96-001692 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Phyllis Blackmon Status: Closed Recommended Order on Thursday, July 31, 1997.

Summary: Evidence was not clear and convincing that Respondent was grossly incompetent and falsified records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-1692

)

PHYLLIS BLACKMON, n/k/a )

PHYLLIS BLACKMON LEDBETTER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative

Hearings, before Administrative Law Judge, Daniel M. Kilbride, in

Orlando, Florida, on April 1, 1997, and May 22, 1997. The

following appearances were entered:

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Phyllis Blackmon Ledbetter

202 Dalton Drive

Oviedo, Florida 32765

STATEMENT OF THE ISSUE

Whether the Respondent is guilty of gross incompetence and

falsification of course sheets as alleged in the Administrative

Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on March 21, 1993. On or about April 14, 1993,

Respondent completed an Election of Rights form in which she

disputed the allegations of fact and requested an administrative

hearing pursuant to Section 120.57(1), Florida Statutes.

Petitioner filed an Amended Administrative Complaint against

Respondent on June 27, 1995. Thereafter, the case was not

forwarded to the Division of Administrative Hearings for formal

proceedings until February 20, 1996. Following the completion of

discovery, a formal hearing was conducted on April 1 and May 22,

1997.

During the hearing nine exhibits were admitted into evidence

on behalf of the Petitioner. At the hearing, the Petitioner

presented the testimony of five witnesses: Barbara Sue Bushnell,

Georgette Thornton, Pamela Eckler, Laurie Simpson, and James

Roach. The Respondent presented the testimony of five witnesses:

Belinda Atkins, Terry Johnston, Robert Clark, Jacqueline Miller,

and Burton Test. The Respondent also testified in her own

behalf.

The transcripts of the proceedings were ordered by the

Petitioner, and both transcripts were filed with Division of

Administrative Hearings on June 9, 1997 and June 11, 1997,

respectively. After the hearing, the parties were granted 10

days after filing of the transcripts in which to file a proposed

recommended order. Petitioner filed its proposed recommended

order on June 23, 1997. Respondent has not filed proposed

findings of fact as of the date of this order.

FINDINGS OF FACT

Based upon the exhibits received into evidence, the

stipulation of the parties, and testimony of the witnesses at the

hearing, the following findings of fact are made:

1. The Respondent was certified by the Criminal Justice

Standards and Training Commission on April 1, 1987, as an

instructor and was issued instructor certificate number 129487.

2. Respondent was employed at Central Florida Criminal

Justice Institute located at the Mid-Florida Vocational Technical

Institute, beginning in March 1989. During the relevant period,

Respondent was employed as Program Director/Coordinator of

advanced and specialized training. Respondent was also the

Assistant Director of the Academy.

3. Respondent has prior experience as a corrections office r

and as a certified probation officer. Respondent received a

Masters degree in education and is a certified teacher.

4. In February of 1992, Ron Kazoroski was the Director of

the Criminal Justice Institute at the Mid Florida Vo-Tech.

5. Respondent was responsible for initiating night courses

at the Institute for the benefit of the officers who worked the

second or third shifts. February 1992 was the second time that

the Instructor Techniques class had been offered at night.

6. Respondent had plann ed to be more involved in the

instruction of the Instructor Techniques course than she had been

in the previous time the course was offered and had scheduled

herself to teach several blocks of instruction. However, the

week before the course was to start, Respondent was informed that

she needed major surgery within two days.

7. Respondent spent Wednesday and Thursday trying to find

instructors to cover for her, prior to her scheduled surgery on

Friday. Respondent contacted Pam Eckler, an instructor at the

academy, to assist her in locating qualified instructors who

could teach on short notice. Respondent was trying to prevent

the cancellation of the course.

8. On the first night of class Respondent was recuperating

from the surgery. Respondent submitted six certificates of

absence for the period of January 28 through February 26, 1992.

