customary for the CTA to provide workshops for its members and on several occasions Respondent was asked to conduct workshops. Additionally, Respondent assisted new teachers, members of the CTA, to pass the state certification examination. Respondent tutored/taught CTA members for compensation to pass the General Knowledge math portion of the certification examination. These sessions were generally group endeavors and Respondent was compensated based upon the number of persons in attendance. In addition to the foregoing, Respondent also worked with firefighters, police, nurses, and others who were required to pass a math competency section as part of their professional testing. Monday through Friday Respondent opened his learning center in the afternoon after school for school children. During this time he worked with students to complete their homework, prepare for tests, and study for exams. On Saturdays Respondent used the learning center to conduct group sessions to work with adults and professionals. The Department of Education publishes a preparation guide to address the General Knowledge test that must be passed for teacher certification in Florida. Respondent purchased the guide and used it and other questions he collected to develop a learning tool for persons who would take the Florida Teachers Certificate Examination and use his learning center for help to pass the math portion of the exam. Jennifer Tomko was a first year middle school teacher in Palm Beach County, Florida, during the 2006/2007 school year. Ms. Tomko applied for her teaching certificate with the Department of Education and was required to pass the General Knowledge examination, including the math section. On two occasions Ms. Tomko did not pass the math section. On her third attempt to pass, Ms. Tomko became distraught as she believed she had again failed to achieve a passing score on the math test. A test proctor observed Ms. Tomko's demeanor and suggested that she consider attending one of Respondent's tutor sessions at his learning center. Ms. Tomko had a "mentor teacher" at her school who had been tutoring her for several months. The mentor, Judith Warren, encouraged Ms. Tomko to attend Respondent's session. To that end, Ms. Tomko signed up for Respondent's Saturday math help session. When Ms. Tomko met Respondent and told him of her prior failed attempts to pass the math section of the exam, he assured her that with his help, she would pass the test. He remarked that it was her "lucky day." As part of his guarantee that she would pass the math section, Respondent provided Ms. Tomko with key phrases of the actual test questions along with the correct answer for the question. Respondent instructed Ms. Tomko to make flash cards to include the key phrase of the questions and to look for the answers he provided. Since Ms. Tomko did not have index cards with her, she used sheets of paper to make columns. The columns had the "key phrase" and the "answers" provided by Respondent. When Ms. Tomko got home, she copied the columns of information onto cards. The front of the card with the "key phrase" as provided by Respondent, the reverse of the card held the "answer." Respondent also gave Ms. Tomko a handout that included information regarding computing the distance between two cities. The information denoted in Respondent's handout contained real questions from the Florida teacher examination. These "live" questions were verbatim from the test and were sufficient to demonstrate Respondent had "collected" real information from the teacher examination in order to prompt his students with the correct answers. In fact, Respondent told Ms. Tomko to call him immediately after the test to let him know of any difficult questions. Respondent represented that with information regarding difficult questions, he could better assist future applicants taking the exam. Presumably, this is how Respondent was able to assemble the information he provided to Ms. Tomko and to assure her that she would pass the math examination. Obviously, by collecting real questions from test participants Respondent would be able provide answers that would allow success on the exam. According to Ms. Tomko during the tutoring session she attended, Respondent did not teach math strategies or formulas for completing the math section of the examination. Instead, Respondent offered questions (identified by the key phrases) and answers that the participants were to memorize. For example, if the question included something about a "toy in box" the answer was "13 feet." Actual examples of the test questions (or key phrases) along with the answers provided by Respondent are omitted here as they are confidential as a matter of law. See § 1008.23, Fla. Stat. (2008). Nevertheless, the key phrases and answers provided by Respondent were, in fact, actual questions from the math section of the examination. Respondent did not consider his assistance "cheating." Ms. Tomko, however, felt uncomfortable about memorizing the answers based upon the key phrases. According to Ms. Tomko, whose testimony has been deemed credible, Respondent instructed her to take the computer and not the written version of the test. Respondent told Ms. Tomko to memorize the card information previously described and to not finish too quickly in order to avoid suspicion. Ms. Tomko felt Respondent's words and behavior were contrary to her moral code and violated her responsibility as an educator to be a role model for students. Because she was offended, the evening after the Saturday tutor session with Respondent, Ms. Tomko contacted her mentor who then encouraged her to take the matter to their principal. The principal reported the case to the Department of Education and the instant administrative action ensued. The flash cards produced by Ms. Tomko contained real, "live" questions from the Florida Educational Certificate examination. All of the flash cards were constructed using the information from Respondent. DOE is charged with the responsibility of maintaining the examination questions and answers in a secure manner. The questions and answers are confidential and are not to be made public. The development of the examination questions cost over $300,000 and involved the efforts of DOE staff as well as private contractors who assist in the preparation of test questions. The examination is maintained in a locked vault with limited access to even DOE employees. Although test questions may be circulated indefinitely, different versions of the examination with different questions included are developed so that the same exact version is not repeatedly given. Nevertheless, by circulating the "key phrase" of a question with its answer, it would be possible for someone to circumvent the version differences among the exams since the