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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2765PL

)

MARGARET ANN MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

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

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

Rivas, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner : Lisa N. Pearson, Esquire

United Teachers of Dade

2929 Southwest Third Avenue

Coral Way

Miami, Florida 33129

For Respondent : Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint dated

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

taken against her.

PRELIMINARY STATEMENT

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

Commissioner of Education (the Commissioner) filed an

Administrative Complaint against Margaret Ann Mitchell

(Mitchell) seeking to revoke her Florida teaching certificate.

Mitchell filed a timely request for a hearing to challenge

the proposed discipline, and the matter was referred to the

Division of Administrative Hearings (DOAH) for the assignment of

an administrative law judge to conduct a formal hearing.

The Administrative Complaint charged that on or about

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

proctor, unlawfully copied the mathematics portion of the 1997-

1998 High School Competency Test (HSCT), and distributed it to

several other teachers before the test was administered.

The allegations against Mitchell in connection with the

HSCT spawned three separate legal proceedings, of which this is

the last.

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

jury on charges of violating Section 228.301, Florida Statutes,

relating to test security.

Additionally, the Miami Dade County School Board sought to

terminate Mitchell's employment as a teacher. The termination

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

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

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

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

with DOAH on February 15, 2000.

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

Florida teaching certificate.

The Commissioner alleged that the events giving rise to

Mitchell's criminal conviction and employment termination

constitute five separate statutory violations and one rule

violation, as follows:

Count 1 : The allegations of misconduct

set forth herein are in violation of Section

231.28(1)(c), Florida Statutes, in that

Respondent has been guilty of gross

immorality or an act involving moral

turpitude.

Count 2 : The allegations of misconduct

set forth herein are in violation of Section

231.28(1)(e), Florida Statutes, in that

Respondent has been convicted of a

misdemeanor, felony, or other criminal

charge, other than a minor traffic

violation.

Count 3 : The allegations of misconduct

set forth herein are in violation of Section

231.28(1)(f), Florida Statutes, in that

Respondent, upon investigation, has been

found guilty of personal conduct which

seriously reduces her effectiveness as an

employee of the school board.

Count 4 : The allegations of misconduct

set forth herein are in violation of Section

231.28(1)(i), Florida Statutes, in that

Respondent has violated the Principles of

Professional Conduct for the Education

Profession in Florida prescribed by State

Board of Education.

Count 5 : Section 231.28(2), Florida

Statutes, provides that the plea of guilty

in any court or a decision of guilty by any

court is prima facie proof of grounds for

the revocation of the certificate.

Count 6 : The allegations of misconduct

set forth herein are in violation of Rule

6B-1.006(5)(a), Florida Administrative Code,

in that Respondent has failed to maintain

honesty in all professional dealings.

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

which were accepted into evidence. Respondent testified in her

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

administrator for the HSCT at issue in these proceedings.

The one-volume Transcript of the hearing was filed

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

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

The proposed recommended orders were timely filed and have been

carefully considered in the preparation of this recommended

order.

FINDINGS OF FACT

1. At all times material hereto, the Commissioner is

responsible for providing public, primary, secondary, and adult

education teaching certificates in the State of Florida.

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

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

assigned to Barbara Goleman Senior High School (BGSHS).

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

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

students to qualify for a regular high school diploma pursuant

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

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

Section 228.301, Florida Statutes. That section provides, in

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

willfully violate test security rules adopted by the State's

Board of Education for mandatory tests administered by school

districts pursuant to Section 229.57, Florida Statutes. It is

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

secured test booklet in any manner inconsistent with test

security rules. Id.

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

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

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

both.

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

Florida Administrative Code, which requires, inter alia , that

tests implemented in accordance with the requirements of Section

229.57, Florida Statutes, be maintained and administered in a

secure manner such that the integrity of the test shall be

preserved and that tests or individual test questions shall not

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

involved in the administration, proctoring, or scoring of any

test.

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

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

communications portion of the HSCT was being administered,

Mitchell unlawfully gained access to the mathematics portion of

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

date.

8. Shortly thereafter, and before the mathematics portion

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

message to four out of approximately ten fellow BGSHS math

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

their respective school mail boxes. Each of these instructors,

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

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

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

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

each disk were many of the actual HSCT mathematics questions

unlawfully obtained by Mitchell.

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

the "blue gift" immediately suspected that Mitchell had engaged

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

suspicions to BGSHS' principal. Following investigations by

appropriate authorities and the panoply of due process

protections appropriate to each forum, Mitchell was convicted on

the misdemeanor charge of having knowingly and willfully

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

Miami-Dade County school teacher was terminated.