9. The Instructor Techniques course started on February 3,

1992, and finished on February 28, 1992. The course was

scheduled in the evening from 5:30 p.m. to 9:30 p.m.

10. Florida Department of Law Enforcement regulations

required the Instructor Techniques course to be 80 hours long,

and the class was formatted for that many hours.

11. In February of 1992, Barbara Bushnell was a Corrections

Officer employed by Orange County Corrections and assigned to the

Training and Staff Development Department. Bushnell was assigned

to the Academy prior to the Instructor Techniques class in

February of 1992. Bushnell was certified as an instructor by the

Criminal Justice Standards and Training Commission.

12. In February of 1992, Pamela Eckler was a Correctional

Training Supervisor for Orange County Corrections, Department of

Training and Staff Development. Eckler was also an instructor,

certified by the Criminal Justice Standards and Training

Commission.

13. Eckler was asked by the Respondent if she was

interested in teaching the evening Instructor Techniques course

in February of 1992. Eckler agreed, and was offered the

opportunity to teach the classes of her choice. Eckler decided

to teach Adult Learning Theory on February 3, 1992, from 7:30

p.m. to 9:30 p.m. and Liability and Ethics on February 4, 1992,

from 5:30 p.m. to 9:30 p.m.. On February 21 and 25, 1992, Eckler

was assigned to monitor the student presentations from 5:30 p.m.

to 9:30 p.m.

14. On February 3, 1992, Eckler received a telephone call

from the Respondent who had just had surgery on Friday, asking

her to move her block from 7:30 p.m. to 5:30 p.m. Respondent

also asked Eckler to give the class a short orientation to the

course. Eckler taught her two-hour segment and allowed the

students to leave on February 3rd at 7:30.

15. On February 4, 1992, Eckler taught a four-hour block on

Liability and Ethics. Eckler utilized the whole time period, and

the students were not let out early.

16. On February 20, 1992, Respondent called Eckler and told

her that she was not needed to teach on February 21 because the

Respondent had given the class an off-campus assignment. Eckler

did not teach the class on February 21, 1992.

17. Eckler was scheduled to monitor the students’

presentations on February 25, 1992, from 5:30 p.m. to 9:30 p.m.

Several students had a problem with the lesson plan development.

Eckler characterized the problems with the lesson plans as major,

with the problems being in different areas.

18. In February of 1992, Georgette Thornton, a Lieutenant

with Orange County Corrections and a certified instructor by the

Criminal Justice Standards and Training Commission, was asked if

she was interested in teaching part of the Instructor Techniques

course. Thornton called the Respondent who indicated that she

needed an instructor for February 10, 11, and 12, 1992, as an

emergency replacement. Thornton agreed to teach two hours on

February 10, four hours on February 11, and four hours on

February 12th.

19. Thornton found out from the students that it was the

second week of class, and the students were not aware who the

Respondent was. The students did not know what their final

project was. Thornton talked to the Respondent, explaining her

observations. She asked her to speak to the class about their

responsibilities for their final project.

20. Respondent appeared at the class on February 11th and

told the class what their final project was. Respondent also

covered part of the class material that Thornton was supposed to

instruct. Thornton then elaborated on what Respondent had said.

21. Thornton did not have sufficient materials given to her

by Respondent to fill up the four-hour time block she was

scheduled to teach. She did not have an adequate opportunity to

supplement the materials given to her by Respondent, since they

were given to her on Friday and the class was on Monday.

Respondent told Thornton in front of the class to cover the rest

of the material and to allow the students to leave early.

22. Thornton covered everything that was in the guide and

released the students at 7:30 p.m. on February 11th. Thornton

also gave them a thorough review on the 12th of the items that

they could expect on the exam. Thornton released the students at

7:00 p.m.

23. Thornton decided to write a memo to the director.

Thornton was concerned about the poor organization of the class

and the lack of guidance given the students by Respondent.

Thornton did not feel that the students were getting the amount

of instruction they deserved in the class.

