06-001073 Miami-Dade County School Board vs. Michael Spivey Status: Closed Recommended Order on Wednesday, February 28, 2007.

Summary: The charges that Respondent did not engage in any "academic effort" to earn colleges credits that were used to renew his teaching certificate were not proven. Recommend reinstatement with back pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 06 - 1073

)

MICHAEL SPIVEY , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

October 16, 2006, by video teleconference at sites in Miami and

Tallah assee, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark F. Kelly, Esqu ire

Kelly & McKee, P.A.

P.O. Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Notice of Specific Charges and, if so, what disciplinar y action

should be taken against him.

PRELIMINARY STATEMENT

On March 15, 2006, the Miami - Dade County School Board

(School Board) took action to suspend Respondent from his

teaching position and initiate dismissal proceedings against

him. By letter dated M arch 20, 2006, Respondent "request[ed] a

hearing to be held before an administrative law judge" on the

matter. Respondent's hearing request was referred to DOAH on

March 24, 2006.

On April 19, 2006, the School Board filed a Notice of

Specific Charges (Not ice). The Notice contained the following

Statement of Facts:

Statement of Facts

5. The School Board has employed Spivey

since August 1979.

6. Spivey was originally employed by the

School Board [as] an hourly teacher.

7. In November 1980, Spivey was hired as

[a] full - time Teacher. He was assigned to

Miami Norland Middle School. From August

1988 until his suspension without pay, he

was assigned to Myrtle Grove Elementary

School.

8. Spivey admitted that he paid for and

received transcripts for colle ge credit from

Eastern Oklahoma State College and submitted

those transcripts to the District for the

purpose of receiving or renewing a teaching

certificate.

9. Spivey's alleg[ations] that he completed

midterm and final exams and performed

presentations as evidence of academic effort

lack credibility in light of conflicting

information that no exams or coursework was

required by the instructor.

Count I of the Notice alleged that "Spivey's admission that he

accepted and reported college credits that were not earned

through academic effort does not reflect credit upon himself or

the community and violates School Board Rule 6Gx13 - 4A - 1.21 ."

Count II of the Notice alleged that "Spivey has demonstrated a

lack of good moral character by admitting he accepted c ollege

credit[s] and reported them without engaging in any academic

effort" and that therefore his "actions violate [S]ection

1012.32, Florida Statutes." Count III of the Notice alleged

that "Spivey's actions constitute a violation of the School

Board Rul e 6Gx13 - []1.213, as well as Rule 6B - 1 . 001 and Rule 6B -

1.006, Florida Administrative Code , " and that these violation s

"constitute[] just cause for termination." Count IV of the

Notice alleged that "Spivey's violation of the code of ethics

[referenced in Co unt III of the Notice] constitutes misconduct

in office and constitutes just cause for termination."

On July 11, 2006, the parties filed a Joint Prehearing

Stipulation, which contained, among other things, Respondent's

admission that the allegations set fo rth in paragraphs 5 through

8 of the Notice's Statement of Facts were true .

The final hearing in this case was held, as noted above, on

October 16, 2006. 2 Five witnesses testified at the hearing:

Respondent, Oliver Ashley, Leonard Walencikowski, 3 Charlen e

Burks, and Lucy Iturrey. In addition, 27 exhibits (Petitioner's

Exhibits 1 through 22 and 24, and Respondent's Exhibits 1

through 4) were offered and received into evidence. At the

close of the evidentiary portion of the hearing on October 16,

2006, th e undersigned established a deadline (30 days from the

date of the filing of the hearing transcript with DOAH) for the

filing of proposed recommended orders.

The Transcript of the final hearing (which consists of one

volume) was filed with DOAH on January 11, 2007.

On February 13, 2007, the School Board, on behalf of both

parties, filed a motion requesting an extension of the deadline

for filing proposed recommended orders. The motion was granted

later that same day.

The School Board and Respondent both filed their Proposed

Recommended Orders on February 21, 2007.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) in Miami - Dade County, Florida (including, among others,

Miami Palmetto Senior High School (Palmetto) and Myrtle Grove

Elementary School (Myrtle Grove) ) and for otherwise providing

public instruction t o school - aged children in the county.

