The Issue The issues in this case are whether and how the Education Practices Commission (EPC) should discipline the Respondent on charges that she submitted another teacher’s work to earn an endorsement to her teacher certificate for English for Speakers of Other Languages (ESOL).
Findings Of Fact The Respondent, Kimberly Bank, holds Florida educator certificate 993098, which expires on June 30, 2018. She is certified in English and reading. During the 2012-2013 school year, she was employed by the OCPS as a reading teacher at Oakridge High School. In January 2013, the Respondent and a fellow Oakridge reading teacher named Charnetta Starr enrolled in an online course through CaseNEX to earn credit towards an ESOL endorsement to their teaching credentials. ESOL endorsements were required for their jobs. Ms. Starr completed all required course work, including participation in online discussions, journal entries, and workbook submissions, and earned credit for the course. The Respondent began the CaseNEX class, but stopped participating after a few weeks and was told by the course facilitator that she was being withdrawn from the class. The course ended on April 24, 2013. On May 2, 2013, the Respondent emailed Ms. Starr to ask her to provide the Respondent with Ms. Starr’s course work, which Ms. Starr emailed to her. The Respondent enrolled to take the CaseNEX class again during the summer of 2013. She copied Ms. Starr’s journal entries and workbook submissions from the January course and submitted them verbatim as her own work for course credit during the summer course. The submissions struck the course facilitator as being very familiar, and her investigation revealed that they were exact copies of Ms. Starr’s submissions. The facilitator reported this to her supervisor. The Respondent was again withdrawn from the class, this time for violating course prohibitions against plagiarism. The Respondent and Ms. Starr were reported to OCPS, which reprimanded them and suspended them for three days. The Petitioner initiated separate, but virtually identical administrative cases to discipline the educator certificates of both the Respondent and Ms. Starr. The Petitioner agreed to settle Ms. Starr’s case for a reprimand and $750 fine, and the EPC accepted the settlement, because Ms. Starr was not perceived to have used the Respondent’s work product, but only to have allowed her work product to be used by the Respondent. Ms. Starr testified that she agreed to the settlement but actually does not believe her actions were wrong or violations because she did not know the Respondent was going to plagiarize her work and submit it for credit. Because the Respondent was perceived to have used Ms. Starr’s work product and submitted it as her own for CaseNEX course credit, the Respondent’s administrative case proceeded, with the Petitioner seeking to fine her, suspend her educator certificate, and place her on probation. The Respondent contends that she and Ms. Starr collaborated on all of Ms. Starr’s journal entry and workbook submissions with the intention that each would submit the identical work as their own. Initially, the Respondent contended that this was permissible “collaboration” under the CaseNEX honor code and course requirements. Later in the hearing, the Respondent seemed to concede that it was against the honor code and the course’s requirement that each teacher taking the course had to submit his or her own original work. At that point in the proceeding, she seemed to be taking the position that her conduct mirrored Ms. Starr’s and that her discipline should be the same (i.e., that she should not be suspended). In her proposed recommended order, the Respondent again took the position that her conduct was permissible collaboration under the CaseNEX honor code and the course’s requirements and that no discipline should be imposed. The evidence was clear and convincing that the work submitted by the Respondent for credit in the summer 2013 CaseNEX course was not the product of collaboration between her and Ms. Starr. The Respondent testified that she and Ms. Starr collaborated by jointly doing work for the course from the very beginning of the January 2013 course with the intention of each submitting their joint work product for credit. Yet, it is obvious that the Respondent’s work submissions prior to her withdrawal from the January 2013 course were not the same as Ms. Starr’s. The Respondent testified that she collaborated with Ms. Starr throughout the January 2013 CaseNEX course. She testified that they produced joint work for them both to submit for credit in the course. She testified that after she was withdrawn from the January course, she continued to collaborate and produce joint work product with Ms. Starr, and that it was understood that the Respondent would submit the work as her own when she retook the course. The Respondent testified that she misplaced and lost her thumb-drive with a digital copy of the joint work product and asked Ms. Starr to send her a copy as an attachment to an email, which Ms. Starr did on May 2, 2013. Ms. Starr testified that the Respondent emailed her to ask for a copy of Ms. Starr’s work product from the January CaseNEX course and that Ms. Starr complied on May 2, 2013. Ms. Starr testified that this was her own personal work product, not joint work product. She denied knowing that the Respondent intended to plagiarize and submit it as her own. She testified persuasively that there were other legitimate uses the Respondent could have made of the work besides plagiarizing it. Where there is conflict between the Respondent’s testimony and Ms. Starr’s testimony, the Respondent’s is rejected as being false, and Ms. Starr’s is credited as being the truth. The evidence was clear and convincing that Ms. Starr did her own work throughout the January 2013 course. None of the work submitted by Ms. Starr for credit in the January 2013 course was produced jointly with the Respondent. If the Respondent were telling