00-002765PL Tom Gallagher, As Commissioner Of Education vs. Margaret Ann Mitchell
 Status: Closed
Recommended Order on Monday, March 5, 2001.


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Summary: Teacher`s criminal conviction on charges of violating test security warrants revocation of teaching certificate.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8TOM GALLAGHER, AS COMMISSIONER )

13OF EDUCATION, )

16)

17Petitioner, )

19)

20vs. ) Case No. 00-2765PL

25)

26MARGARET ANN MITCHELL, )

30)

31Respondent. )

33)

34RECOMMENDED ORDER

36Pursuant to notice, a formal hearing was held in this case

47on November 30, 2000, in Miami, Florida, before Florence Snyder

57Rivas, a duly-designated Administrative Law Judge of the

65Division of Administrative Hearings.

69APPEARANCES

70For Petitioner : Lisa N. Pearson, Esquire

77United Teachers of Dade

812929 Southwest Third Avenue

85Coral Way

87Miami, Florida 33129

90For Respondent : Charles T. Whitelock, Esquire

97Whitelock & Associates, P.A.

101300 Southeast 13th Street

105Fort Lauderdale, Florida 33316

109STATEMENT OF THE ISSUES

113At issue in this proceeding is whether Respondent committed

122the offenses set forth in the Administrative Complaint dated

131April 4, 2000, and, if so, what disciplinary action should be

142taken against her.

145PRELIMINARY STATEMENT

147On April 4, 2000, Petitioner, Tom Gallagher, as

155Commissioner of Education (the Commissioner) filed an

162Administrative Complaint against Margaret Ann Mitchell

168(Mitchell) seeking to revoke her Florida teaching certificate.

176Mitchell filed a timely request for a hearing to challenge

186the proposed discipline, and the matter was referred to the

196Division of Administrative Hearings (DOAH) for the assignment of

205an administrative law judge to conduct a formal hearing.

214The Administrative Complaint charged that on or about

222October 4, 1997, Respondent, while serving as an examination

231proctor, unlawfully copied the mathematics portion of the 1997-

2401998 High School Competency Test (HSCT), and distributed it to

250several other teachers before the test was administered.

258The allegations against Mitchell in connection with the

266HSCT spawned three separate legal proceedings, of which this is

276the last.

278In June 1999, Mitchell was convicted by a Miami-Dade County

288jury on charges of violating Section 228.301, Florida Statutes,

297relating to test security.

301Additionally, the Miami Dade County School Board sought to

310terminate Mitchell's employment as a teacher. The termination

318was sustained in Miami Dade County School Board v. Margaret B.

329(sic) Mitchell , DOAH Case No. 99-0753. The Recommended Order

338was issued December 28, 1999. In due course a Final Order

349affirming same in toto was issued by the School Board and filed

361with DOAH on February 15, 2000.

367In this action, the Commissioner seeks to revoke Mitchell's

376Florida teaching certificate.

379The Commissioner alleged that the events giving rise to

388Mitchell's criminal conviction and employment termination

394constitute five separate statutory violations and one rule

402violation, as follows:

405Count 1 : The allegations of misconduct

412set forth herein are in violation of Section

420231.28(1)(c), Florida Statutes, in that

425Respondent has been guilty of gross

431immorality or an act involving moral

437turpitude.

438Count 2 : The allegations of misconduct

445set forth herein are in violation of Section

453231.28(1)(e), Florida Statutes, in that

458Respondent has been convicted of a

464misdemeanor, felony, or other criminal

469charge, other than a minor traffic

475violation.

476Count 3 : The allegations of misconduct

483set forth herein are in violation of Section

491231.28(1)(f), Florida Statutes, in that

496Respondent, upon investigation, has been

501found guilty of personal conduct which

507seriously reduces her effectiveness as an

513employee of the school board.

518Count 4 : The allegations of misconduct

525set forth herein are in violation of Section

533231.28(1)(i), Florida Statutes, in that

538Respondent has violated the Principles of

544Professional Conduct for the Education

549Profession in Florida prescribed by State

555Board of Education.

558Count 5 : Section 231.28(2), Florida

564Statutes, provides that the plea of guilty

571in any court or a decision of guilty by any

581court is prima facie proof of grounds for

589the revocation of the certificate.

594Count 6 : The allegations of misconduct

601set forth herein are in violation of Rule

6096B-1.006(5)(a), Florida Administrative Code,

613in that Respondent has failed to maintain

620honesty in all professional dealings.

