06-004144TTS Miami-Dade County School Board vs. Michelle Murray Status: Closed Recommended Order on Wednesday, May 9, 2007.

Summary: Petitioner and Respondent agreed that absence of proof that Respondent fraudulently obtained educator`s certificate should result in submitted findings of fact, conclusions of law, and recommendation of reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06-4144

)

MICHELLE MURRAY, )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER

A motion for summary order in this case was heard, pursuant

to notice, by telephone conference call on April 26, 2007, by

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Gail L. Grossman, Esquire

Gail Grossman, P.A.

815 Ponce de Leon Boulevard, Suite 209

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Petitioner has demonstrated that Respondent’s

employment with Petitioner should be suspended or terminated.

PRELIMINARY STATEMENT

On October 23, 2006, counsel for Petitioner, Miami-Dade

County Public Schools, forwarded to the Division of

Administrative Hearings the request of Respondent, Michelle

Murray, for a hearing to contest her October 11, 2006,

termination from employment as a high school teacher.

Administrative Law Judge Eleanor M. Hunter was assigned to the

case and, at the request of the parties, scheduled a hearing for

January 12, 2007.

After Respondent filed an Unopposed Motion for Continuance,

the hearing was re-scheduled for February 15, 2007. Due to a

conflict that arose in the schedule of the Administrative Law

Judge, the hearing was postponed until February 27, 2007.

Petitioner then filed an Unopposed Motion for Continuance and

the case was re-scheduled for May 1, 2007.

On April 20, 2007, Respondent filed Respondent’s Motion for

Summary Order Relinquishing Jurisdiction with Findings of Fact,

Conclusions of Law, and Recommended Order, which was followed,

on April 25, 2007, by Petitioner’s Response to Respondent’s

Motion for Summary Order Relinquishing Jurisdiction with

Findings of Fact, Conclusions of Law, and Recommended

Disposition.

Petitioner’s Response represented that it requested and

agreed that Respondent’s Motion should be granted, but the facts

recited in the pleadings demonstrated a continuing potentially

relevant factual dispute that prompted the Administrative Law

Judge to conduct a telephone conference on April 26, 2007,

before agreeing to cancel the hearing scheduled for May 1, 2007.

During the telephone conference, the parties agreed that

Petitioner would file Petitioner’s Amended Response to

Respondent’s Motion for Summary Order Relinquishing Jurisdiction

with Findings of Fact, Conclusions of Law, and Recommended

Disposition, as Petitioner did on April 30, 2007, to resolve the

apparent factual dispute. The parties also agreed to file a

proposed summary recommended order to reflect the agreement of

the parties on the facts and law applicable in this case.

Respondent’s Proposed Recommended Order, with confirmation that

all counsel agree to the entry of that Order, was filed on

May 1, 2007.

FINDINGS OF FACT

Based on the representations, submissions, and agreement of

the parties, the following Findings of Fact and Conclusions of

Law are entered:

1. The relevant facts are essentially those set forth in

the investigative report of Petitioner, Miami-Dade County School

Board (Petitioner). (BS 154-156, and attached Exhibits). 1

According to the report, Respondent was referred to Dr. William

McCoggle during the summer of 2002 by Mr. Tim Dawson, a

principal employed by Petitioner. As of that time, Respondent

needed two courses to meet certification requirements. She took

one course at Miami-Dade College (which is not at issue here)

and arranged to take the second course through Otterbein College

with Dr. McCoggle, who was operating his business under the name

of Moving on Toward Education and Training, or MOTET. (BS 147).

She called Dr. McCoggle to schedule an appointment for

registration. The meeting took place at his home. Dr. McCoggle

gave her information about the program and informed her that the

credits would be through Otterbein College. He gave her an

enrollment packet and information regarding the fee. After the

Respondent confirmed that Otterbein College was an accredited

school, Respondent made a second appointment with Dr. McCoggle

at his home, where she submitted the completed enrollment packet

and paid the fee (between $600 and $800). Dr. McCoggle told her

that the course was an internet-based/correspondence course and

that a Dr. Cannon would be her instructor. The course would

consist of writing essays, completing reports and taking

examinations and that she would be contacted via the internet

with a complete outline of the assignments. After several weeks

passed without any information coming to her, Respondent

attempted to contact Dr. McCoggle approximately 15 times,

leaving telephone messages. She never heard back from Dr.