24. A week or two before the class was scheduled to start,

Bushnell was asked by the Respondent to teach a portion of the

Instructor Techniques class being offered in February of 1992.

Bushnell was asked to replace an instructor who had an emergency

situation and could not teach.

25. Bushnell was asked to teach Lesson Plan Development on

February 13 and 14, from 5:30 p.m. to 9:30 p.m. Bushnell had in

her possession a copy of the goals and objectives of the

Instructor Techniques course, which was part of the materials she

previously had in her possession. She also had in her possession

the FDLE Instructor Techniques Instructor Guide, which had all of

the different areas to be covered in the course, including goals

and objectives. Bushnell was given an ample amount of time to

prepare for her block of instruction.

26. Bushnell taught the Instructor Techniques class from

5:30 p.m. to 9:30 p.m. on February 13, 1992. Bushnell placed

posters on the wall showing the two types of outlines for lesson

plan development. She was informed by the students that the

Respondent had already told them that the outline format was not

going to be used. Bushnell informed them that there were several

different types of formats, and that she would be instructing

them using the outline format. The outline format was taken from

the Instructor Techniques Instructor Guide.

27. On February 14, 1992, Bushnell met with the Respondent

prior to class to sign her contract for teaching the class. She

also discussed details concerning the expectations of the class.

The Respondent told Bushnell that the students were used to

having some time during lesson plan development to work on their

lesson plan outside of class. She expected Bushnell to give the

students an outside assignment.

28. Bushnell covered the materials in the outline and

instructed her class until 9:30 p.m.

29. Bushnell did not have enough time to cover all of the

material she was supposed to cover. The students stated that

they were having trouble with the lesson plans and requested her

help in their development. Bushnell offered to help them on

their lesson plans during the time she was scheduled to teach.

30. Bushnell had concerns about how the class was being

conducted and wrote a letter to Director Kazoroski, stating her

concerns with the Instructor Techniques class. The students were

upset due to a lack of direction being given by the Respondent.

The students were also confused due to misunderstandings on how

the lesson plan should be written.

31. In February of 1992, Jacqueline Miller was an

instructor in the Instructor Techniques course offered that month

that the Respondent coordinated. Miller was asked by the

Respondent to critique the students making their presentations.

Miller was not required to do any preparation to complete her

instruction, since it only involved critiquing the students.

32. Miller contracted to critique the students for twelve

hours between February 24 and 27, 1992. Miller utilized the

maximum amount of time allowed for each day that she was in

class. Although the skill level of the students varied

considerably, none received a failing grade.

33. On March 2, 1992, Eckler, Thornton, and Bushnell met

with Kazoroski to discuss the problems with the class.

34. The students were confused because Bushnell had taught

Lesson Plan Development using the guidelines from the Instructor

Guide, but the Respondent instructed the class to do it

differently. This inconsistency confused them. Respondent did

not assist them in their lesson plan development.

35. The course was not well organized. The class was given

a week to work on their lesson plans at home, with no one

available to assist them, and they were confused about how to

complete them.

36. The Respondent’s instructor skills for this class were

criticized. However, Respondent’s skills were not evaluated.

37. On several occasions, the students were allowed to

leave early from class. The Respondent would tell the class that

they had assignments to do at home or out of class.

38. The instructor notes to the Instructor Guide state that

[T]his instructor guide was developed with the

intention of providing the basic instructional material

for this course. The individual instructor will find

that only the minimum has been provided. None of the

blocks of instruction provide the entire material for

the topic being instructed. Each instructor is

expected to use the provided material as a starting

point and a reference source.

39. The instructor notes to the Instructor Guide state that

[E]ight hours have been provided for lesson plan

development in class. This block was provided to allow

the instructor to assist the students in their

individual development of lesson plans. This does not

suggest that students will not be required to work

outside the classrooms.

