06-001620PL John L. Winn, As Commissioner Of Education vs. Adela Popescu Status: Closed Recommended Order on Wednesday, August 23, 2006.

Summary: Recommend one-year suspension of Respondent`s teaching certificate for cheating on her certification examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER )

OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1620PL

)

ADELA POPESCU , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on June 15, 2006, by video

teleconference with sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is gui lty of the

allegations in the Amended Administrative Complaint filed

against her, and, if so, what disciplinary action should be

taken against her, if any.

PRELIMINARY STATEMENT

Petitioner John L. Winn, as Commissioner of Education,

filed an Amended Admi nistrative Complaint against Respondent

Adela Popescu, alleging that she had violated various statutory

and rule provisions regulating her conduct as a teacher in the

State of Florida. Respondent timely requested an administrative

hearing regarding the al legations in the Amended Administrative

Complaint, and this cause was transferred to the Division of

Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Varonda Stone - Lardge,

Willa Wolcott, Elizabeth Novi nger, Michael Jones, and

Cornelia Orr. Respondent did not testify but presented the

testimony of Julie Arnold. Additionally, Petitioner's Exhibits

numbered 2 - 13 and 15 - 20 were admitted in evidence.

Following the conclusion of the hearing, b oth parties

submitted proposed recommended orders. Those proposed orders

have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent Adela Popescu holds Florida Educator's

Certificate 876674 covering the area of mathematics, which w as

valid through June 30, 2006. She was employed by the Broward

County School District as a math teacher.

2. The Florida Teacher Certification Examination ("FTCE")

is a statewide examination. It is given four times a year at

multiple locations. The Dep artment of Education contracts with

the Institute of Instructional Research and Practice of the

University of South Florida to administer the examination, and

the Institute contracts with persons to serve as room proctors

and to grade the essay part of the general knowledge portion of

the examination. The general knowledge portion of the

examination is a basic skills test.

3. Respondent applied to take the general knowledge

portion of the test on April 16, 2005. That portion required

the examinees to wri te a short essay on a choice of topics.

4. The Department provided to Respondent, along with her

admission card allowing her to take the examination, the

Department's written guidelines prohibiting cheating on the

examination and itemizing some activities considered cheating

following the words "including but not limited to."

5. Respondent took the essay portion of the general

knowledge examination on April 16, 2005. At the beginning of

the examination, the examinees were given written instructions.

The instructions specifically provided: "You will have 50

minutes to plan, write, and proofread an ORIGINAL essay on one

of the two topics presented below." Two topics were presented

and then the following sentence provided: "Read the two topics

again and select the one on which you wish to write your

ORIGINAL essay." The word "original" was in capital letters in

both sentences.

6. In addition to the written instructions, the room

supervisor for the test read the following instructions to the

group of exa minees:

You must write an original essay that

specifically and directly responds to the

topic you select. Pre - prepared essays that

are discovered to contain memorized

sentences or passages will be marked

accordingly. For example, if the essay

raters disc over passages that appear in two

or more essays, the essays will be brought

to the attention of the Florida Department

of Education.

7. The above - quoted language was read three times in

succession in order to emphasize the need to write an original

essa y. Therefore, the requirement that the essay be original

was presented to the examinees two times in writing and three

times verbally, for a total of five times.

8. There was no minimum or maximum length to the essay.

The topics given required no parti cular level of knowledge of

anything; rather, the topics were akin to asking an elementary

school student to write an essay on what the child did during

the summer vacation. It is surprising to find such a basic task

on an examination given to college gra duates, but at hearing the

Department presented testimony to the effect that it is only

trying to ascertain if the examinee can communicate

extemporaneously, i.e. , whether he or she is capable of writing

a note to a student's parents.

9. The five - parag raph - long essay that Respondent turned in

as her original work is virtually identical to an essay the

Department has seen so many times that Department staff refer to

it as "the lush green hills essay." Admitted in evidence were

the essays of three examin ees who took the exam prior to

Respondent and two examinees who took the exam on the same date.

The primary differences in the essays arise from inferior skills

in the English language so, for example, one examinee wrote "the

lunch green hills," Responden t wrote "the lash green hills," one

examinee apparently forgot that the green hills were "lush," and

one examinee apparently thought there was only one hill.

Otherwise, there are few differences in the essays.

10. Respondent's essay was flagged by the e ssay readers,

referred to the chief reader, and then forwarded to the

Department. The Department agreed with the determination that

the essay was not "original , " that Respondent had cheated on the

examination, and that her essay should be declared invalid . The

Department so advised Respondent by letter dated May 16, 2005.

