05-003220PL Jim Horne, As Commissioner Of Education vs. Harriett S. Parets Status: Closed Recommended Order on Tuesday, April 4, 2006.

Summary: Recommend that Respondent be disciplined for giving assistance during the proctoring of the Florida Comprehensive Assessment Test.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner )

of Education, 1 )

)

Petitioner, )

)

vs. ) Case No. 05 - 3220PL

)

HARRIET T S. PARETS )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

T his case came before Larry J. Sartin, an Administrative

Law Judge of the Division of Administrative Hearings, for

decision based upon the Parties Joint Motion and Stipulation for

the Entry of Findings of Fact and Conclusions of Law in a

Recommended Order.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Mathew Hay nes, Esquire

Chamblee, Johnson & Haynes, P.A.

The Barrister’s Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Harriet t S.

Parets , committed the offense s alleged in an Administrative

Complaint issued by Petitioner, and dated July 27, 2004 , and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Com plaint dated July 27, 2004 , then

Florida Commissioner of Education, Jim Horne , charged Harriet t

S. Parets with having violated S ubs ection s 1012.795(1)(c, (f),

and (i) , Florida Statutes (2003). M s. Parets timely disputed

the factual allegations in "item 3 (p a ges 1 and 2)" of the

Administrative Complaint by executing an Election of Rights form

in which s he elected the "Settlement Option." By selecting the

Settlement Option, M s . Parets requested an opportunity to

negotiate a settlement of the charges against her, and , if that

effort failed, a "Formal" hearing on the charges.

On December 7, 2004, after efforts at settlement apparently

failed, Ms. Parets' request for hearing was forwarded to the

Division of Administrative Hearings for the assignment of an

admin istrative law judge to conduct an evidentiary hearing. The

matter was designated DOAH Case No. 04 - 4393 PL and was assigned

to the undersigned.

On April 2, 2005 , Petitioner filed a Motion to Cancel

Hearing to Relinquish Jurisdiction to EPC. Petitioner

repr esented that the parties had "negotiated a Settlement

Agreement resolving the issues contained in the Administrative

Complaint." Therefore, Petitioner requested that the final

hearing of this matter be canceled and that jurisdiction be

relinquished to the "EPC for its consideration of the Settlement

Agreement." By Order Closing File entered April 5, 2005,

Petitioner's Motion was granted "with leave for either party to

request t he Division to re - open the case , should the settlement

be disapproved by the Ed ucation Practices Commission."

By letter filed August 31 , 2005, counsel for Petitioner

filed a letter representing that the proposed Settlement

Agreement reached by the parties had been rejected by the

Education Practices Commission. Therefore, Petitioner requested

that the matter be re - opened. By Order Re - Opening DOAH Case

No. 04 - 4393PL as DOAH Case No. 05 - 3220PL, the matter was

re - opened on September 7, 2005.

After several continuances of the final hearing, the final

hearing was finally set for Mar ch 1 and 2, 2006.

On February 27, 2006, the p arties filed Parties Joint

Motion and Stipulation for the Entry of Findings of Fact and

Conclusions of Law in a Recommended Order. The parties

represented the following:

A previous hearing involving the employi ng

school district had been held on May 19 - 20,

2003 before Judge Parrish concerning the

same factual allegations. The parties

expect the same witnesses and evidence will

be used in the presently scheduled hearing

on March 1 - 2, 2006. Therefore, to avoid t he

unnecessary expenditure of time, funds and

judicial effort, the parties agree to

stipulate to the following Findings of Fact

and Conclusions of Law for inclusion by the

Administrative Law Judge in his Recommended

Order to the Education Practices Commiss ion

. . . .”

Based upon the foregoing, the parties requested in their

Joint Motion the following:

1. An order be entered approving the

Joint Stipulation of the above Findings of

Facts and Conclusions of Law;

2. That the he aring scheduled for

March 1 - 2, 2006 be cancelled;

3. That the parties be provided ten (10)

days from entry of order approving Joint

Stipulation, in which to submit their

recommendations for a proposed penalty for

inclusion in the Recommended Order; and

4. A Recommended Orde r be issued adopting

the Jointly Stipulated Findings of Fact and

Conclusions of Law, in addition to a

recommended penalty.