40. It was the policy of the Criminal Justice Institute to

keep class documents, including the attendance sheets, from every

class that was offered at the institute. The documents were kept

in a file cabinet in the director’s office and were supposed to

be kept in a secure place. The attendance sheets were required

for FDLE audits to show that each student attended the requisite

number of hours for the class.

41. The records of the Instructor Techniques course offered

at Mid-Florida Vo-Tech in February 1992, were reviewed including

the overall attendance records for the Instructor Techniques

class, which were signed by the Respondent. It was the policy of

the Criminal Justice Institute that 50 minutes of instruction,

with a 10 minute break, constitute 1 hour of credit.

42. The class was given credit for 80 hours attended.

However, there were 16 hours of class cancelled by Respondent,

including the class on February 28, 1992, when that class was

cancelled by Respondent because the course was over. All of the

students received credit for four hours on February 3, 1992, when

Eckler allowed the students to leave after two hours. For

February 11 and 12, 1992, Respondent gave each student credit for

four hours, although Thornton allowed the students to leave after

two hours on February 11, and after three hours on February 12.

The students were given credit for four hours for February 19,

20, and 21, 1992, for lesson plan development that was done

outside the classroom.

43. The FDLE requirements are that the Instructor

Techniques course allows for eight hours of lesson plan

development in class. It was usual for an academy to have an

instructor available during the lesson plan development to answer

any questions or concerns of the students while they worked on

their lesson plans in class.

44. FDLE rules stated that if a student missed over ten

percent of the class, that student was deemed to have not

successfully passed the class.

45. The early release hours and the out-of-class

assignments given to the students were not reflected on the

overall attendance sheet signed by the Respondent.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

47. Section 11B-20.001(1), Florida Administrative Code

(1991), states that

[E]xcept as otherwise provided herein or by law, all

persons who instruct Criminal Justice Standards and

Training Commission approved courses at or through a

certified criminal justice training school must be

certified by the Commission.

48. Section 11B-20.0012, Florida Administrative Code

(1991), establishes under what circumstances a CJSTC-certified

instructor may lose his or her certification:

The certification of a criminal justice instructor

shall be revoked if the instructor fails to maintain

any of the requirements set forth in 11B-20.001(1),

(3)(a)-(b), or, who:

(a) Willfully compromises the security and

confidentiality of examinations or grading keys

developed and utilized in Commission-approved criminal

justice training courses.

(b) Willfully compromises or circumvents the trainee

attendance requirements set forth in 11B-31.001,

Florida Administrative Code.

(c) Willfully compromises or circumvents the trainee

performance requirements set forth in 11B-31.002,

Florida Administrative Code.

(d) Intentionally and materially falsifies criminal

justice training documentation.

(e) Commits an act or acts establishing gross

incompetence, as determined by the Commission.

(f) Commits an act or acts establishing a lack of good

moral character as defined in Rule 11B-27.0011(4),

Florida Administrative Code.

49. Section 11B-31.001(1), Florida Administrative Code,

states that

[E]ach trainee shall be required to attend all sessions

of any training course in which he/she is enrolled

except for absences approved by the training center

director. No trainee shall be considered to have

successfully completed a training course if his/her

absences exceed ten percent of the hours of basic

recruit instruction, advanced or career development

training courses.

50. Rule 11B-27.0011(4), Florida Administrative Code

(1991), provides a definition of “good moral character” for

purposes of implementation of disciplinary action upon Florida

law enforcement, correctional, and correctional probation

officers. The rule stated in pertinent part:

(4) For the purposes of the Commission’s

implementation of any of the penalties enumerated in

Section 943.1395(6) or (7), F.S., a certified officer’s

failure to maintain good moral character, as required

in Section 943.13(7), F.S., is defined as:

(c) The perpetration by the officer of an act or

conduct which:

1. significantly interferes with the rights of others;

or

2. significantly and adversely affects the functioning

of the criminal justice system or an agency thereof; or

3. causes substantial doubts concerning the officer’s

moral fitness for continued service; . . .