11. In addition to advising Respondent that her score on

the essay subtest of the general knowledge examination was

invalid, the Department also advised Respondent that she had a

rig ht to an administrative hearing on that determination.

Respondent did request an administrative hearing, and the case

was transferred to the Division of Administrative Hearings and

assigned Case No. 05 - 2318. Before the final hearing in that

case, Respond ent filed a Notice of Voluntary Dismissal of her

request for a hearing.

12. There is a dearth of evidence in the record in this

cause as to how or when Respondent was issued a Florida

Educator's Certificate. However, the parties have stipulated

that she was licensed, with her license expiring June 30, 2006.

Prior to that date, the Commissioner of Education issued the

Amended Administrative Complaint which is the subject of this

proceeding.

13. There is no evidence as to how Respondent plagiarized

some one else's work: whether she brought it into the

examination, whether she memorized it, or whether she obtained

it through the use of technology. The method she used to cheat,

however, is irrelevant since she represented someone else's work

as her own an d admits it was not an original essay.

14. Shortly before the final hearing in this cause, the

parties filed a number of motions typically designed to resolve

a case without the need for a hearing. Petitioner argued that

jurisdiction over this matter should be relinquished since by

Respondent's admission that she did not turn in an original

essay, which constituted cheating, there were no longer genuine

issues of material fact. In opposition to that motion,

Respondent asserted that Petitioner was rely ing on two policies

which were required to be promulgated as rules but were not,

thereby preventing Petitioner from taking disciplinary action

against Respondent.

15. Respondent alleges that the two unpromulgated rules

upon which Petitioner relies are th e definition of cheating ,

which appeared in the materials allowing Respondent admission to

the examination , and the examination instructions , which

required that an original essay be submitted and which were

provided to Respondent twice in writing and thre e times

verbally. Respondent did not raise these issues in her

administrative challenge to the Department of Education's

decision to declare her essay to be invalid, which would have

been the appropriate proceeding since the question of whether

she shou ld be given a score for her essay or whether it should

be declared invalid was the subject matter of that proceeding,

not this proceeding.

16. The two challenged policies, the definition of

cheating and the essay instructions, are not rules and,

theref ore, need not be promulgated pursuant to Section 120.54,

Florida Statutes. Further, neither the definition of cheating

nor the essay instruction is vague, and neither vests unbridled

discretion in anyone.

17. The words "cheating" and "original" are no t statutory

terms, requiring interpretation. Further, they are not

specialized terms unique to the Commissioner of Education or the

Department of Education. They are words of common usage.

18. Copying someone else's work and representing it to be

one 's own is a willful and intentional act. It is also

unethical and dishonest to plagiarize.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), F la. Stat.

20. The Amended Administrative Complaint filed against

Respondent contains seven Counts. Petitioner bears the burden

of proving the allegations in the Amended Administrative

Complaint by clear and convincing evidence since the document

seeks di sciplinary action against Respondent up to and including

suspension or revocation of her teaching certificate. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

21. Count 1 charges Respondent with violating Section

1012.795(1)(a), Florida Statutes, which prohibits obtaining or

attempting to obtain an educator certificate by fraudulent

means. The Amended Administrative Complaint does not allege

that she attempted to obtain but only that she obtained her

teaching certificate by fraudulent means. Since the re is no

evidence as to when Respondent obtained her teaching

certificate, Petitioner has failed to prove that Respondent

violated that statutory provision. If she had her teaching

certificate before she cheated on the examination, there is no

evidence th at she obtained it by fraudulent means. If she

obtained her teaching certificate after she was caught cheating,

again there is no evidence that she obtained it by fraudulent

means since her cheating was known by the Department of

Education right after it occurred.

22. Count 2 alleges that Respondent violated Section

1012.795(1)(c), Florida Statutes, in that she has been guilty of

gross immorality or an act involving moral turpitude. The

statute does not define those terms. However, Rule 6B - 4.009,

Florid a Administrative Code, which contains definitions for use

by school districts in disciplining instructional staff,

provides assistance.

23. Florida Administrative Code Rule 6B - 4.009(2), provides

a definition of "immorality," albeit not gross immorality, a s

". . . conduct that is inconsistent with the standards of public

conscience and good morals." Cheating on a certification

examination, like plagiarism, is inconsistent with the standards

of public conscience and good morals.

24. "Gross immorality" has been determined to mean an act

of misconduct that is serious, rather than minor in nature; it

is a flagrant disregard of proper moral standards. Education

Practices Commission v. Knox , 3 F.A.L.R. 1373 - A (Dept. of

Education 1981).