2. At all times material to the instant case, Palmetto was

the site from where William McCoogle, Ph.D., a physical

education teacher and basketball coach at the school, operated

his own privately - run continuing educat ion enterprise, Moving on

Toward Education and Training (M.O.T.E.T.), which offered

courses, including physical education courses, for which

teachers could receive college credit.

3. Respondent has been employed by the School Board as a

physical educati on teacher since August 1979, when he was hired

to teach part - time. He began teaching on a full - time basis in

November 1980. Prior to his suspension and the initiation of

this termination proceeding, he was assigned to Myrtle Grove,

where he had been tea ching since 1988.

4. As a School Board employee, Respondent is expected to

conduct himself in accordance with School Board rules, including

School Board Rules 6Gx13 - 4A - 1.21 and 6Gx13 - 1.213.

5. At all times material to the instant case, School Board

Rule 6Gx13 - 4A - 1.21 I has provided as follows:

Permanent Personnel

RESPONSIBILITIES AND DUTIES

I. Employee Conduct

All persons employed by The School Board of

Miami - Dade County, Florida are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the presence of

student s is expressly prohibited.

6. At all times material to the instant case, School Board

Rule 6Gx13 - 4A - 1.213 has provided, in pertinent part, as follows:

Permanent Personnel

CODE OF ETHICS

I. INTRODUC TION

All . . . teachers . . . , because of their

d ual roles as public servants and educators

are to be bound by the following Code of

Ethics. Adherence to the Code of Ethics

will create an environment of honesty and

integrity and will aid in achieving the

common mission of providing a safe and high

quali ty education to all Miami - Dade County

Public School students.

As stated in the Code of Ethics of the

Education Profession in Florida (State

Board of Education Rule 6B - 1.001):

1. The educator values . . . the pursuit of

truth . . . .

2. . . . . The ed ucator . . . will seek to

exercise the best professional judgment and

integrity.

3. Aware of the importance of maintaining

the respect and confidence of one' s

colleagues, students, parents, and other

members of the community, the educator

strives to achi eve and sustain the highest

degree of ethical conduct.

* * *

II. APPLICATION

This Code of Ethics applies to all . . .

teachers . . . .

Employees are subject to various other laws,

rules, and regulations, including but not

lim ited to " The Code of Ethics for the

Education Profession in Florida and the

Principles of Professional Conduct of the

Education Profession in Florida ," Chapter

6B - 1.001 and 1.006, F.A.C., . . . which are

incorporated herein by reference and this

Code of Et hics should be viewed as additive

to these laws, rules and regulations. . . .

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

- Honesty – Dealing truth fully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

- Integrity – Standing up for your beliefs

about what is right and what is wrong and

resisting social pressure to do wrong.

* * *

- Responsibility – Thinking before you act

and being accountable for your

actions . . . .

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well - being of the students and the

honest performance of professional duties

core guiding principles.

2. To obey local, state and national laws,

codes and regulations.

* * *

5. To take responsibility and be

accountable for his or her actions.

* * *

7. As an instructional em ployee of the School Board,

Respondent is a member of a collective bargaining unit

represented by the United Teachers of Dade (UTD) and covered by

a collective bargaining agreement between the School Board and

UTD (UTD Contract).

8. Article V of the UTD Contract addresses the subject of

"[e]mployer [r]ights."

9. Section 1 of Article V provides, in part, that the

School Board has the exclusive right to suspend, dismiss or

terminate bargaining unit employees "for just cause."

10. Article XXI of the U TD Contract addresses the subject

of "[e]mployee [r]ights and [d]ue [p]rocess."

11. Section 2 of Article XXI provides, in part, that

"[d]ismissals and suspensions shall be effected in accordance

with applicable Florida Statutes, including the Administr ative

Procedures Act (APA) . . . ."

12. Respondent "first heard of Dr. McCoogle" at a ph ysical

education workshop when colleagues mentioned that Dr. McCoogle

"taught out - reach independent [college credit physical

education] courses" on weekends at Palmett o (a time and location

that we re "convenient for [Respondent] " ).

13. S ome time after the workshop, while at Palmetto to

referee a basketball game, Respondent introduced himself to

Dr. McCoogle, who gave Respondent his M.O.T.E.T. business card .