51. Section 11B-27.005(3)(c), Florida Administrative Code

(1991) listed certain acts or conduct that do not constitute a

crime, but which are specifically included in Section 11B-

27.0011(4)(c), Florida Administrative Code (1991). One such act

or conduct that is listed is “False Reports, Statements, or

Falsification of Application.”

52. In Florida Board of Bar Examiners RE: G. W. L. , 364

So. 2d 454 (Fla. 1978), the Florida Supreme Court stated:

In our view a finding of a lack of ‘good moral

character’ should not be restricted to those acts that

reflect moral turpitude. A more appropriate definition

of the phrase requires an inclusion of acts and conduct

which would cause a reasonable man to have substantial

doubts about an individual’s honesty, fairness, and

respect for the rights of others and for the laws of

the state and nation.

See also White vs. Beary , 237 So. 2d 263 (Fla. 1st DCA 1970).

53. Black’s Law Dictionary d efines “Incompetency” as “Lack

of ability, legal qualification, or fitness to discharge the

required duty.” Black’s Law Dictionary further defines “Gross”

as “out of all measure; beyond allowance; flagrant; shameful; as

a gross dereliction of duty, a gross injustice, gross

carelessness, or negligence. Such conduct as is not to be

excused.”

54. One of the few definitions of gross incompetence in the

context of a professional license is found in Everett vs.

Gillespie, et al ., 63 So. 2d 903 (Fla. 1953), where the Florida

Supreme Court stated that “[G]ross incompetence imports a lack of

diligence or competence with reference to discharging legal or

professional obligations or duties.”

55. In Griffin vs. School Board of Dade County , 497 So. 2d

913, (footnote 1) (Fla. 3rd DCA 1986), the Third District Court

of Appeal produced a helpful definition in the context of an

instructor/student relationship:

[I]ncompetence is the inability or lack of fitness to

discharge the required duty as a result of

inefficiency, i.e., the repeated failure on the part of

the teacher to communicate with and relate to the

children in the classroom to such an extent that pupils

are deprived of minimal educational experience, or

incapacity, i.e., the lack of emotional stability,

adequate physical ability, general educational

background or adequate command of the teacher’s area of

specialization.

56. This proceeding involves disciplinary action against

Respondent’s certification as an instructor. Therefore, the

burden of proof to establish facts upon which the Petitioner

seeks to discipline Respondent’s certification is on the

Petitioner. Balino vs. Dept. of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). The charges must

be proven by the Petitioner through the introduction of clear and

convincing evidence. Ferris vs. Turlington , 510 So. 2d 292 (Fla.

1987).

57. In the instant case, clear and convincing evidence

established that on or about January 29, 1992, Respondent was

ordered by her doctor to have emergency surgery performed on the

Friday before the Instructor Techniques class was to begin.

Respondent called Eckler, a colleague who was already scheduled

to teach part of the class. Respondent requested help in

finding emergency replacements for herself, and Eckler

recommended Bushnell and Thornton. Respondent contracted to have

them teach within days of their first classes.

58. Respondent provided Thornton with the Instructor Guide

outline. The Instructor Guide stated that the outline was a

minimum, and instructors would have to provide additional

information to complete their instructor. Since there was little

time before the class began, Respondent told her to cover the

minimum in the book and let the class go home early.

59. Respondent did the same thing for Eckler. Respondent

called her on the day she was to teach the second half of the

class and told her she was recovering from surgery. Respondent

asked her to move her class up, cover the orientation material

and Eckler’s topic, then let the class go home early.

60. Respondent, as coordinator, was responsible with

providing the students with an orientation, and providing them

with what expectations they were responsible for. However, due

to her recent surgery, it was the second week of class and at

Thornton’s request that Respondent made her first appearance in

the class.