McCoggle. Several months later she received a letter from

Otterbein stamped “Official Transcript,” which reflected a grade

of “B,” and a date of August 8, 2002. (BS 85).

2. Respondent placed the Otterbein transcript in her files

along with transcripts from other institutions. She later

inadvertently submitted a copy of the Otterbein transcript,

along with transcripts from other institutions, to the

certification office operated by Petitioner for the purpose of

renewing her certificate. It is undisputed that Respondent

never performed any actual academic work in the course for which

she received a transcript from Otterbein.

3. The only potential disputed fact issue regarding this

matter concerns Respondent’s intentions with respect to the

Otterbein transcript, which she acknowledges receiving.

Respondent acknowledges that a photocopy of the Otterbein

transcript made its way into a collection of transcripts from

other institutions and that the whole group of documents,

including the photocopy of the Otterbein transcript, was given

to Petitioner’s certification office. Respondent contends,

however, that the photocopy of the Otterbein transcript was

included with the others inadvertently and not for the purpose

of obtaining credit. By the time the materials were presented,

Respondent had more than enough credits for certification from

other institutions without using the Otterbein course.

4. Respondent’s view of the matter is supported by the

questionnaire that she presented to Petitioner’s investigators

prior to the meeting which produced the investigative summary.

At the time of the apparently inadvertent submission of the

Otterbein transcript to Petitioner, Respondent was not employed

by Petitioner. Her answers to the questionnaire, which were

submitted to Respondent in advance of her interview with its

investigators, show that Respondent was not teaching for

Petitioner at the time she applied for the Otterbein course

through MOTET. Respondent also stated that she delivered all of

her credits from each institution to Petitioner but noted that

she “had more than enough credits to obtain teacher

certification without MOTET.” (BS 218). Her questionnaire

answers further establish that she took graduate courses at

Florida International University, Miami-Dade Community College

(MDCC), and St. Martins University that would replace or

substitute credits obtained through MOTET. The investigative

file in her case reflects that the transcripts were submitted

prior to Respondent’s subsequent reemployment with Petitioner

and before the present disciplinary proceeding was initiated

against her.

5. Respondent’s explanation is also entirely consistent

with her certification file, which was made part of the

investigative report before the disciplinary action against her

was taken. Thus, a summary by Petitioner’s certification office

states that the “records indicate that an Otterbein transcript

was submitted for certification purposes but [there is] no

evidence that transcript was utilized for issuance of a

certificate . (BS 168). (Emphasis added). Respondent’s

teaching certificate was not issued by the State of Florida,

Department of Education (DOE) until April 21, 2004, almost two

years after she applied for the Otterbein course through MOTET.

There is no evidence that the MOTET course work was ever applied

toward or used to obtain certification credit. (BS 170).

Moreover, Petitioner’s Certificate Conversation Log, prepared by

Petitioner’s agents, reflects an entry dated May 21, 2003, which

relates to a telephone conversation with Respondent. The entry

states “she had sent me a packet of material on Friday—Official

MDCC Transcript, which I copied for file and sent orig. to DOE.

Also sent a copy (not orig.) of Otterbein transcript. I

informed her that she needs an official Otterbein transcript for

DOE.” (BS 174-175). There is nothing in the investigative file

to indicate that Respondent ever followed up on this

conversation by submitting an original Otterbein transcript

pursuant to the instructions from the Petitioner’s certification

agent. Nor is there any evidence in the file that the School

Board’s certification office ever transmitted any request to DOE

that Respondent be given credit for the Otterbein course work.

6. The information in Petitioner’s investigative file is

further fleshed out by evidence adduced during discovery.

Petitioner’s witnesses, including its official in charge of

certification, have acknowledged in depositions that there is no

evidence that any certification or other credit was issued to

Respondent based on the Otterbein transcript, that there is no

evidence that Respondent ever delivered an original Otterbein

transcript to the School Board in response to the suggestion of

Petitioner’s certification office, nor that she ever obtained

credit of any kind based on the Otterbein transcript. Moreover,

Petitioner’s certification official, Charlene Burks, confirmed

that it is the ordinary practice to transmit, by Petitioner’s

special overnight delivery service, any original transcripts

immediately to the DOE certification officials (who have sole

authority to issue certification credit). There is no evidence

that any original Otterbein transcript or credits claimed

thereunder, were transmitted from Petitioner to the DOE on

behalf of Respondent, nor that any such documentation was

received by the DOE from any source, nor that any credits were

issued to Respondent based on the Otterbein transcript.