By Order entered February 28, 2006, the final hearing scheduled

for March 1 and 2, 2006, was cancelled. By an Order Accepting

Stipu lation and Setting Time for Filing Proposed Orders, the

Joint Stipulation of Findings of Fact and Conclusions of Law was

accepted and the parties were given until March 20, 2006, to

file proposed recommended orders. With the entry of this

Recommended Orde r, all of the relief requested by the parties in

their Joint Motion has been granted.

On March 20, 2006, Petitioner filed a Proposed Recommended

Order for Appropriate Penalty and Respondent filed Respondent’s

Proposed Recommended Order. Both post - hearing submittals have

been fully considered.

On March 31, 2006, Petitioner, by Notice of Filing, filed a

copy of the Transcript of the hearing in the DOAH case between

Respondent and the Broward County School Board, DOAH Case No.

02 - 4759, and a copy of the Trans cript of Respondent's deposition

testimony in this case. These documents were not stipulated to

as admissible evidence in the Parties Joint Motion and

Stipulation for the Entry of Findings of Fact and Conclusions of

Law . Therefore, the Transcripts have n ot been considered in

entering this Recommended Order.

FINDINGS OF FACT 2

1. Petitioner filed his A dministrative Complaint on

July 27, 2004 , alleging certain material allegations and

Statutory and Rule violations and seeking an appropriate penalty

pursuant to the authority provided to the Education Practices

Commission in Section s 1012.795(1) and 1012.796(7), Florida

Statutes. Respondent filed her Election of Rights and requested

a forma l hearing on August 23, 2004. T he parties ’ previous

attempt at resolv ing this matter m et without success, and a

formal hearing was requested which w as scheduled for March 1 and

2, 2006.

2. At all times material to the allegations of this case,

Respondent, Harriett Parets, was employed as an elementary

school teacher in the Broward County School District.

3. Respondent holds Florida Educator’s Certificate Number

592721. Her certificate covers the areas of elementary

education and English for Speakers of Other Languages. It is

valid through June 30, 2008.

4. Prior to the incidents complained of in this cause,

Respondent taught in the Broward County School District witho ut

discipline for six years. Respondent was in her seventh year

with the system when the allegations of this case arose.

5. Respondent had no prior discip linary concerns.

6. Respondent had received satisfactory evaluations every

year.

7. Respondent had administered the Florida Comprehensive

Assessment Test ( FCAT ) on fiv e prior occasions without incident.

8. During the 2002 school year Respondent was assi gned to

teach fourth grade at McNab Elementary School (McNab). Her

class was scheduled to take the FCAT on M arch 11 through 13,

2003.

9. Prior to the dates of testing, teachers at McNab were

instructed to view a resource video. The video instructed and

directed the teachers in the administration of the FCAT. It

included information not previously addressed by the video.

10. Additionally, teachers at McNab were provided testing

procedures to guide the administration of the FCAT. Teachers

were to follow specifically worded texts in the directions

provided to their students. A verbatim reading of the text was

required by the F CAT testing protocols. Additional comments

outside the text were prohibited.

11. Teachers at McNab were advised on the importanc e of

the FCAT results, the requirement of adhering to the testing

protocols, and the opportunities available to the school should

McNab students perform well on the FCAT.

12. In fact, as McNab had received an “A” rating in the

past (following good FCAT re sults), the school had received

special funding tied to that performance.

13. In connection with the FCAT testing at issue herein,

McNab administrator s took precautions to provide test

administrators with the schedule of th e exam dates, the

materials need ed to administer the test, and training in the

proper administration of the FCAT. Testing protocols were

reviewed.

14. Proctors also received training regarding the

administration of the exam. Each class was assigned a proctor

along with the teacher who was primarily responsible for the

test administration.

15. In this case, the proctor and several students

verified comments from Respondent that deviated from the

scripted instructions.

16. Contrary to the scripted instructions Respondent

looked at the students’ test booklets, told more than one

student to re - exam ine their work for errors, and pointed out a

wrong answer. Respondent announced to the class as a whole that

she was “seeing a lot of wrong answers.”

17. The Respondent was not authorized to m ake comments

during the administration of the test. More important, the

Respondent was not permitted to assist by any means the students

who were taking the FCAT.

18. Respondent admitted that she did not watch the FCAT

training video (known in this recor d as the BECON video).