the truth, and she and Ms. Starr collaborated on their work submissions, her early submissions for the January CaseNEX course would have been identical to Ms. Starr’s. They were not. On the other hand, some of her submissions during the course she took during the summer of 2013 were identical to Ms. Starr’s submissions. For this and other reasons, Ms. Starr’s testimony was more credible than the Respondent’s when their testimony was in conflict. The Respondent attempted to attack Ms. Starr’s credibility by use of a screen shot of an incomplete and out-of- context cell phone text message exchange between them on June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the Respondent: “OK. Did you sign up for the online modules for the $1000? Let’s start working on them so we can get paid on 7/31.” The Respondent answered: “Girl I have started. The kids do 2 hrs in the computer lab and I do the modules. They are easy but looooooong!” Ms. Starr replied: “OK. Send me any info you have for it please.” The Respondent texted: “You just watch a video and answer 2 multiple choice questions. Skip through the video and go to the questions. You can try as much as you want. There”. There was no evidence as to what preceded or followed the exchange. When Ms. Starr was confronted with the text exchange on cross-examination, she understood that it was being presented to impeach her testimony that the Respondent contacted her about providing the Respondent with their supposedly joint work product from the January CaseNEX course. In her haste to vehemently defend herself, Ms. Starr failed to realize that the text message exchange actually had nothing to do with her providing the Respondent with her work product from the January course, but was about a different course they were taking to earn bonus pay, and she testified incorrectly that it was the Respondent who initiated the text message exchange that was in evidence. The cross-examination failed to impeach the essence of Ms. Starr’s testimony. The evidence was that the Respondent is a good teacher. She performed satisfactorily both at Oakridge before the CaseNEX cheating incident and at Conway Middle School after it. Nonetheless, it is clear that her effectiveness as an employee of the school district was seriously impaired by her plagiarism and cheating on the June 2013 CaseNEX course. For one thing, she was reprimanded and suspended for three days. For another, she did not get the ESOL endorsement that was required for the job she held at Oakridge. Since the Respondent was guilty of plagiarism, and Ms. Starr was less culpable, it is reasonable for the Respondent’s discipline to be harsher than Ms. Starr’s. A period of suspension is reasonable. Based on the EPC records of discipline imposed in similar cases that were officially recognized in this case, it appears that it has been the practice of the EPC to impose a one-year suspension, in addition to a fine, probation, and a requirement to take a college-level course in ethics, for a teacher who admits to plagiarism and cheating in a CaseNEX ESOL endorsement course. In the Respondent’s case, a longer period of suspension is warranted due to the Respondent’s dispute of the charges and her false testimony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order finding the Respondent guilty as charged, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the EPC, requiring her to take a college-level course in ethics under terms and conditions determined by the EPC, and imposing a fine in the amount of $750. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2016.
The Issue The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.
Findings Of Fact Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact are accepted in substance. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire 411 East College Avenue Tallahassee, Florida 32301 Joseph Egan, Jr., Esquire P.O. Box 2231 Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.
Findings Of Fact Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine regular hours, two HIV/AIDS hours, and two risk management hours. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.” On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval." On September 11, 2001, Ms. Baxley sent a letter to Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/ The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course. The Notice of Intent to Deny states the grounds for denial: As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2- 13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of continuing education, to require live and in-person classroom hours. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another. Dr. Brown noted that many states impose restrictions on the number of online hours that may be taken or on the type of licensees who are eligible to receive credit. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner’s application for continuing education course approval.2/ DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.
The Issue Whether or not Ossie L. Gardner, the Respondent, on or about August 2, 1977, in Duval County, Florida, did expose his sexual organs by masturbation inside a pornographic booth in the presence of a plain clothes city vice detective at a Jacksonville movie theater, and further, whether or not Ossie L. Gardner plead guilty to the lesser charge of "indecent exposure" and was fined 550.00 plus court costs, all in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 60-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example to students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. Whether or not Ossie L. Gardner, the Respondent, on or about June 29, 1967, in Leon County, Florida, did solicit for a lewd and lascivious act by an offer to commit and engage in lewdness, to wit, fellatio with an employee of the Tallahassee Police Department, in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example for students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect.