14. In or about November 2002, Respondent decided that he

wanted to take the six credit hours of college coursework in

physical education that he needed to renew his teaching

certificate . It was two years before he was due to be

recertified, but he wanted to "take the courses early."

15. Having had spoken t o " n umerous . . . people" who had

recommended "taking [recertification] courses through

[Dr.] McCoogle" at Palmetto, Respondent contacted Dr. McCoogle

by telephone to express his interest in pursuing such

course work.

16. In accordance with the instructions that he had been

given by Dr. McCoogle during their telephone conversation, the

Saturday "right before Thanksgiving" Respondent went to Palmetto

to sign up for the courses he needed to take to be recertified.

17. When he arrived at the school, there were

"num erous . . . people" waiting to speak individually with

Dr. McCoogle. Respondent recognized some of the people there as

School Board instructional employees . One such person was

Oliver Ashley , who has b een employed by the School Board as a

teacher for the past 33 years.

18. After waiting his turn, Respondent "went up to see

Dr. McCoogle . " He told Dr. McCoogle that he needed six cre dit

hours of coursework. Dr. McCoogle then advised Respondent to

regist er for two three - credit physical education courses offered

by Eastern Oklahoma State College 4 through M.O.T.E.T. :

Psychology of Sports I (Course Number 2803) and Organization and

Administration of Physical Education (Course Number 2823).

Respondent ther eupon filled out the paperwork to register for

these two courses (w ith the assistance of a woman whom

Respondent had been told was Dr. McCoogle's wife ). After

completing the paperwork, he gave the woman a "down payment" on

the registration fee . He was to ld that Dr. McCoogle would let

him know at a later date when classes were going to start .

19. Mr. Ashley registered for the same two courses that

Respondent did.

20. There were three other students (aside from Respondent

and Mr. Ashley) enrolled in eac h of these two courses.

21. Leonard Walencikowski was one of the three other

students enrolled in Course Number 2803 along with Respondent

and Mr. Ashley .

22. "Right after the Thanksgiving break," Respondent

received a telephone call from Dr. McCoogle, w ho told him that

classes were "getting ready to start on that Saturday" at

Palmetto and that he should be there at 8:00 a.m.

23. Respondent reported to Palmetto at 8:00 a.m. the

following Saturday. Upon his arrival, h e again observed

"numerous . . . peop le" waiting to speak individually with

Dr. McCoogle. When Respondent's turn came, Dr. McCoogle told

him that he could either take the courses he signed up for

on line or by attending , in person, class es ta ught by

Dr. McCoogle at Palmetto from 8:00 a.m. to 1:00 p.m. on

Saturdays. Respondent indicated that he preferred the latter

course delivery method . (He selected this option because he had

"no computer knowledge . " ) Dr. McCoogle then briefly described

for Respondent what the course requirements were for the two

courses Respondent was taking . This was followed by an "hour or

so" discussion between Dr. McCoogle and Respondent about

coaching and refereeing . Following this discussion, Respondent

departed .

24. Respondent attended all of the required Saturda y

classes for the two courses in which he was enrolled .

25. Students received individual instruction from

Dr. McCoogle in these classes . Each student went up to the

front of the classroom to meet with Dr. McCoogle individually ,

while the other students remained "in the audience . "

26. During each 8:00 a.m. to 1:00 p.m. class session,

Respondent met individually with Dr. McCoogle on two separate

occasions : once to discuss matters relating to Course Number

2803 and again to discuss matters relating to C ourse Number

2823.

27. In addition to attending class and engaging in course -

relevant " one - on - one discussions" with Dr. McCoogle, Respondent

completed all of the assignments that were given for the two

courses .

28. For Course Number 2803, Respondent wro te a term paper

on "why every coach should be a referee and every referee should

be a coach."

29. For Course Number 2823 , Respondent prepared lesson

plans and demonstrated in class , by oral presentation, his

kno wledge of the proper procedures to be follow ed in developing

a lesson plan . He also simulated teaching a lesson on softball

and "produce[d] a [written] test" on the material covered in the

lesson.