Respondent knew or should have known that she had been directed

to watch the video.

19. Respondent admitted that she made comments to students

that were beyond the scripted instructions provided in the

teacher’s testing manual.

20. The issues of Respondent’s comments to the class and

the level of assistance she had provided to students came to

light when a student told her mother of Respondent’s conduct.

The mother then contacted a school administrator to make the

alleged impropri eties known.

21. After determining that Respondent had assisted

students in her class, administrators invalidated the test

results from Respondent’s class.

22. As a result of the invalidation, the school did not

have a sufficient number of test results t o qualify as a n “A”

performing school under the state guidelines. Had the results

from R espondent’s class been included , the school might have

qualified and received recognition as it had in the past.

23. F ollowing a formal hearing on the identical facts , the

school district suspended Respondent for thirty (30) days.

24. Respondent has proctored the FCAT every year since the

incident, including this year, without problem.

25. T he District found that a 30 - day suspension plus

training was sufficient disci pline.

CONCLUSIONS OF LAW 3

A. Stipulated Conclusions .

26 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569 and 120.57(1) , Fla . Stat .

27. Petitioner bears the burden of proof in this case to

establish the allegations in the Administrative Complaint by

clear and convincing evidence. Petitioner has met that burden.

28. Section 228.301, Florida Statutes, governs FCAT

security and prohibits anyone from coaching students or

assisting them in any manner in the administration of the exam.

29. Additionally, Florida Administrative Code Rule 6A -

10.042 prohibits interfering “in any way” with persons who are

taking the FCAT in order to assist their performance. Clearly,

Responden t inappropriately assisted students in her classroom.

Had she watched the BECON video or more closely read the FCAT

manual, she would have known that the comments and actions she

made were inappropriate. The importance of test security was

well known to all teachers.

30. By deciding to only suspend Responden t (as opposed to

dismissal), Petiti oner has recognized her past contribution to

the school district. That Respondent blames others for her

violation of testing protocols is regrettable. P et itioner h as

established that Respondent violated testing protocols and

should be disciplined.

31. Respondent has violated the statutory rule violations

alleged in Counts 1 through 4 of the Administrative Complaint.

B. Other Conclu s ions .

32 . Section 1012.795(1), Florida Statutes, gives the

E ducation Practices Commission (hereinafter referred to as the

“E PC ”) the power to suspend or revoke the teaching certificate

of any person, either for a set period of time or permanently,

or to impose any penalty provided by la w, if he or she is guilty

of certain acts specified in the statute.

33 . The Commissioner has alleged in Count 1 of the

Administrative Complaint that Respondent violated Section

1 012.795(1)(c), Florida Statutes; in Count 2, that Respondent

violated Section 1 012.795(10(f), Florida Statutes; and in

Count 3 , that Respondent violated Section 1012.795(1)(i),

Florida Statutes.

34 . Section 1012.795(1)(c), Florida Statutes, provides

that a teacher may be disciplined if he or she "[h]as been

guilty of gross immoral ity or an act involving moral turpitude."

35. Section 1012.795(1)(f), Florida Statutes, provides

that a teacher may be disciplined if he or she “has been found

guilty of personal conduct which seriously reduces that person’s

effectiveness as an employee of the district school board.”

36. Section 1012.795(1)(i), Florida Statutes, provides

that a teacher may be disciplined if he or she “[h]as violated

the Principles of Professional Conduct for the Education

Profession prescribed by State Board of Education rules.” The

Principles of Pr ofessional Conduct for the Educ ation Profession

in Florida (hereinafter referred to as the "Principles") are set

out in Florida Administrative Code Chapter 6B - 1.006. Having

failed to reference any particular part of the Princ iples, it is

assumed that the allegations of Count 4 are intended to refer to

the actual portion of the Princip les Respondent violated.

Count 4 charges that Respondent violated Florida Administrative

Code Rule 6B - 1.006(3)(a), which requires that teachers “make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student’s mental and/or physical

health and/or safety.”

37. Given the parties ’ stipulation that “Respondent has

violated the statutory rule violations alleged in Counts 1

through 4 of the Administrative Complaint , ” the only issue which

remains to be decided in this case is the appropriate penalty.