Findings Of Fact This cause comes on for consideration based upon the Petition for Revocation of Teacher's Certificate filed by the Petitioner, Professional Practices Council, against Ossie L. Gardner, the Respondent. At the commencement of the hearing, the parties entered into several stipulations. The first of those stipulations was that the statements in the Petition for Revocation of Teacher's, Certificate found under the title "Jurisdictional Matters" are agreed to and established as facts in this cause; therefore, with the recitation of those facts in the following quotation, those facts under the title "Jurisdictional Matters" are hereby established. "JURISDICTIONAL MATTERS" "OSSIE L. GARDNER is the holder of Post-Graduate, Rank II Florida teaching certificate number 181441, covering Math, Emotionally Disturbed and Junior College, which is valid until June 30, 1993." "OSSIE L. GARDNER has been employed as a math/science teacher at the Juvenile Shelter in Jacksonville, Florida. He holds a tenure contract in Duval County where he continues to teach at this time. The Professional Practices Council received a report from Buford H. Galloway, Director of Evaluation and Development, indicating that OSSIE L. GARDNER was charged with Exposure of Sexual Organs by Masturbation on August 2, 1977. Pursuant to this report and under the authority contained in Section 231.28, Florida Statutes, staff of the Department of Education conducted a professional inquiry into the matter and on February 13, 1978 made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that OSSIE L. GARDNER is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. The Commissioner of Education found probable cause on February 13, 1978, and directed the filing of this petition. The Petitioner has authority under Section 6A-4.37, Rules of the State Board of Education to file this Petition. The State Board of Education has authority under action 231.28, Florida Statutes to revoke the teaching certificate of OSSIE L. GARDNER." At the commencement of the hearing, the parties further agreed to stipulate to the introduction of certain items of evidence without the necessity for authentication of those documents. Finally, the parties agreed to stipulate to the introduction of the deposition of Otha Lee Wooden, as a late-filed exhibit, to be used by the undersigned in the same way as the testimony offered in the course of the hearing. The facts in the case revealed that on August 2, 1977, between 3:30 and 4:00 P.M., Officer J. W. Lockley of the Jacksonville Sheriff's Office, Duval County, Florida, was making a routine check of the J & K Adult Theater in the 400 block of Main Street, Jacksonville, Florida. This theater contains material of sexual content. Among other features of the theater are certain booths located behind a curtained area, which is separated from the other part of the establishment. Those booths have coin-operated projectors which allow for the display of preselected film clips which have been obtained from the proprietor. The booths are approximately four feet by seven or eight feet in dimension and the patron may stand up or in some cases may sit down in the booths. The booths have a further feature which is a door which has instructions that it must be closed during the course of the film being shown. On the date in question, Officer Lockley went into the area of the theater which contains the booths and observed the Respondent, Ossie L. Gardner, in Booth No. 8. At that time, the door to the booth was open and Gardner was observed with his sexual organs exposed, and was observed stroking his exposed penis with his hand in an upward and downward motion. A film was playing in the booth, being projected on a small screen. The film depicted sexual activity between male participants, specifically fellatio. Officer Lockley passed up the aisle from where he had observed this activity on the part of the Respondent and then returned to the area of the booth in which Mr. Gardner was located. At that point, Gardner continued to stroke his penis and to look and obtain eye contact with Lockley and then to look down at his penis. Lockley subsequently arrested Gardner for exposure of sexual organs, in violation of Section 80003, Florida Statutes. Gardner later plead guilty to a municipal ordinance violation of indecent exposure, City of Jacksonville Ordinance No. 330.124. For this violation, Gardner was given a judgment and sentence of a $50.00 fine plus $2.00 court costs. In the course of the arrest, the Respondent indicated to Officer Lockley that he had bean arrested for similar conduct before in a matter in Tallahassee, Florida. This incident pertained to a situation which occurred in the Greyhound Bus Station in Tallahassee, Florida, on June 29, 1967. At that time, C. A. McMahan, an employee of the State Prison Camp, Division of Corrections, Tallahassee, Florida, was working as an agent with the Tallahassee Police Department to assist in the investigation of vice activities. In particular, McMahan was assisting in the investigation of alleged homosexual activities in the men's restroom of the Greyhound Bus Station. On the date in question at around 10:00 P.M., McMahan went into the men's restroom and entered one of the closed-in stalls in which a commode was located; Gardner went to one of the urinals in the bathroom facility. Before entering the stall, McMahan observed Gardner masturbating at the urinal. McMahan then closed the door to the stall and was seated in the area of the commode when Gardner moved into the area next to McMahan's stall and continued