questions themselves would remain the same. Once the instant case was referred to the DOE, Respondent became aware that he was under investigation. Respondent resigned his position with the Palm Beach County School District at the end of the 2006/2007 school year. Respondent's learning center was also closed near that time. Subsequently, Respondent left the country and currently resides in New Zealand. Respondent's claims regarding the closure of his learning center, the loss of records pertaining to the tutoring efforts made on behalf of CTA members, and other conflicting stories pertinent to this case result in the inescapable conclusion that Respondent was not forthright regarding his learning center and the materials and information he personally supplied to persons taking the teacher certification examination. In this case Respondent was charged with the following statutory violations: COUNT 1: Respondent is in violation of Section 1008.24(1), Florida Statutes, in that Respondent knowingly and willfully violated test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education or Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 1008.22. COUNT 2: Respondent is in violation of Section 1008.24(1)(a), Florida Statutes, in that Respondent gave examinees access to test questions prior to testing. COUNT 3: Respondent is in violation of Section 1008.24(1)(b), Florida Statutes, in that Respondent copied, reproduced, or used in any manner inconsistent with test security rules all or any portion of any secure test booklet. COUNT 4: Respondent is in violation of Section 1008.24(1)(d), Florida Statutes, in that Respondent made answer keys available to examinees. COUNT 5: Respondent is in violation of Section 1008.24(1)(g), Florida Statutes, in that Respondent participated in, directed, aided, counseled, assisted in, or encouraged any of the acts prohibited in this section. COUNT 6: Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 7: Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Additionally, Respondent was charged with the following rule violations: COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(b), Florida Administrative Code, in that Respondent revealed, copied or otherwise reproduced tests or individual test questions. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(e), Florida Administrative Code, in that Respondent provided answer keys to examinees. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(f), Florida Administrative Code, in that Respondent has participated in, directed, aided, counseled, assisted in, or encouraged an activity which could result in the inaccurate measurement or reporting of examinees' achievement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner and the Education Practices Commission enter a Final Order that suspends Respondent's teaching certificate for a period not to exceed one year, imposes an administrative fine in an amount not less than $2,000.00, and requires Respondent to take remedial instruction regarding the ethics applicable to educators in the State of Florida at his own expense before his certification can be reinstated. DONE AND ENTERED this 19th day of June, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Joan Stewart, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 422775 (graduate, rank 3), which expires on June 30, 1984. She is certified to teach biology and health education at the secondary (grades 7-12) school level. She is now employed by the Duval County School Board as a teacher at Douglas Anderson Middle School. (Testimony of Cobb; Prehearing Stipulation; P-4.) In January, 1974, Respondent pleaded guilty to a misdemeanor crime: the obtaining of public assistance by fraud in violation of Section 409.325, Florida Statutes. On January 28, 1974, the County Court of Duval County adjudged her guilty and placed her on probation. (P-1.) On November 23, 1976, the State Attorney of Duval County filed a criminal Information charging Respondent with petit larceny. Essentially, he alleged that, on November 21, 1976, she took merchandise belonging to Winn-Dixie Stores, Inc., without paying for it. On November 30, 1976, she entered a plea of nolo contendere to the petit larceny charge; she was adjudged guilty by the County Court of Duval County and sentenced to pay a $50 fine and court costs. (P-2.) In July, 1978, Respondent applied for a Florida teaching certificate. Section V of the application asked: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation"? By marking the appropriate space, she answered "No". (P-3.) She executed the application before a notary public on July 14, 1978; she expressly certified that: I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28 F.S.) I further certify that all information pertaining to this application is true and correct. Pursuant to her application, and in reliance upon the representation that she had never been arrested or involved in a crime, the Florida Department of Education issued her the teacher's certificate which she now holds. (Testimony of Lee; P-4.) At the time she completed her application, Respondent was aware of her criminal record and knew that she had been involved in at least one criminal offense--the 1976 offense of petit larceny. At hearing, she could not explain why she denied any past involvement in a criminal offense: Q.: [Counsel for Commissioner] : So, you knew [when you applied for a teacher's certificate] that you had been involved in a criminal history or had had an involvement with the law? A.: [Respondent]: In '76, yes. Q.: Okay, why didn't you put, "yes"? A.: I just didn't. Q.: But you . . . you knew you had been involved in a criminal offense. A.: In '76, yes. : So then why didn't you put, "yes"? A.: I just didn't. (Tr. 126.) It must be concluded that Respondent knowingly falsely represented to the Department of Education that she had no prior involvement in any criminal offense; that she misrepresented her criminal record in order to obtain a Florida teacher's certificate. (Testimony of Cobb; P-1, P-2, P-3.) Whether an applicant has ever been arrested or involved in a criminal offense is a material factor in the Department's evaluation of an application. An application may be denied if the applicant has committed acts which would justify suspension or revocation of a teaching certificate; it is likely-- although not certain--that, if the Department was aware of Respondent's past criminal record, her application would have been denied. (Testimony of Lee.) When Respondent submitted an application for employment with the Duval County School Board on July 24, 1978, she falsely answered "No" to the question: "Have you ever been arrested for any other offense other than minor traffic violations"? (Tr. 49.) She knew her answer was false 2/ . Had her criminal record been