625At final hearing, Petitioner offered Exhibits 1, 2, and 4,

635which were accepted into evidence. Respondent testified in her

644own behalf, and presented the testimony of Mana Oken, the test

655administrator for the HSCT at issue in these proceedings.

664The one-volume Transcript of the hearing was filed

672January 8, 2001, and the parties requested and were granted

682leave to file proposed recommended orders by January 22, 2001.

692The proposed recommended orders were timely filed and have been

702carefully considered in the preparation of this recommended

710order.

711FINDINGS OF FACT

7141. At all times material hereto, the Commissioner is

723responsible for providing public, primary, secondary, and adult

731education teaching certificates in the State of Florida.

7392. At all times material hereto, Mitchell was employed by

749the Miami-Dade County School Board and was a teaching instructor

759assigned to Barbara Goleman Senior High School (BGSHS).

7673. At all times material to this case, an examination

777known as the High School Competency Test (HSCT) was required for

788students to qualify for a regular high school diploma pursuant

798to Section 229.57(3)(c), Florida Statutes.

8034. The HSCT is a secured test within the meaning of

814Section 228.301, Florida Statutes. That section provides, in

822pertinent part, that it is unlawful for anyone to knowingly and

833willfully violate test security rules adopted by the State's

842Board of Education for mandatory tests administered by school

851districts pursuant to Section 229.57, Florida Statutes. It is

860also unlawful to copy, reproduce, or use any portion of any

871secured test booklet in any manner inconsistent with test

880security rules. Id.

8835. A violation of Section 228.301, Florida Statutes, is a

893misdemeanor of the first degree, punishable by a fine of not

904more than $1,000 or imprisonment for not more than 90 days, or

917both.

9186. The Department of Education has adopted Rule 6A-10.042,

927Florida Administrative Code, which requires, inter alia , that

935tests implemented in accordance with the requirements of Section

944229.57, Florida Statutes, be maintained and administered in a

953secure manner such that the integrity of the test shall be

964preserved and that tests or individual test questions shall not

974be revealed, copied, or otherwise reproduced by persons who are

984involved in the administration, proctoring, or scoring of any

993test.

9947. On Saturday, October 4, 1997, Mitche ll was one of the

1006teachers proctoring the HSCT at BGSHS. On that date, while the

1017communications portion of the HSCT was being administered,

1025Mitchell unlawfully gained access to the mathematics portion of

1034the examination, which was to have been administered at a later

1045date.

10468. Shortly thereafter, and before the mathematics portion

1054of the HSCT was to be administered, Mitchell sent an e-mail

1065message to four out of approximately ten fellow BGSHS math

1075teachers, advising them that they would find a "blue gift" in

1086their respective school mail boxes. Each of these instructors,

1095unlike those who did not receive a "blue gift," were friendly

1106with Mitchell, and ate lunch with her on a regular basis.

11179. Thereafter, Mitchell in fact provided a blue disk to

1127each of the four teachers to whom the e-mail was directed. On

1139each disk were many of the actual HSCT mathematics questions

1149unlawfully obtained by Mitchell.

115310. The first of the teachers to review the contents of

1164the "blue gift" immediately suspected that Mitchell had engaged

1173in a criminal violation of test security law, and reported her

1184suspicions to BGSHS' principal. Following investigations by

1191appropriate authorities and the panoply of due process

1199protections appropriate to each forum, Mitchell was convicted on

1208the misdemeanor charge of having knowingly and willfully

1216breached the security of the HSCT, and her employment as a

1227Miami-Dade County school teacher was terminated.

123311. The criminal case, State of Florida v. Margaret

1242Mitchell , Case Number 04586-W, was tried to a jury before

1252Honorable Caryn Canner Schwartz in the County Court in and for

1263Miami-Dade County, Florida, in June 1999.

126912. On June 28, 1999, following a week-long trial, the

1279jury returned a verdict of guilty against Mitchell for her

1289violation of Section 228.301, Florida Statutes.

129513. Mitchell does not dispute that the foregoing criminal

1304and administrative proceedings were conducted, and that the

1312charges against her in each case were sustained.

132014. Mitchell did not seek appellate relief with respect to

1330either proceeding.

133215. Mitchell maintains here, as in both of the previous

1342proceedings, that she did not intend to violate test security

1352procedures. She claims that she innocently copied and

1360distributed what she thought was an authorized practice test.