7. Respondent’s account of events is further supported by

the official who conducted Petitioner’s investigation of

Respondent, Bloniva Julie Aristede. At her deposition, she

produced her handwritten notes, taken during the investigation

interview with Respondent, which state:

“Approx. 2 years later she subm. all transc.

to cert. in order to recert. not realizing

the Otterbein transc. was included.”

Respondent still has the original Otterbein transcript that was

mailed to her home. 2 Thus, the relevant evidence shows that the

only Otterbein transcript Respondent ever gave to Petitioner was

a photocopy. The evidence further shows that the Otterbein

transcript was given inadvertently. The evidence further shows

that the Otterbein transcript was not acceptable for issuance of

academic credit, and that Petitioner told Respondent that the

copy of the Otterbein transcript was not acceptable for issuance

of academic credit. The Respondent took no further action to

obtain credit through the Otterbein transcript, nor did she

receive any credit. See also Paragraphs 2, 5, 6 of Petitioner’s

Response to Respondent’s First Request for Admissions.

8. Finally, it is undisputed that Respondent was not

employed by Petitioner when she enrolled in the Otterbein

course, or when she inadvertently submitted the photocopy of the

transcript to Petitioner. The Otterbein transcript had no

bearing on her eventual receipt of a teaching certificate and

her subsequent reemployment by Petitioner.

9. Alternatively, to resolve any apparent disputed issue

of fact concerning Respondent’s reasons for delivering a

photocopy of her Otterbein transcript to Petitioner’s

certification office, the parties agree that whether

Respondent’s action was deliberate or inadvertent is not

material to the disposition of this case, as Petitioner’s agents

had clearly advised Respondent that she could obtain credit only

by providing an original transcript. Respondent, therefore,

knew that the photocopy of the Otterbein transcript, which she

gave to Petitioner, whether deliberately or inadvertently, was

useless for obtaining academic credit toward certification.

When provided a clear opportunity to manifest her intent to

deliver a fraudulent original transcript for certification

purposes, Respondent took no action.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the parties hereto and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

11. Petitioner has the burden of proving the allegations

in the Administrative Complaint by a preponderance of the

evidence. See Allen v. School Board of Dade County , 571 So. 2d

568, 569 (Fla. 3d DCA 1990); and DiLeo v. School Board of Dade

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

12. Based on the undisputed facts, Petitioner cannot

establish, by a preponderance of the evidence, that Respondent

violated any of Petitioner’s rules because (1) Respondent was

not issued any certificate as a result of the submission of the

Otterbein transcript; (2) Petitioner has no evidence that

Respondent had any fraudulent intent to do so; and (3)

Respondent was not an employee of the Petitioner during all of

the relevant events.

13. The gravamen of this case is that Respondent

fraudulently obtained an educator’s certificate. See Fla.

Admin. Code R. 6B-1.006(5)(h). The failure of proof that

Respondent obtained or attempted to obtain a certificate based

on the Otterbein transcript is sufficient in itself to establish

the lack of just cause for discipline. Cf. Winn v. Popescu ,

2006 WL 2460672, DOAH Case No. 06-1620PL (2006).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

dismissing the allegations against Respondent and reinstating

her with back pay and all full benefits to which she is

entitled.

DONE AND ENTERED this 9th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of May, 2007.

ENDNOTES

1 / References are to the Bates Stamp page numbers for documents

in Petitioner’s investigative file as provided to Respondent,

but not to the Administrative Law Judge.

2 / According to the parties, Respondent still has in her

possession the original Otterbein transcript that was mailed to

her home. Petitioner has a duplicate original in its files, but

there is no evidence when or from whom it received the document.

COPIES FURNISHED :

Jean Marie Middleton, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Gail L. Grossman, Esquire

Gail Grossman, P.A.

815 Ponce de Leon Boulevard, Suite 209

Coral Gables, Florida 33134

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Dr. Rudolph G. Crew, Superintendent

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308

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.