In recommending a penalty, however, the extent to which the

facts stipulated to by the parties actually support s t heir

stipulation as to the statutory and rule violations must be

considered. In particular, the Commission should take into

account that the facts actually do not support the conclusion

that Respondent violated Section 1 012.795(1)(c), Florida

Statutes, th e basis for the alleged violation in Count 1.

3 8 . The terms "gross immorality" and "an act involving

moral turpitude" are not defined in Chapter 1012, Florida

Statutes. See Sherburne v. School Board of Suwannee County , 455

So. 2d 1057 (Fla. 1st DCA 1984) . Florida Administrative Code

Rule 6B - 4.009, which applies to dismissal actions initiated by

school boards against instructional personnel, does, however,

provide guidance as to the meaning of the terms as they are used

in Section 1012.795, Florida Statut es. See Castor v. Lawless ,

1992 WL 880829 *10 (EPC Final Order 1992).

3 9 . Florida Administrative Code Rule 6B - 4.009(2 ) defines

"immorality" as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

40 . "Gross immorality" has been defined by the courts a s

misconduct that is more egregious than mere "immorality":

The term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitu tes a

flagrant disregard of proper moral

standards." Education Practices Commission

v. Knox , 3 FALR 1373 - A (Department of

Education 1981).

Frank T. Brogan v. Eston M ansfiel d, DOAH Case No. 96 - 0286 (EPC

Final Order 1996).

41 . Florida Administrative Code Rule 6B - 4.009(6 ) defines

"moral turpitude" as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and social duties, which,

according to the accepted standards of the

time a man owes to his or h er fellow man or

to society in general, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

42 . The court in State ex rel. Tullidge v. Hollingsworth ,

146 So. 660, 661 (1933), observed that moral turpitude :

involv es the idea of inherent baseness or

depravity in the private social relations or

duties owed by man to man or by man to

society. . . . It has also been defined as

anything done contrary to justice, honesty,

principle, or good morals, though it often

invol ves the question of intent as when

unintentionally committed through error of

judgment when wrong was not contemplated.

4 3 . In determining whether any teacher is guilty of gross

immorality or an act involving moral turpitude in violation of

Section 1012. 795(1)(c), Florida Statutes, it must be remembered

that "[b]y virtue of their leadership capacity, teachers are

traditionally held to a high moral standard in a community."

Adams v. Professional Practices Council , 406 So. 2d 1170, 1171

(Fla. 1st DCA 1981) .

4 4 . The acts committed by Respondent in this case were not

sufficiently egregious to constitute gross immorality or acts

involving moral turpitude. Respondent’s conduct, while

inconsistent with the conduct expected of a teacher

administering the FCAT, does not constitute an act " . . . which

constitutes a flagrant disregard of proper moral standards" or

an act of "inherent baseness or depravity in the private social

relations or duties owed by man to man or by man to society."

45. As for the violation of Section 1012.795(1)(f),

Florida Statutes, while the parties have stipulated that

Respondent's conduct reduced her effectiveness as an employee of

the School Board, the facts show that the School Board has

considered Respondent's effectiveness as an empl oyee adequate to

co ntinue her in its employment and to continue allowing her to

administer the FCAT.

4 6 . While clearly inappropriate conduct on the part of the

Respondent, her conduct barely constitutes a violation o f the

other statutory violation alleged in Count 3.

C. Recommended Penalty .

4 7 . Section 1012.795(1), Florida Statutes, gives the EPC

the following disciplinary authority:

The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01 (2) or (3)

for a period of time not to exceed 5 years,

thereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students for that period of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the

educator certificate of any person, thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring d irect contact with students for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwi se be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or may

impo se any other penalty provided by law, .

. . provided it can be shown that the perso n

[violated one of the subsections that

follow].

48 . In its Proposed Recommended Order for Appropriate

Penalty, Petitioner has requested that it be recommended that

Respon dent’s certificate be permanently revoked and that she be

permanently barred from re - application. Respondent has

requested that it be recommended that Respondent’s 30 - day

suspension by the Broward County School Board (hereinafter

ref erred to as the “Schoo l Board”) serve as her penalty in this

case. In the alternative, Respondent has suggested that a one -

year period of probation be added to the already served

suspension.