30. After he had successfully completed Course Numbers

2803 and 2823 (by doing everything Dr. McCoo gle had asked of

him 5 ) , Respondent went to Palmetto to pay Dr. McCoogle the

balance of the registration fee he owed . Upon Respondent's

doing so, Dr. McCoogle gave him a sealed envelope containing a n

official transcript from Eastern Oklahoma State College

reflecting the grades he had received in the two courses he had

taken through M.O.T.E.T.: a "B" in Course Number 2803 and an

"A" in Course Number 2823. The transcript indicated that these

were "adult continuing education" courses. Dr. McCoogle told

Resp ondent to take the envelope to the School Board's

certification office and submit it, along with a completed

application for renewal of his teaching certificate and a $56.00

application fee, for transmission to the state Department of

Education. Responden t believed that he was eligible to receive

the recertification for which he was applying. Because "so many

others [had taken] classes through [Dr. McCoogle]," Respondent

did not have "any suspicions that the courses [he had taken from

Dr. McCoogle ] at Pal metto 6 were not legitimate . "

31. Respondent ultimately obtained his recertification

from the state Department of Education.

32. A criminal investigation of Dr. McCoogle and his

M.O.T.E.T. program led the School Board police to investigate

the followin g allegation against Respondent:

It is alleged that Mr. Michael Spivey,

Teacher, Miami - Dade County Public Schools

(MDCPS), fraudulently obtained credit(s)

from Eastern Oklahoma State College (EOSC)

through the intricate and un lawful

enterprise of Moving o n [T] oward Education

and Training, Inc. (MOTET), under the

auspices of Mr. William McCoogle. In

essence, the employee paid to obtain

academic credit(s) for the purpose of

certification, re - certification, and/or

endorsements without availing himself of

act ual academic class time, work, or effort.

33. This allegation was "substantiated" by the School

Board police following its investigation .

34. As part of its investigation, the School Board police

interviewed Respondent and asked him, among other things, "if he

had any records or any copies of any classwork or test results

from [the] courses [he had taken from Dr. McCoogle]."

Respondent responded that he had "turned in" all his work to

Dr. McCoogle and "did not have any copies in his possession. "

35. Following the School Board police investigation, the

matter was referred to the School Board's Office of Professional

Standards.

36. On February 23, 2006, Lucy Iturrey of the School

Board's Office of Professional Standards, along with two other

School Boa rd administrators, conducted a conference - for - the -

record (CFR) with Respondent and his UTD representatives to

address the allegation against him that had been "substantiated"

by the School Board police. At the CFR, Respondent, through his

UTD representati ves, indicated that, during the School Board

police investigation, he had told the police that "he had turned

in all of his class work and did not have any copies in his

possession."

37. The School Boa rd's Superintendent of Schools

recommended to the Scho ol Board that it suspend Respondent and

initiate termination proceedings against him "based on the

allegation that he fraudulently obtained and utilized credit(s)

from Eastern Oklahoma State College through Moving On Toward

Education and Training, Inc. (MO TET)."

38. The School Board took such action at its March 15,

2006, meeting.

39. Sometime after the School Board had acted, Respondent,

while going through the many documents he had amassed over his

years with School Board, discovered two lesson plans an d a test

that he had prepared for Course Number 2823 , items he had not

realized were in his possession.

40. He ultimately gave these documents to his attorney,

and they were offered and received into evidence at the final

hearing in this case (as Respond ent's Exhibits 1 through 3).

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

42. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat.

43. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

44. The latter statutory provision, Section 1012.23(1),

Florid a Statutes, grants district school boards the authority to

"adopt rules governing personnel matters."

45. The "rules governing personnel matters" that have been

adopted by the School Board include School Board Rules 6Gx13 -

1.213 (which prescribes a "Code o f Ethics" for School Board

personnel) and 6Gx13 - 4A - 1.21 (dealing with "[r]esponsibilities

and [d]uties").

46. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat. As such, it has the right

"to direct its employees, take disciplinary action for proper

cause, and relieve its employees from duty because of lack of

work or for other legitimate reasons," p rovided it exercises

these powers in a manner that is consistent with the

requirements of law. § 447.209, Fla. Stat.