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

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

Honorable Caryn Canner Schwartz in the County Court in and for

Miami-Dade County, Florida, in June 1999.

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

jury returned a verdict of guilty against Mitchell for her

violation of Section 228.301, Florida Statutes.

13. Mitchell does not dispute that the foregoing criminal

and administrative proceedings were conducted, and that the

charges against her in each case were sustained.

14. Mitchell did not seek appellate relief with respect to

either proceeding.

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

proceedings, that she did not intend to violate test security

procedures. She claims that she innocently copied and

distributed what she thought was an authorized practice test.

16. Mitchell did not offer her innocent mistake defense to

anyone until two months after her crime was revealed.

Mitchell's claims of innocence are inconsistent with her conduct

and demeanor when she was first confronted with the allegations

against her, as well as the known facts and circumstances

surrounding the HSCT security breach.

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

this proceeding with respect to her innocent mistake defense is

unworthy of belief. Mitchell's demeanor while testifying was

deceptive, and her testimony was inconsistent with the known

facts and circumstances surrounding the HSCT security breach.

18. At Mitchell's criminal sentencing, Judge Schwartz

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

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

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

six months probation.

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

Board initiated dismissal proceedings against Mitchell and, on

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

sustained the dismissal. In his Recommended Order, Judge

Kendrick concluded, in pertinent part:

Here, it should not be subject to debate

that Respondent’s act of knowingly and

willfully reproducing the mathematics

portion of the 1997 HSCT and providing

copies of that test to her fellow teachers

constituted an act of immorality and

misconduct in office; that such conduct was

sufficiently notorious to bring Respondent

into public disgrace or disrespect and

impair her service in the community; and

that such conduct was so serious as to

impair her effectiveness in the school

system. It should also not be subject to

debate that, upon conviction of the crime

for breach of test security, Respondent, as

an educator, was also shown to have been

convicted of a crime involving moral

turpitude.

(P.4 at 10-11.)

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57, Florida

Statutes.

21. The Commissioner and the State of Florida Education

Practices Commission has jurisdiction over the parties and the

subject matter of this proceeding pursuant to Section 231.262

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

Administrative Code, Principles of Professional Conduct for the

Education Professional in Florida.

22. The State of Florida Education Practices Commission

has authority to seek sanctions against Respondent as set forth

in Sections 231.262 and 231.28, Florida Statutes.

23. Petitioner in this matter seeks disciplinary sanctions

against Respondent’s teaching certificate pursuant to Section

231.262(6) and 231.28, Florida Statutes, and Rule 6B-1.006,

Florida Administrative Code, Principles of Professional Conduct

for the Education Professional in Florida, for the statutory and

rule violations as set forth in Petitioner’s Administrative

Complaint.

24. Petitioner bears the burden of proof in t his

proceeding by clear and convincing evidence. Ferris v.

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

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

Administrative Complaint has been conclusively established in

that Mitchell stands convicted of a misdemeanor, or other

criminal charge, other than a minor traffic violation, in

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

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

Administrative Complaint has also been conclusively established

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

which decision constitutes prima facie proof of grounds for the

revocation of the Respondent’s certificate in accordance with

Section 231.28(2), Florida Statutes.

27. Mitchell does not dispute the fact of her criminal

conviction. Instead she argues that the undersigned, upon

review of the transcripts of the criminal proceeding, should

conclude that the criminal conviction was unwarranted and should

be rejected in these proceedings.

28. There is no authority for the proposition that the

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

having accepted Mitchell's invitation to revisit the facts and

circumstances as demonstrated in the criminal and administrative

proceeding transcripts, the undersigned concurs that the

evidence in each of those proceedings supported, by at least

clear and convincing evidence, a finding that Mitchell was

guilty of knowingly and willfully violating the security of the

1997 HSCT.

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

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

itself to support the revocation of Mitchell's teaching

certificate.

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

IV, and VI are subsumed within the undisputed and dispositive

fact of Mitchell's criminal conviction.

31. Based upon the undisputed evidence supporting the

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

impose the ultimate sanction pursuant to the authority provided

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

revocation of Mitchell's teaching certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

the teaching certificate of the Respondent.

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

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2001.

COPIES FURNISHED:

Lisa N. Pearson, Esquire

United Teachers of Dade

2929 Southwest Third Avenue

Coral Way

Miami, Florida 33129

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Jerry W. Whittier, Chief

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224-E

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.