4 9 . In deciding the appropriate penalty to recommend in

this case, consideration has been given to Florida

Administrative Code Rule 6B - 11.007(3), which provides

aggravating and mitigating circumstances to be considered in

determining the appropriate penalty in a case such as this:

(3) Based upon consideration of

aggravating and mitigati ng factors present

in an individual case, the Commission may

deviate from the penalties recommended in

subsection (2). The Commission may consider

the following as aggravating or mitigating

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of

offenses;

(d) The length of time since the

violation;

(e) The number of times the edu cator has

been previously disci plined by the

Commission.

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator’s livelihood;

(j) Any effort of rehabilitat ion by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct

or stop the violation or refusal by the

licensee to correct or stop the violation;

(n) Rel ated violations against the

educator in another state including findings

of guilt or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related

offenses unde r subsection (2) above;

(q) Pecuniary benefit or self - gain

inuring to the educator;

(r) Degree of physical and mental harm to

a student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including reco very from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

50 . Based upon the facts stipulated to by the parties, the

following mitigating circumstances exist: the offense in this

case is a single, isolated one; the actual danger to the public

in this incident was minimal; it has been three years since the

violation occurred (and in the interim, Respondent has continued

to monitor the FCAT without incident); and Respondent has not

been previously disciplined by the EPC .

5 1 . The following aggravating circumstances have been

shown to exist: Respondent actions deprived students of the

educational process, likely resulting in the loss of school

funding and hindering the school’s ratings; and a harsh penalty

wi ll send the message that Respondent’s conduct will not be

tolerated.

5 2 . Petitioner has argued that an additional aggravating

circumstance is the failure of any evidence that Respondent has

been rehabilitated. In particular, Petitioner has suggested

that Respondent lacks any rehabilitation because she has

“consistently accused other individuals, including the FCAT’s

administrators and supervisors, for her misdeeds rather than

accepting the blame.” Petitioner’s argument on this point must

be rejected. Fi rst, there is no stipulated fact or any evidence

that has been offered in this case to support Petitioner’s

position. Secondly, Petitioner has failed to consider the fact

that Respondent has agreed to the stipulated facts and law which

form the basis of this Recommended Order.

5 3 . Ultimately, in recommending a penalty in this case,

the most important consideration s in this matter should be the

extent to which Respondent actually violated the provision

alleged in the Administrative Complaint , which has b een

addressed, supra , and the action taken by Respondent’s employer,

the School Board.

54. The extent to which Respondent actually violated the

provisions alleged in the Admini strative Complaint has been

discussed, supra .

55. Just as significantly, t he S chool Board, which, along

with the parents and children it serves, suffered the actual

harm of Respondent’s conduct, concluded that Respondent was

adequately punishe d by a 30 - day suspension rather than

termination of her employment. The School Board, ther efore, has

indicated a willingness to continue to employ Respondent,

something it will no longer be able to do if Petitioner’s

recommended penalty is carried out. Nor will the School Board

be able to continue Respondent’s employment if Petitioner were

to suspend Respondent’s certificate for any period of time.

5 6 . Given the School Board’s decision to continue to

employ Respondent, any discipline taken by Petitioner should be

limited to discipline which will not thwart the local

government’s decision to co ntinue to employ Respondent. A

suspension of 30 days, considered already served at the time she

served her School Board imposed suspension ; five years

probation; and a requirement that Respondent attend, at her own

expense, any seminars or courses the EPC deems appropriate is an

appropriate penalty in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDE D that a final order be entered imposing the

following penalty: (1) suspending her teaching certifica te for

30 days, such suspension to be considered already served; (2)

placing her on probation for five years subject to any

conditions deemed appropriate by the EPC ; and (3) requiring her

to attend, at her own expense, any seminars or courses the EPC

deems appropriate.

DONE AND ENTERED this day 4th day April of , 2006 , in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

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

t his 4th day of April , 200 6 .

ENDNOTES

1 / Jim Horne was the Commissioner of Education at the time the

Administrative Complaint in this case was entered . The style of

this case has been changed to reflect the current Commissioner

of Education.

2/ Findings of Fact 1 through 25 are those stipulated to by the

parties.

3/ Conclusions of Law 26 through 31 are those stipulated to by

the parties.

COPIES FURNISHED:

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Mathew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A.

The Barrister’s Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

224 - E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 3 2399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

32 5 West Gaines Street

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 b e filed with the agency that

will issue the Final Order in this case.