47. Each district school board employee serving in an

instructional capacity must possess an appropriate teaching

certificate issued by t he Florida Department of Education . See

Bush v. Holmes , 919 So. 2d 392, 410 (Fla. 2006)("[P]ublic school

teachers must be certified by the state."); and § 1012.55(1),

Fla. Stat. ("Each person employed or occupying a position as

school supervisor, school p rincipal, teacher, library media

specialist, school counselor, athletic coach, or other position

in which the employee serves in an instructional capacity, in

any public school of any district of this state shall hold the

certificate required by law and by rules of the State Board of

Education in fulfilling the requirements of the law for the type

of service rendered."). There are four types of teaching

certificates: "the professional certificate, the nonrenewable

professional certificate, the temporary c ertificate, and the

athletic coaching certific ate." Fla. Admin. Code R. 6A -

4.002 (1). "The professional certificate is the highest type of

full - time certificate issued." Fla. Admin. Code R. 6A - 4.004(2).

48. The state Department of Education has been del egated

the authority to "designate the certification subject areas ."

§ 1001.03, Fla. Stat. Among the certification areas that the

Department of Education has designated is p hysical e ducation

( g rades K - 12). See Fla . Admin. Code R. 6A - 4.0283 (which ,

effe ctive July 1, 2003, " supersede [ d ]" the provisions of Fla.

Admin. Code R. 6A - 4.028, which had provided for " Certification

in Physical Education (Grades K - 8) and Physical Education

(Grades 6 - 12)").

49. Once issued, a professional certificate must be

renew ed every five years. See § 1012.56(6)(a), Fla. Stat.; and

Fla. Admin. Code R. 6A - 4.0051(3)(c).

50. Florida Administrative Code Rule 6A - 4.0051 provides

that a professional certificate may be renewed if the

certificate holder "[c]ompletes six (6) semeste r hours of

college credit . . . earned at an accredited or approved

institution or community or junior college as specified in Rule

6A - 4.003, F.A.C.," provided that, for "each course used for the

renewal of [the] cert ificate," a "grade of at least 'C' or t he

equivalent," or a " grade of pass," is "earned . " The "college

credit" that may be used for certificate renewal purposes is

further described in Florida Administrative Code Rule 6A -

4.002(3), which provides as follows:

College credit. College credit used for

educator certification purposes shall be

undergraduate or graduate credit earned at

an accredited or approved institution as

specified in Rule 6A - 4.003, F.A.C. All

college credit shall be computed by semester

hours. One (1) quarter hour of college

c redit shall equal two - thirds (2/3) of one

(1) semester hour. Community and junior

college credit used for educator

certification purposes shall parallel those

of the first and second years of course work

at an accredited or approved institution and

shall be comparable to courses offered at

Florida community and junior colleges which

have been approved by the F lorida Department

of Education.

51. Florida Administrative Code Rule 6A - 4.003(1) describes

those "a ccredited " institutions referred to in Florida

A dministrative Code Rules 6A - 4.002(3) and 6A - 4.0051 . It

provides as follows:

Accredited institutions. Degrees and

credits awarded by an institution of higher

learning accredited by one (1) of the

accrediting associations listed below shall

be acceptable f or educator certification

purposes.

(a) Regional accrediting associations. The

regional accrediting associations are as

follows:

1. The Southern Association of Colleges and

Schools,

2. The Middle States Association of

Colleges and Secondary Schools,

3. The New England Association of Colleges

and Secondary Schools,

4. The North Central Association of

Colleges and Secondary Schools,

5. The Northwest Association of Secondary

and Higher Schools, and

6. The Western Association of Colleges and

Scho ols.

(b) Accrediting agencies approved by the

United States Department of Education.

52. Florida Administrative Code Rule 6A - 4.003 (2 ) describes

those "approved" institutions referred to in Florida

Administrative Code Rules 6A - 4.002(3) and 6A - 4.0051 . It

provides as follows:

Nonaccredited approved institutions. A non -

accredited approved institution of higher

learning shall be identified as having a

quality program resulting in a bachelor's or

higher degree by one (1) of the following

criteria:

(a) T he institution is accepted for

certification purposes by the state

department of education where the

institution is located,

(b) The institution holds a certificate of

exemption pursuant to Section 1005.06,

Florida Statutes,

(c) The institution is a ne wly created

Florida public college or university that

offers a bachelor's or higher degree

program,

(d) The institution is located outside the

United States and awards a degree that is

the equivalent to a bachelor's or higher

degree awarded by an accredi ted or approved

institution in the United States. Isolated

credit will be acceptable for certification

purposes provided the credit is the

equivalent of college credit earned in the

United States, or

(e) The degree from the institution was

accepted by an accredited or approved

institution either in transfer or as a basis

for admission into the graduate program

which resulted in the conferral of a higher

degree. An applicant who holds a valid

standard educator's certificate issued by a

state other than Fl orida which may be used

to satisfy the eligibility requirements for

a professional certificate as described in

Sections 1012.56(1) and (2), Florida

Statutes, or to demonstrate mastery of

subject matter knowledge as in Section

1012.56(4), Florida Statutes, is considered

to have met the requirements of this rule. [ 7 ]

53. At all times material to the instant case, district

school boards have had the right, under Section 1012.33 (4) ,

Florida Statutes, to dismiss continuing contract teachers "based

on immorality , misconduct in office, incompetency, gross

insubordination, willful neglect of duty, drunkenness, or

conviction of a crime involving moral turpitude, as these terms

are defined by rule of the State Board of Education."

54. At all times material to the in stant case,

"immorality " and "misconduct in office" have been defined by

rule of the State Board of Education (specifically Florida

Administrative Code Rule 6B - 4.009, "Criteria for Suspension and

Dismissal") as follows:

(2) Immorality is defined as condu ct 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 t he community.

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

55. The Code of Ethics of the Education Profession (set

forth in Florida Administrative Code Rule 6B - 1.001), at all

times material to the instant case , has provided as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards a re the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive fo r professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the e ducator

strives to achieve and sustain the highest

degree of ethical conduct.

56. The Principles of Professional Conduct for the

Education Profession in Florida (set forth in Florida

Administrative Code Rule 6B - 1.006), at all times material to the

instan t case, have required a teacher to, among other things,

"not intentionally distort or misrepresent facts concerning an

educational matter in direct or indirect public expression"; to

"maintain honesty in all professional dealings"; to "not

misrepresent one 's own professional qualifications"; and to "not

submit fraudulent information on any document in connection with

professional activities."

57. "Immorality" and "m isconduct in office" may be

established, even in the absence of "specific" or "independent"

evidence of impairment, where the conduct engaged in by the

teacher is of such a nature that it "speaks for itself" in terms

of its seriousness and its adverse impact on the teacher's

effectiveness. In such cases, proof that the teacher engaged in

the con duct is also proof of impaired effectiveness. See Purvis

v. Marion County School Board , 766 So. 2d 492, 498 (Fla. 5th DCA

2000); Walker v. Highlands County School Board , 752 So. 2d 127,

128 - 29 (Fla. 2d DCA 2000); Summers v. School Board of Marion

County , 666 So. 2d 175, 175 - 76 (Fla. 5th DCA 1995); Brevard

County School Board v. Jones , No. 06 - 1033, 2006 Fla. Div. Adm.

Hear. LEXIS 287 *17 (Fla. DOAH June 30, 2006)(Recommended

Order)("[T]he need to demonstrate 'impaired effectiveness' is

not necessary in inst ances where the misconduct by a teacher

speaks for itself, or it can be inferred from the conduct in

question."); and Miami - Dade County School Board v. Lefkowitz ,

No. 03 - 0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 *23 - 24 (Fla.

DOAH July 31, 2003) (Recommended Order) ("The School Board failed

to prove by a preponderance of the direct evidence that

Mr. Lefkowitz's actions were so serious that they impaired his

effectiveness as a teacher. Nonetheless, based on the findings

of fact herein, it may be inferred that Mr. Lefkowitz's conduct

impaired his effectiveness as a teacher in the Miami - Dade County

public school system.")(citation omitted) . A teacher's engaging

in deceitful or dishonest conduct to obtain or renew a teaching

certificate is an example of such cond uct that "speaks for

itself." See Broward County School Board v. Sapp , No. 01 - 3803,

2002 Fla. Div. Adm. Hear. LEXIS 1574 *16 (Fla. DOAH

September 24, 2002) (Recommended Order) ("[A]s a teacher and

coach, Sapp was required to be a role model for his students .

To be effective in this position of trust and confidence, he

needed to maintain a high degree of trustworthiness, honesty,

judgment, and discretion. ").