25. Florida Administr ative Code Rule 6B - 4.009(6), defines

moral turpitude as:

. . . 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 her fellow m an or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

As leaders and role models in the community, teachers are held

to a high moral standard. Adams v. Professional Practices

Council , 4 6 So. 2d 1170 (Fla. 1st DCA 1981). As a teacher, it

is not necessary that Respondent be charged with or convicted of

a crime to be disciplined for conduct reflecting gross

immorality or moral turpitude. Walton v. Turlington , 444 So. 2d

1082 (Fla. 1st DCA 1984).

26. Respondent's duties as a teacher include evaluating

her students by testing their knowledge. Her apparent belief

that cheating or plagiarizing is acceptable conduct cannot be

permitted to be taught to her students. The public has a right

t o rely on the placement of only honest persons in charge of

teaching the community's youth. Petitioner has proven

Respondent guilty of gross immorality and an act involving moral

turpitude since she, as a teacher, submitted someone else's work

as her own as part of her examination for certification.

27. Count 3 of the Amended Administrative Complaint

alleges that Respondent has violated Section 1012.795(1)(i),

Florida Statutes, by violating the Principles of Professional

Conduct for the Education Profess ion prescribed by State Board

of Education rules. Those Principles are found in Florida

Administrative Code Rule 6B - 1.006. Petitioner has proven

Respondent guilty as alleged in Count 3 as set forth below in

the discussion of Counts 6 and 7.

28. Count 4 alleges that Respondent has violated Section

1008.24(1), Florida Statutes, in that she knowingly and

willfully violated test security rules adopted by the State

Board of Education for mandatory tests administered by or

through the State Board of Education or the Commissioner of

Education to students, educators, or applicants for

certification. The only evidence offered by Respondent in this

proceeding was a witness, alleged to be a character witness, who

speculated, with no first - hand knowledge, as to diff erent

scenarios that might have happened during Respondent's essay

examination. This purported character witness also tried to

excuse Respondent's cheating by reasoning that since Respondent

was a math teacher, cheating only mattered if Respondent was

tak ing a math examination and that it was acceptable for

Respondent to cheat on, for example, an English examination.

29 . Respondent did not testify in this proceeding, and

Petitioner did not prove whether Respondent brought written

material into the examina tion with her, copied from another

examinee, or memorized a "canned" essay and submitted it as her

original work. Since the record in this cause fails to show how

Respondent cheated, Petitioner has failed to prove Respondent

guilty of Count 4.

3 0 . Count 5 alleges that Respondent violated Section

1008.24(1)(f), Florida Statutes, by knowingly and willfully

failing to follow test administration directions specified in

the test administration manuals. Respondent was advised 5

times, in writing or verbally, t hat she was to write an original

essay during the time allotted to do so. She knew that the

essay she wrote was not her original work, and she willfully and

intentionally submitted it. Petitioner has proven Respondent

guilty of Count 5.

3 1 . Counts 6 and 7 involve the Principles of Professional

Conduct for the Education Profession in Florida. Count 6

alleges that Respondent failed to maintain honesty in all

professional dealings, as required by Rule 6B - 1.006(5)(a).

Count 7 alleges that Respondent submit ted fraudulent information

on a document in connection with professional activities, as

prohibited by Florida Administrative Code Rule 6B - 1.006(5)(h).

Petitioner has proven Respondent guilty of Counts 6 and 7 of the

Amended Administrative Complaint.

3 2 . Respondent's defense to the allegations in the Amended

Administrative Complaint is that she can be found guilty of no

statutory or rule violation in this proceeding because

Petitioner is relying on two unpromulgated rules as the basis

for alleging that Res pondent violated the statutes and rules

with which she has been charged. Respondent is in error.

3 3 . Section 120.52(15), Florida Statutes, provides the

following definition:

'Rule' means each agency statement of

general applicability that implements,

i nterprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

This proce eding, conducted pursuant to Section 120.57(1),

permits the non - agency party to challenge an agency's reliance

upon alleged unpromulgated rules on certain statutorily -

enumerated grounds. Respondent argues that the two statements

she challenges are unadopt ed rules which cannot be applied to

her because they (1) enlarge, modify, or contravene the specific

provisions of law implemented, and (2) are vague, fail to

establish adequate standards for agency decisions, or vest

unbridled discretion in the agency. § 120.57(1)(e)2.c and d,

Fla. Stat.

3 4 . Petitioner responds that the Department is exempt from

rulemaking for the challenged statements pursuant to Section

120.81(1)(c), Florida Statutes, which provides:

Notwithstanding s. 120.52(15), any tests,

test sc oring criteria, or testing procedures

relating to student assessment which are

developed or administered by the Department

of Education pursuant to s. 1003.43, s.

1003.438, s. 1008.22, or s. 1008.25, or any

other statewide educational tests required

by law , are not rules.