to masturbate as observed through a hole in the wall between the stall in which McMahan was located and the area where Gardner was positioned. After a period of three or four minutes, Gardner stuck his penis through a hole in the partition wall into the area where McMahan was located. At that point, McMahan left to tell Captain Burl S. Peacock of the Tallahassee Police Department, Tallahassee, Florida, of his observation. Both of these individuals went back into the restroom, at which point Gardner was arrested. Gardner, after being advised of his constitutional right to remain silent, admitted that he had gone to the restroom with the thought that he could get some "sexual relief", and further admitted putting his penis through the hole in the partition for the purpose of getting that "sexual relief." Gardner also admitted to Peacock that he had been involved in homosexual activities as early as the age of 18 and had performed sodomy on one occasion and had been a passive partner in homosexual activities at other times. Subsequent to the June 29, 1967, arrest, Gardner received psychiatric attention for his problem. For the incidents related in the matters of August 2, 1977, and June 29, 1967, the Respondent has been charged with violations of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 6B-5, Florida Administrative Code; in that his conduct is alleged to be inconsistent with good morals and the public conscience; not a proper example for students and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. A review of those stated sections of the Florida Statutes and the The Florida Administrative Code reveals that any substantive allegations cognizable through this complaint are found in provision of Section 231.09(2), Florida Statutes, and Section 231.28(1), Florida Statutes, only. Therefore, no further reference will be made to Section 6A- 4.37, 60-1 and 60-5, Florida Administrative Code. Section 231.09(2), Florida Statutes, reads as follows: "(2) EXAMPLE FOR PUPILS.--Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." The conduct which has been established in the facts pertaining to the incidents of August 2, 1977, and June 29, 1967, involving the exposure of the Respondent's sexual organs and the surrounding activities in those incidents, is conduct which shows that the Respondent is not laboring faithfully and earnestly for the advancement of the pupils in their deportment and morals' in violation of Section 231.09(2), Florida Statutes. No other violation of that provision has been established. Section 231.28(1), Florida Statutes, together with the preamble to the overall Section 231.28, Florida Statutes, reads as follows: "231.28 Suspension or revocation of certificates. The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teach- ing certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided: (1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seri- ously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed." Again, the acts of August 2, 1977, and June 29, 1967, involving the exposure by the Respondent of his sexual organs and the facts therein, show that the Respondent has been guilty of gross immorality or an act involving moral turpitude. The only other possible violation under Section 231.28(1), Florida Statutes, which might be argued is the allegation of possible conduct which seriously reduces the Respondent's effectiveness as an employee of the school board. The sole testimony offered in the course of the hearing which would address that substantive accusation would be that testimony found in the deposition of Otha Lee Wooden. A review of that testimony indicates that the opinion of the principal of the school in which the Respondent teaches, to wit, the school No. 182, Juvenile Shelter School, is to the effect that the facts in these cases are not known to other persons in the school. Consequently, there is no testimony to indicate that there would be any loss of effectiveness if Mr. Gardner continued to teach. No other violations were alleged or proven.
Recommendation In the course of the hearing, matters in mitigation and aggravation were considered. In that presentation, it was demonstrated that the Respondent is a teacher with an outstanding background, as revealed by his personnel file, which is the Respondent's Exhibit No. 8 admitted into evidence. It was also established that the Respondent is a man of distinguished service to his country through service in the United States Army, as established in the Respondent's Exhibits Nos. 1 through 7. Further, it was established that absent these incidents alluded to in the course of this Recommended Order, the Respondent has not been the subject of disciplinary action by the Petitioner on any other occasion. Nonetheless, in consideration of the nature of his profession, it is recommended that the Respondent, Ossie L. Gardner, have his Post-Graduate Rank II Florida Teaching Certificate No. 181441 REVOKED for a period of three (3) years. DONE and ENTERED this 15th day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Mail: 530 Carlton Building 101 Collins Building Tallahassee, Florida 32399-1550 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida Charles E. Grabill, Jr., Esquire 168 Blanding Boulevard, Suite 2 Orange Park, Florida 32073 Mr. M. Juhan Mixon Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32304
The Issue Whether respondent's teaching certificate should be revoked on the grounds that he fraudulently obtained a higher ranking teaching certificate and thereby committed an act of gross immorality and moral turpitude.