58. "Under Florida law, a [district] school board's

decision to terminate an employee is one affecti ng the

employee's substantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute." 8 Sublett , 617 So. 2d at 377.

59. The teacher must be given written notice of the

specif ic charges prior to the hearing. Although the notice

"need not be set forth with the technical nicety or formal

exactness required of pleadings in court," it should "specify

the [statute,] rule, [regulation, or policy] the [district

school board] alleges has been violated and the conduct which

occasioned [said] violation." Jacker v. School Board of Dade

County , 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,

concurring).

60. The teacher may be suspended without pay pending the

outcome of the term ination proceeding; " but, if the charges are

not sustained, [the teacher] shall be immediately reinstated,

and his or her back salary shall be paid. " § 1012.33(4)(c ),

Fla. Stat.

61. At the termination hearing, the burden is on the

district school board t o prove the allegations contained in the

notice. Unless there is a collective bargaining agreement

covering the bargaining unit of which the teacher is a member

that provides otherwise 9 (and there is not such a collective

bargaining agreement controlling the instant case), the district

school board's proof need only meet the preponderance of the

evidence standard. See McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears

the burden of proving, by a prepond erance of the evidence, each

element of the charged offense which may warrant dismissal.");

Sublett v. Sumter County School Board , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995)("We agree with the hearing officer that for

the School Board to demonstrate just ca use for termination, it

must prove by a preponderance of the evidence, as required by

law, that the allegations of sexual misconduct were

true . . . ."); Allen v. School Board of Dade County , 571 So. 2d

568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing

officer and the School Board correctly determined that the

appropriate standard of proof in dismissal proceedings was a

preponderance of the evidence. . . . The instant case does not

involve the loss of a license and, therefore, Allen's losses are

adequately protected by the preponderance of the evidence

standard."); and Dileo v. School Board of Dade County , 569 So.

2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required

quantum of proof in a teacher dismissal case is clear and

convincing evi dence, and hold that the record contains competent

and substantial evidence to support both charges by a

preponderance of the evidence standard.").

62. In determining whether the district school board has

met its burden of proof, it is necessary to evalu ate the

district school board's evidentiary presentation in light of the

specific allegation(s) made in the written notice of charges.

Due process prohibits a district school board from terminating a

continuing contract teacher based on matters not specif ically

alleged in the notice of charges, unless those matters have been

tried by consent. See Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for

He alth Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999).

63. In the instant case, the School Board has alleged in

its Notice that " just cause " exists to terminate Respondent's

employment as a continuing contract teacher with the School

Board becau se he " paid for and received transcripts for college

credit from Eastern Oklahoma State College and submitted those

transcripts to the District for the purpose of receiving or

renewing a teaching certificate" "without engaging in any

academic effort." Acc ording to the Notice, by engaging in this

conduct, Respondent violated School Board Rule 6Gx13 - 4A - 1.21

(Count I); demonstrated a lack of the "good moral character"

required by Section 1012.32(1), Florida Statutes, which

provides, in pertinent part, that, " to be eligible for

appointment in any position in any district school system, a

person shall be of good moral character" (Count II) ; violated

School Board Rule 6Gx13 - 1.213 (Count III); and was guilty of

"misconduct in office" (Count IV).

64. The preponde rance of the record evidence does not

support these allegations of wrongdoing.

65. Central to the School Board's case against Respondent

is its allegation that the Eastern Oklahoma State College

credits Respondent used to renew his teaching certificate we re

obtained "without [his having] engag [ed] in any academic

effort . "

66. In the testimony he gave at the final hearing,

Respondent denied this allegation and des cribed his "academic

effort" in the two courses for which he received these credits .

67. O liver Ashley was the only other person with personal

knowledge of what students in these courses did to earn credits

to testify at the final hearing about the matter. 10 Although he

was called to the stand by the School Board, Mr. As h ley's

testimony undermi ned , rather than support ed , the School Board's

case. Mr. Ashley testified that, as a student in these courses,

he "did various types of lesson plans," made "in - class

presentations . . . on some the lesson plans [he] did," and "did

a paper." Mr. Ashley m ay not have corroborate d everything

Respondent testified to regarding what "academic effort" he

(Respondent) made in these courses , but Mr. Ashley's testimony

nonetheless ( like Respondent's ) unequivocally refuted the

factual premise underlying the School B oard's prosecution of

Respondent -- that being that Respondent put forth no "academic

effort" whatsoever.