136916. Mitchell did not offer her innocent mistake defense to

1379anyone until two months after her crime was revealed.

1388Mitchell's claims of innocence are inconsistent with her conduct

1397and demeanor when she was first confronted with the allegations

1407against her, as well as the known facts and circumstances

1417surrounding the HSCT security breach.

142217. In addition, Mitchell's testimony at final hearing in

1431this proceeding with respect to her innocent mistake defense is

1441unworthy of belief. Mitchell's demeanor while testifying was

1449deceptive, and her testimony was inconsistent with the known

1458facts and circumstances surrounding the HSCT security breach.

146618. At Mitchell's criminal sentencing, Judge Schwartz

1473noted that the jury's guilty verdict was supported by evidence

1483which was "overwhelming" and assessed a fine of $1,000, court

1494costs, and ordered Mitchell to serve 90 days house arrest and

1505six months probation.

150819. On February 10, 1999, the Miami-Dade County School

1517Board initiated dismissal proceedings against Mitchell and, on

1525December 28, 1999, Administrative Law Judge William J. Kendrick

1534sustained the dismissal. In his Recommended Order, Judge

1542Kendrick concluded, in pertinent part:

1547Here, it should not be subject to debate

1555that Respondent’s act of knowingly and

1561willfully reproducing the mathematics

1565portion of the 1997 HSCT and providing

1572copies of that test to her fellow teachers

1580constituted an act of immorality and

1586misconduct in office; that such conduct was

1593sufficiently notorious to bring Respondent

1598into public disgrace or disrespect and

1604impair her service in the community; and

1611that such conduct was so serious as to

1619impair her effectiveness in the school

1625system. It should also not be subject to

1633debate that, upon conviction of the crime

1640for breach of test security, Respondent, as

1647an educator, was also shown to have been

1655convicted of a crime involving moral

1661turpitude.

1662(P.4 at 10-11.)

1665CONCLUSIONS OF LAW

166820. The Division of Administrative Hearings has

1675jurisdiction over the subject matter of this proceeding and the

1685parties thereto pursuant to Sections 120.569 and 120.57, Florida

1694Statutes.

169521. The Commissioner and the State of Florida Education

1704Practices Commission has jurisdiction over the parties and the

1713subject matter of this proceeding pursuant to Section 231.262

1722and 231.28, Florida Statutes, and Rule 6B-1.006, Florida

1730Administrative Code, Principles of Professional Conduct for the

1738Education Professional in Florida.

174222. The State of Florida Education Practices Commission

1750has authority to seek sanctions against Respondent as set forth

1760in Sections 231.262 and 231.28, Florida Statutes.

176723. Petitioner in this matter seeks disciplinary sanctions

1775against Respondent’s teaching certificate pursuant to Section

1782231.262(6) and 231.28, Florida Statutes, and Rule 6B-1.006,

1790Florida Administrative Code, Principles of Professional Conduct

1797for the Education Professional in Florida, for the statutory and

1807rule violations as set forth in Petitioner’s Administrative

1815Complaint.

181624. Petitioner bears the burden of proof in t his

1826proceeding by clear and convincing evidence. Ferris v.

1834Turlington , 510 So. 2d 292 (Fla. 1997).

184125. The truth of the allegations of Count II of the

1852Administrative Complaint has been conclusively established in

1859that Mitchell stands convicted of a misdemeanor, or other

1868criminal charge, other than a minor traffic violation, in

1877violation of Section 231.28(1)(e), Florida Statutes.

188326. The truth of the allegations of Count V of the

1894Administrative Complaint has also been conclusively established

1901in that Mitchell was subject to a decision of guilty by a Court,

1914which decision constitutes prima facie proof of grounds for the

1924revocation of the Respondent’s certificate in accordance with

1932Section 231.28(2), Florida Statutes.

193627. Mitchell does not dispute the fact of her criminal

1946conviction. Instead she argues that the undersigned, upon

1954review of the transcripts of the criminal proceeding, should

1963conclude that the criminal conviction was unwarranted and should

1972be rejected in these proceedings.