Findings Of Fact I. Respondent's Wrongdoing Respondent, age 33, taught school in Dade County for over six years. From 1969-1972, he taught physical education at South Miami Junior High School; he then resigned and did not return to teaching until 1978, when he became a substitute teacher at Brownsville Junior High School. Shortly thereafter, he was hired in a full-time position at Brownsville Junior High, where he remained until he resigned in July, 1980. His principal at Brownsville considered him a "very good teacher," (Tr. 55) as "one of the teachers who gave his very best." (Tr. 56.) (Testimony of Carstarphen, Oden; P-4.) Respondent attended high school and junior college in Pensacola. From 1966-1969, he attended Bethune Cookman College in Daytona Beach and earned a bachelor of science degree. His postgraduate training consists of one course he took at Nova University to secure a science certificate. (Testimony of Carstarphen; P-4.) During 1978, Respondent met Eugene Sutton ("Sutton"), an employee of Florida A & M University ("Florida A & M") located in Tallahassee, Florida. One month after their initial meeting, Respondent agreed to pay Sutton approximately $2,800 for a false transcript from Florida A & M purporting to award him a master's degree in elementary education. During the ensuing months, each party performed his part of the agreement: Respondent paid Sutton the $2,800, and Sutton furnished him a false transcript. The transcript, dated April 6, 1979, indicated that he had successfully completed various postgraduate courses at Florida A & M from 1976-1978 and had been awarded a master of education degree; the transcript was a forgery. He never attended Florida A & M University. (Testimony of Carstarphen; P-4.) Since 1969, Respondent had held a rank III (graduate) teaching certificate issued by the Florida Department of Education. A postgraduate degree qualifies a teacher for a higher ranking (rank II, post graduate) teaching certificate. So, in early 1979, Respondent filed an application for the higher ranking certificate; he attached to the application a copy of the fake master's degree transcript from Florida A & M and signed, under oath, the following notarization: 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 fraud- ulent means. (Section 231.28 F.S.) I fur- ther certify that all information pertaining to this application is true and correct. (Testimony of Carstarphen; P-4.) On June 28, 1979, the Department of Education--relying on the false transcript--approved his application and issued him a rank II, postgraduate teaching certificate, No. 257364. He then applied to his employer, the School Board, for a salary increase based on his postgraduate teaching certificate. His application was routinely granted. During the ensuing 12 months, the School Board paid him an additional $4,047.55 because of his higher ranking postgraduate teaching certificate. (Testimony of Carstarphen Gray; P-5, P-6, P- 8.) In mid-1980, Respondent's wrongdoing was discovered. On October 20, 1980, he pleaded guilty to criminal charges: forgery and grand theft-second degree (two counts). The Circuit Court of Dade County placed him on three years' probation and directed that restitution be made to the School Board. (P- 7.) Respondent has complied with the terms of his probation. He is now repaying, by regular payments, the money which he wrongfully obtained from the School Board. (Testimony of Carstarphen.) II. Appropriate Penalty: Suspension or Permanent Revocation The Respondent contends that his wrongful acts warrant suspension, not revocation of his teaching certificate. In support of that contention, he offered the following testimony: The reason I'm asking for this is that this was my chosen profession, and I think that I am good at it. I realize the fact that I made a tragic mistake that I'm sure would never happen again. It was a circumstance that I feel that someone would have to be involved in to really understand what actually happened. But I could only say that I'm requesting a suspension as opposed to a complete termi- nation so that I can pursue what I've been trained to do and, again, that I do well. (Tr. 48-49.) No evidence was presented which establishes that Respondent's wrongful acts have seriously reduced his effectiveness as a classroom teacher. Respondent has never before been convicted of a crime; neither has he been involved in any prior disciplinary infraction. (Testimony of Carstarphen.) Respondent did not fully cooperate with law enforcement officers investigating his conduct and the fake Florida A & M transcripts. For example, he refused to divulge the name of a friend--even though he did not know whether that person was involved in the fraudulent transcript scheme. (Testimony of McAllister, Jacobson, Carstarphen.) Respondent knowingly submitted the false Florida A & M transcript to the Department of Education; his motive was monetary gain. After filing the higher ranking postgraduate teaching certificate with his employer, he received increased salary payments for approximately one year. (Testimony of Carstarphen, McAllister, Jacobson, Gray.) III. Proposed Findings of Fact Submitted by the Parties The findings of fact proposed by the parties 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 teaching certificate, No. 257364. DONE AND RECOMMENDED this 23rd day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1981.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985. The last status of Mr. Hartman's license was involuntarily inactive. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice, Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license. As a prerequisite for the renewal of his license, Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education, Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive quiz after completing each chapter and, for the total book, had only two incorrect answers. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