68. The School Board did present evidence of what

Dr. McCoogle and others who did not testify at hearing had

reportedly said during investigative int erviews about the lack

of "academic effort going on" in the courses Dr. McCoogle

offered on behalf of Eastern Oklahoma State College. This

hearsay testimony, however, even assuming that it would be

admissible over objection in a civil proceeding and there fore

legally sufficient to support a finding of fact in this

administrative proceeding , 11 is not sufficiently persuasi ve to

outweigh the combined effect of the credible testimony to the

contrary given by Respondent and Mr. Ashley, both of whom ,

unlike Dr. M cCoogle and the other hearsay declarants , testified

under oath before the undersigned ( who therefore was able to

observe their demeanor ) and were subjected to cross - examination.

69. No t having established by a preponderance of the

evidence the underlyin g factual premise upon which the

allegations of wrongdoing made in the Notice are based (to wit:

that Respondent engaged in no "academic effort " to earn the

credits reflected on the official Eastern Oklahoma State College

transcript he submitted as part o f the recertification

application process ) , the School Board must immediately

reinstate Respondent with back pay, in accordance with Section

1012.33(4)(c) , Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, i t is hereby

RECOMMENDED that the School Board issue a final order

dismissing the charges against Respondent and reinstating him

with back pay.

DONE AND ENTERED this 2 8 th day of February , 2007 , in

Tallahassee, Leon County, Florida.

S

__________________ _________________

STUART M. LERNER

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 wit h the Clerk of the

Division of Administrative Hearings

this 2 8 th day of February, 2007 .

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2006).

2 The hearing w as originally scheduled to commence on July 17,

2006, but was continued (for good cause) at Respondent's

request.

3 Mr. Walencikowski was called to testify by the School Board.

After stating his name and testifying that he had been a School

Board employ ee from 1968 until June 3, 2005, he refused to

answer any additional questions on Fifth Amendment grounds. The

School Board did not seek to have Mr. Walencikowski directed to

answer the questions it posed.

4 This was "the first [Respondent] had heard" o f Eastern

Oklahoma State College.

5 What, if any, minimum course requirements Eastern Oklahoma

State College (as opposed to Dr. McCoogle) had established for

Course Numbers 2803 and 2823 , the evidentiary record does not

establish.

6 That Dr. McCoogle operated his courses on School Board

property added to their appearance of legitimacy.

7 Inasmuch as Respondent's application for recertification was

granted, it would appear that the Department of Education, in

evaluating the application, determined tha t Eastern Oklahoma

State College was either an "accredited institution" or a

"n onaccredited approved institutio n," as described in Florida

Administrative Code Rule 6A - 4.003 . The record is devoid of any

evidence that this determination made by the Departme nt of

Education was erroneous.

8 "A county school board is a state agency falling within

Chapter 120 for purposes of quasi - judicial administrative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

9 Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672 - 73 (Fla. 1993) ("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles o f contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); and Palm Beach County School

Board v. Auerbach , No. 96 - 3683, 1997 Fla. Div. Adm. Hear. LEXIS

5185 *13 - 14 (Fla. DOAH February 20, 1997)(Recommended

Order)(" Long - standing case law establishes tha t in a teacher

employment discipline case, the school district has the burden

of proving its charges by a preponderance of the evidence. . . .

However, in this case, the district must comply with the terms

of the collective bargaining agreement, which, as found in

paragraph 27, above, requires the more stringent standard of

proof: clear and convincing evidence.").

10 See endnote 3 above regarding Respondent's and Mr. Ashley's

classmate in Course Number 2803, Leonard Walencikowski.

11 See § 120.57(1)( c), Fla. Stat. ("Hearsay evidence may be used

for the purpose of supplementing or explaining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil

actions.").

COPIES FURNISHED:

Jean Marie Middleton, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

P.O. Box 75638

Tampa, Florida 33675 - 0638

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Honor able Jeanine Blomberg

Interim Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney , General Counsel

Department of Education

Turlington Building, Suite 1244

325 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 be filed with the agency that

will issue the final order in this case.