197728. There is no authority for the proposition that the

1987undersigned may second guess the jury's judgment. However,

1995having accepted Mitchell's invitation to revisit the facts and

2004circumstances as demonstrated in the criminal and administrative

2012proceeding transcripts, the undersigned concurs that the

2019evidence in each of those proceedings supported, by at least

2029clear and convincing evidence, a finding that Mitchell was

2038guilty of knowingly and willfully violating the security of the

20481997 HSCT.

205029. Mitchell's violation of Section 231.28(2), Florida

2057Statutes, is, standing alone, more than sufficient in and of

2067itself to support the revocation of Mitchell's teaching

2075certificate.

207630. In the context of these proceedings, Counts I, III,

2086IV, and VI are subsumed within the undisputed and dispositive

2096fact of Mitchell's criminal conviction.

210131. Based upon the undisputed evidence supporting the

2109allegations of Counts II and V, it is entirely appropriate to

2120impose the ultimate sanction pursuant to the authority provided

2129in Sections 231.262(6) and 231.28(1), Florida Statutes, the

2137revocation of Mitchell's teaching certificate.

2142RECOMMENDATION

2143Based on the foregoing Findings of Fact and Conclusions of

2153Law, it is RECOMMENDED that a Final Order be entered revoking

2164the teaching certificate of the Respondent.

2170DONE AND ENTERED this 5th day of March, 2001, in

2180Tallahassee, Leon County, Florida.

2184___________________________________

2185FLORENCE SNYDER RIVAS

2188Administrative Law Judge

2191Division of Administrative Hearings

2195The DeSoto Building

21981230 Apalachee Parkway

2201Tallahassee, Florida 32399-3060

2204(850) 488- 9675 SUNCOM 278-9675

2209Fax Filing (850) 921-6847

2213www.doah.state.fl.us

2214Filed with the Clerk of the

2220Division of Administrative Hearings

2224this 5th day of March, 2001.

2230COPIES FURNISHED:

2232Lisa N. Pearson, Esquire

2236United Teachers of Dade

22402929 Southwest Third Avenue

2244Coral Way

2246Miami, Florida 33129

2249Kathleen M. Richards, Executive Director

2254Education Practices Commission

2257Department of Education

2260325 West Gaines Street, Room 224-E

2266Tallahassee, Florida 32399-0400

2269Charles T. Whitelock, Esquire

2273Whitelock & Associates, P.A.

2277300 Southeast 13th Street

2281Fort Lauderdale, Florida 33316

2285Jerry W. Whittier, Chief

2289Bureau of Educator Standards

2293Department of Education

2296325 West Gaines Street, Suite 224-E

2302Tallahassee, Florida 32399-0400

2305James A. Robinson, General Counsel

2310Department of Education

2313The Capitol, Suite 1701

2317Tallahassee, Florida 32399-0400

2320NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2326All parties have the right to submit written exceptions within