The teacher certification examination is not a student

assessment test as provided for in the statutory sections quoted

above; those statutes apply to students in the public school

system. It is not necessary to reach the question of whe ther

the teacher certification examination, a basic skills exam, is a

statewide educational test required by law.

3 5 . Not every agency statement meets the definition of a

rule requiring rulemaking pursuant to Section 120.54, Florida

Statutes. The discip linary action sought in this proceeding is

based upon the statutes and rules alleged in the Amended

Administrative Complaint. For example, those cited statutes and

rules prohibit gross immorality and fraudulent documentation

regarding professional activit ies and require honesty in all

professional dealings. The facts alleged in the Amended

Administrative Complaint are simply the factual basis for the

allegation that Respondent violated certain statutes and rules

regulating her conduct as a member of the t eaching profession.

There is no legal requirement that an agency promulgate rules

forbidding every conceivable set of facts which might form the

basis for a statutory or rule violation. Environmental Trust,

et al. v. Florida Dept. of Environmental Protec tion, etc. , 714

So. 2d 493 (Fla. 1st Dist. 1998).

3 6 . Further, the statements challenged by Respondent are

the definition of cheating, with examples thereof, and the

requirement that her essay be original. The Department

determined that Respondent did n ot submit an original essay and

that she, therefore, had cheated on her examination. The

Department declared her score invalid and notified her of her

right to challenge that preliminary decision. Respondent did

request an administrative hearing on that decision. That

request for hearing was assigned DOAH Case No. 05 - 2318.

Respondent's assertion that the definition of cheating and the

essay instructions requiring an original essay are unadopted

rules were issues to be determined in that prior proceeding

regarding whether her score should be invalidated. When

Respondent voluntarily dismissed that proceeding, the

Department's preliminary decision became final. In addition,

Respondent has admitted in this proceeding that she did not

write an original essa y, which admission can lead to only one

factual conclusion: she plagiarized someone else's work and

that is cheating.

3 7 . It is uncertain that the Department or the State Board

of Education could promulgate rules defining the word "cheating"

or the word "original." These are not statutory terms unique to

the Department of Education or the State Board of Education or

statutory terms requiring definition. They are common, everyday

words understood by children and adults alike. It is unlikely

that any ag ency has been given the statutory responsibility or

authority to define those common words. Under Respondent's

reasoning, every word in the test instructions would need to be

adopted as a rule, including whether the test should be taken in

pen or pencil. Respondent's argument defies common sense.

3 8 . Section 1012.56, Florida Statutes, provides the

requirements for teacher certification. Subsections (8)(e) and

(g) specify that the examination and any developmental materials

and work papers are exempt fro m public records disclosure

pursuant to Section 119.07(1), Florida Statutes, and shall be

confidential. See also § 119.071(1)(a), Fla. Stat.

Accordingly, Petitioner's Exhibits numbered 7 - 13 are transmitted

herewith in a sealed envelope.

39 . Although Petitioner's attorney represented during the

final hearing that he would include in his proposed recommended

order a recommended disciplinary action to be taken against

Respondent, he failed to do so. Section 1012.795(1), Florida

Statutes, sets forth a ra nge of disciplinary actions which the

Education Practices Commission is authorized to take against a

teacher who has violated statutes or rules regulating that

teacher's conduct. The fact that the record in this cause lacks

evidence as to the current stat us of Respondent's educator's

certificate makes determining an appropriate penalty more

difficult. The evidence is clear that Respondent held an

educator's certificate which, by its terms, expired June 30,

2006. Whether she still possesses a certificate, whether it has

been renewed or re - issued, whether the certificate expired, or

whether Respondent is currently without a certificate but

remains eligible to be re - issued one as a merely ministerial act

is unknown.

4 0 . Although the record in this cause mak es it difficult

to recommend a specific penalty, there is no doubt that a

meaningful penalty must be imposed. That penalty should be

severe enough that Respondent will understand that dishonest

persons should not be classroom teachers. Anything less than a

one - year suspension or revocation, whichever is appropriate

based upon the status of her certificate, would be insufficient

to communicate to Respondent the severity of her egregious

behavior.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent guilty of Counts 2, 3, and 5 - 7 , as alleged in the

Amended Administrative Complaint filed in this cause and

suspending or revoking Respondent's educator's certificate for a

period of one year.

DONE AND ENTERED this 23rd day of August, 2006 , in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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

this 23rd day of August, 2006 .

COPIES FURNISHED :

Kathleen M. Rich ards, Executive Director

Education Practices Commission

Department of Education

Turlington Building

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building

325 West Gaines Street, Room 1224

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

Turlington Building

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Charles T. Whitelo ck, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

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.