revealed, she would not have been recommended for employment. (Testimony of Epting, Cobb.) From October 7, 1978, to November 11, 1978, Respondent obtained unemployment compensation even though she was employed by the City of Jacksonville. She obtained the unemployment compensation by falsely indicating she was not employed. Consequently, a criminal Information was filed on April 29, 1980, by the State Attorney of Duval County charging her with unemployment compensation fraud. On June 4, 1980, she pleaded guilty to the charge; however, the Circuit Court of Duval County withheld adjudication, placed her on probation for one year, sentenced her to three weekends in county jail, and directed that she make complete restitution of the funds wrongfully collected. (P-6.) Respondent acknowledges that she knew her action was wrong, that she knew she was not entitled to the unemployment compensation funds. She explains that she was in financial need and behind on her house payment; she feels her actions were justified, under the circumstances, because Jacksonville (her employer) had promised that she would continue to be employed. Instead--after she had incurred long-term financial commitments--Jacksonville terminated her employment. She has now made full restitution for the wrongfully taken funds. (Testimony of Cobb.) Respondent has been an effective and satisfactory teacher during the 1980-1981 school year. Her ratings have been the highest possible; she has shown initiative and established rapport with her students. Her principal recently promoted her to chairman of the science/health department and recommended that she be reemployed for the 1981-1982 school term. (Testimony of Poppell; R-1.) Teachers in Duval County are held to a high standard of character and conduct. A teacher's involvement in crime would tend to violate those standards; parents would be unwilling to entrust the education of their children to such an individual. (Testimony of Poppell.) The Commissioner's proposed findings of fact have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's Teacher's Certificate, No. 422775. DONE AND RECOMMENDED this 3rd day of November, 1981, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1981
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Since April 19, 1991, Respondent has held Florida teaching certificate 637552, which covers the areas of business education (grades 6 through 12) and physical education (grades 6 through 12). The certificate is valid through June 30, 1996. Respondent is now, and has been at all times material to the instant case, including January 4, 1992, employed as a teacher by the Broward County School Board. On January 4, 1992, while operating her motor vehicle, Respondent was involved in an incident which led to her arrest and to the filing of an information against her in Broward County Circuit Court Case No. 92-2200CF10A. The information contained the following allegations, all of which were true: MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that [P]AULA DAWN REDO on the 4th day of January, A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant Tom McKane, a duly qualified and legally authorized officer of the City of Sunrise, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by striking the police car being drive[n] by Lieutenant Tom McKane with [s]aid automobile thereby placing Lieutenant Tom McKane in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT II AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant John George, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Lieutenant John George thereby placing John George in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT III AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Sergeant Gary Silvestri, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Sergeant Gary Silvestri thereby placing Sergeant Gary Silvestri in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT IV AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did then and there unlawfully, willfully and maliciously injure the property of another, to wit: a police car, property of City of Sunrise, by striking said police car with another automobile, the damage to the said property so injured being greater than two hundred dollars ($200.00) but less than one thousand dollars ($1,000.00), contrary to F.S. 806.13(1) and F.S. 806.13(2), COUNT V AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, while being the operator of a motor vehicle upon a street or highway, and having knowledge that she had been directed to stop the said motor vehicle by a duly authorized police officer, did unlawfully and willfully refuse or fail to stop in compliance with the said directive, contrary to F.S. 316.1935, COUNT VI AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did then and there operate a motor vehicle in willful and wanton disregard for the safety of persons or property in that said Defendant did drive at a high rate of speed disregarding a number of traffic control devices, contrary to F.S. 316.192. The incident was the subject of newspaper article published in the Metro Section of the Fort Lauderdale Sun-Sentinel on January 9, 1992. Because of the publicity surrounding the incident, Respondent was asked to transfer from the school at which she had been teaching before the incident (Western High School) to another school (Pines Middle School). Respondent agreed to the transfer, which was thereafter effectuated. She has remained on the instructional staff at Pines Middle School since the transfer. On August 8, 1994, after having discussed the matter with her attorney, Respondent entered a guilty plea to each of the counts of the information that had been filed against her in Broward County Circuit Court Case No. 92- 2200CF10A. Court records reflect that the plea was entered in Respondent's "best interest." 1/ Respondent was adjudicated guilty of the crimes alleged in Counts IV through VI of the information and sentenced to time served (three days in jail) for having committed these crimes. With respect to the crimes alleged in Counts I through III of the information, adjudication of guilt was withheld and Respondent was placed on two years probation. To date, Respondent has conducted herself in accordance with the terms and condition of her probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed these violations by suspending her teaching certificate for a period of 60 days and placing her on probation, subject to such terms and conditions as the Commission may deem appropriate, for a period of one year following the end of the suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of December, 1995. STUART M. LERNER 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 11th day of December, 1995.
Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