61. Bushnel was contracted to teach the Lesson Plan

Development portion of the Instructor Techniques class. Bushnell

used all of her eight hours of instruction, but spent part of her

time “starting over,” since the Respondent had already told the

class that she wanted the outlines done a different way than

Bushnell was teaching. Bushnell had no notice of this, and the

Respondent’s impromptu instruction the week before confused the

class to the point that it was a major factor for the rest of the

class. This was not based on the inability of Bushnell, but on

the conflicting information given by Respondent during a

different part of the class. However, the evidence did not

indicate if there was a “correct” outline form which must be

followed.

62. The Respondent then decided that in order to give

students time to prepare the lesson plan outlines, she cancelled

two classes and permitted the students to work on them at home.

Respondent did give the students credit for it on the attendance

sheet. Although this practice was not favored, the evidence was

not clear and convincing that the instructor was forbidden to

follow this practice.

63. Respondent was responsible for keeping documentation

for the Criminal Justice Standards and Training Commission. This

is the relationship between training academies and the

Commission; the academies are independent, but must provide

documentation to the Commission to show that the Commission

guidelines are met. The Instructor Techniques course was

designated at 80 hours of instruction.

64. Respondent was not in a position to ensure that this

requirement was met. Respondent hired several instructors at the

last minute due to a medical emergency. When they said that they

were unable to meet the time requirement because of a lack of

preparation, she permitted them to let the students go early.

One-quarter of the 80 hours was cancelled either at the

Respondent’s direction or with her permission. The Respondent

filed an attendance sheet, ostensibly for review and audit by the

Commission, showing that all of the students had met the ten

percent requirement. The fact that approximately 26 hours had

been cancelled was not reflected on the attendance sheet.

However, attendance records showed that eight students attended

all 80 hours, and the least number of hours attended was 72, the

exact minimum under Section 11B-31.001, Florida Administrative

Code.

65. Respondent testified that she was sick and that she was

never notified of the problems the class was experiencing.

However, she knew or should have known that her lack of effort on

this course affected its quality.

66. Paragraph 2(a) of the Administrative Complaint alleges

that on or between February 2 and February 28, 1992, the

Respondent, as coordinator of the Instructor Techniques course,

committed an act or acts which constituted gross incompetence.

The facts tendered to prove these allegations are insufficient to

prove a violation of Section 11B-20.0012(1)(e), Florida

Administrative Code. Respondent’s handling of this class was

certainly less than professional which resulted in a poor class

experience. However, it does not rise to the level of “gross

incompetence.”

67. Para graph 2(b) of the Administrative Complaint alleges

that on or about March 12, 1992, Respondent knowingly falsified

attendance documents by misrepresenting the course hours

attended. The proof is not clear and convincing that these

allegations are a violation of Section 11B-20.0012(1)(b), Florida

Administrative Code, in that Respondent willfully compromised or

circumvented the trainee attendance requirements as set forth in

Section 11B-31.02, Florida Administrative Code. The evidence is

insufficient to prove the allegations are also a violation of

Section 11B-20.0012(1)(d), Florida Administrative Code, in that

they were an intentional and material falsification of criminal

justice training documentation.

68. The evidence is insufficient to prove that the

allegations contained in Paragraph 2(b) of the Amended

Administrative Complaint violate Section 11B-20.0012(1)(f),

Florida Administrative Code, in that they indicate a failure to

maintain good moral character as defined in Section 11B-

27.0011(4), Florida Administrative Code.

69. Clear and convincing evidence was lacking to establish

that the Respondent committed misconduct or gross incompetence

and a lack of good moral character, under applicable case law and

administrative rules.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Respondent be found not guilty of

violations of Sections 11B-20.0012(1)(b), (d), (e), and/or (f),

Florida Administrative Code, and that the Amended Administrative

Complaint be dismissed.

RECOMMENDED this 31st day of July, 1997, at Tallahassee,

Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 1997.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Phyllis Blackmon Ledbetter

202 Dalton Drive

Oviedo, Florida 32765

A. Leon Lowry, II, Director

Division of Criminal Justice Standards

and Training

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

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.