233615 days from the date of this Recommended Order. Any exceptions

2347to this Recommended Order should be filed with the agency that

2358will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/14/2001
Proceedings: Final Order filed.
PDF:
Date: 06/13/2001
Proceedings: Agency Final Order
PDF:
Date: 05/21/2001
Proceedings: Remanded from the Agency
PDF:
Date: 05/21/2001
Proceedings: Order (recommending that a Final Order be entered revoking Respondent`s teaching certificate) issued.
PDF:
Date: 05/18/2001
Proceedings: Order of Remand filed.
PDF:
Date: 03/19/2001
Proceedings: Letter to Kathleen Richards from Lisa Barnes regarding the return of Petitioner`s Exhibit 1 that was inadvertently left out of the March 5th transmittal filed.
PDF:
Date: 03/05/2001
Proceedings: Recommended Order
PDF:
Date: 03/05/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 03/05/2001
Proceedings: Recommended Order issued (hearing held November 30, 2000) CASE CLOSED.
Date: 01/25/2001
Proceedings: Transcript with diskette filed.
Date: 01/22/2001
Proceedings: Letter to Judge F. Rivas from C. Whitelock In re: Diskette containing Respondent`s Proposed Recommended Order filed.
PDF:
Date: 01/18/2001
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 01/18/2001
Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 01/09/2001
Proceedings: Order issued (parties shall file proposed recommended orders by January 18, 2001).
Date: 01/08/2001
Proceedings: Transcript filed.
PDF:
Date: 01/04/2001
Proceedings: Joint Motion for an Extension of Time to File Proposed Recommended Orders (filed via facsimile).
PDF:
Date: 12/13/2000
Proceedings: Letter to DOAH from L. Pearson In re: temporary mailing address for holiday season (filed via facsimile).
Date: 12/01/2000
Proceedings: Trial Exhibits filed by C. Whitelock.
Date: 11/30/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 11/27/2000
Proceedings: Order Granting Motion to Include Transcripts Into Evidence issued.
PDF:
Date: 11/17/2000
Proceedings: Respondent`s Response to Include Transcripts into Evidence (filed via facsimile).
PDF:
Date: 11/16/2000
Proceedings: Petitioner`s Motion to Include Transcripts into Evidence (filed via facsimile).
PDF:
Date: 11/15/2000
Proceedings: Respondent`s Unilateral Pre-Hearing Stipulation (filed via facsimile).
PDF:
Date: 11/15/2000
Proceedings: Petitioner`s Unilateral Stipulation (filed via facsimile).
PDF:
Date: 11/13/2000
Proceedings: Respondent`s Second Request for Production filed.
PDF:
Date: 11/03/2000
Proceedings: Petitioner`s Response to Respondent`s Request for Production (filed via facsimile).
PDF:
Date: 11/03/2000
Proceedings: Petitioner`s Answers to Respondent`s First Interrogatories (filed via facsimile).
PDF:
Date: 10/23/2000
Proceedings: Respondent`s Answer to Request for Production (filed via facsimile).
PDF:
Date: 10/23/2000
Proceedings: Notice of Filing Answers to First Set of Interrogatories to Respondent (filed via facsimile).
PDF:
Date: 10/05/2000
Proceedings: Re-Notice of Taking Deposition of M. Mitchell (filed via facsimile).
PDF:
Date: 09/26/2000
Proceedings: Respondent`s Request for Production filed.
PDF:
Date: 09/26/2000
Proceedings: Respondent`s Interrogatories to Petitioner filed.
PDF:
Date: 09/07/2000
Proceedings: Order Denying Motion to Estop Relitigation of This Matter and to Proceed to Penalty Phase issued.
PDF:
Date: 09/07/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for November 30, 2000; 9:00 a.m.; Miami, FL).
PDF:
Date: 09/01/2000
Proceedings: Motion for Continuance (filed by Respondent via facsimile).
PDF:
Date: 09/01/2000
Proceedings: Petitioner`s Motion to Estop Relitigation of this Matter and to Proceed to Penalty Phase (filed via facsimile).
PDF:
Date: 09/01/2000
Proceedings: Petitioner`s Motion to Expedite Discovery Responses (filed via facsimile).
PDF:
Date: 08/28/2000
Proceedings: Motion in Response to Order Concerning Scheduling of Formal Hearing filed.
PDF:
Date: 08/21/2000
Proceedings: Ltr. to Judge L. Sartin from L. Pearson In re: request for subpoenas filed.
PDF:
Date: 08/16/2000
Proceedings: Notice of Hearing issued (hearing set for September 28 and 29, 2000; 9:00 a.m.; Miami, FL).
PDF:
Date: 08/16/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 08/16/2000
Proceedings: Order Concerning Scheduling of Formal Hearing issued.
PDF:
Date: 08/14/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 08/14/2000
Proceedings: Notice of Appearance (filed by C. Whitelock via facsimile).
PDF:
Date: 08/08/2000
Proceedings: Order to Provide Information issued. (parties shall respond by 8/17/2000)
PDF:
Date: 07/24/2000
Proceedings: Order Placing Case in Abeyance sent out. (parties to advise status by September 21, 2000)
PDF:
Date: 07/19/2000
Proceedings: Motion to Abate (Petitioner) filed.
Date: 07/11/2000
Proceedings: Initial Order issued.
PDF:
Date: 07/06/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 07/06/2000
Proceedings: Finding of Probable Cause filed.
PDF:
Date: 07/06/2000
Proceedings: Election of Rights filed.
PDF:
Date: 07/06/2000
Proceedings: Set Formal Hearing filed.
PDF:
Date: 07/06/2000
Proceedings: Election of Rights filed.
Date: 07/06/2000
Proceedings: Notice of Appearance (by L. Pearson) filed.
PDF:
Date: 07/06/2000
Proceedings: Agency referral filed.

Case Information

Judge:
FLORENCE SNYDER RIVAS
Date Filed:
07/06/2000
Date Assignment:
11/27/2000
Last Docket Entry:
06/14/2001
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

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Related Florida Statute(s) (2):

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