08-000318TTS Miami-Dade County School Board vs. Douglas Cook, Jr. Status: Closed Recommended Order on Friday, May 9, 2008.

Summary: Recommend a 30-day suspension imposed by Petitioner be sustained for assistant principal who applied for credential pay increment based on his obtaining two doctorates from diploma mills.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-0318

)

DOUGLAS COOK, JR., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on March 26, 2008.

APPEARANCES

For Petitioner: Janeen Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: James C. Casey, Esquire

Law Offices of Slesnick & Casey, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue is whether Respondent committed misconduct in

office by applying for credential payment in reliance upon an

online doctorate degree obtained without academic effort and

thus violated Section 1012.33(6)(b), Florida Statutes, and

Florida Administrative Code Rules 6B-4.009(3) and 6B-1.006(5).

PRELIMINARY STATEMENT

By letter dated December 20, 2007, Petitioner informed

Respondent that it had suspended him for 30 days without pay

from his position as assistant principal at Toussaint

L'ouverture Elementary School. The letter informs him not to

report to any work location from December 20, 2007, through

February 13, 2003.

By Petition for Administrative Hearing filed January 3,

2008, Respondent requested a formal hearing.

By Notice of Specific Charges filed February 7, 2008,

Petitioner alleged that, as an assistant principal, Respondent

is administrative staff and, as provided by Section

1012.33(6)(b), Florida Statutes, may be suspended or dismissed

during the term of his contract for immorality, misconduct in

office, incompetency, gross insubordination, willful neglect of

duty, drunkenness, or conviction of any crime involving moral

turpitude. The Notice alleges that the submittal of an online

degree, acquired without academic effort, to obtain credential

payment is misconduct in office.

The Notice of Specific Charges states that, as a managerial

exempt assistant principal, Respondent was entitled to a

doctorate pay increment of $2500 for the receipt of a doctorate

degree in one of several approved areas of study. The Notice

alleges that, on June 8, 2006, Respondent submitted to

Petitioner an application for doctorate pay increment and stated

in the application that he had received a Ph.D. in education

leadership from Northeastern University. The application

allegedly was accompanied by transcripts from "Northwestern

University, Ltd.," and "Northeastern University." The Notice

alleges that Respondent in reality never earned a doctorate

degree.

The Notice of Specific Charges alleges that Respondent thus

is guilty of immorality, as defined by Florida Administrative

Code Rule 6B-4.009(2), and misconduct in office, as defined by

6B-4.009(3).

At the hearing, Petitioner called five witnesses and

offered into evidence 26 exhibits: Petitioner Exhibits 1-26.

Respondent called five witnesses and offered into evidence four

exhibits: Respondent Exhibits 1-4. The Administrative Law

Judge introduced a copy of the school calendar as ALJ Exhibit 1.

All exhibits were admitted except the handwriting on pages 30-31

of Petitioner Exhibit 11.

The court reporter filed the transcript on April 8, 2008.

The parties filed proposed recommended orders on April 25, 2008.

FINDINGS OF FACT

1. Respondent is an assistant principal at Toussaint

L'ouverture Elementary School in Miami. He graduated from the

United States Naval Academy in Annapolis, Maryland, in 1978.

While serving in the military in Pensacola, Respondent obtained

a master's degree from Troy State University in 1985 by way of

its extension program. Respondent is 54 years old.

2. In 1994, when first employed as a teacher in the Miami-

Dade County public school system, Respondent was admitted to the

doctoral program in education leadership at the University of

Miami. He attended classes a couple of times per week per

course and submitted tuition reimbursement vouchers to

Respondent. Respondent left that program the following year

without completing the requirements for a doctoral degree.

3. In 1996, Respondent reviewed brochures that he had

received in the mail and decided to pursue his doctorate degree

at Northwestern University, Ltd. He sent Northwestern

International University, LLC, (NW) a check for about $8000 to a

post office box in Brussels, but did not seek reimbursement from

Respondent. For some reason, Respondent also decided to obtain

a doctorate degree from Northeastern University (NE) and sent

them a check for about $7000 to a post office box in New York,

but again did not seek reimbursement. Respondent testified that

he believed that he had already obtained the maximum

reimbursement available to him. Respondent engaged in academic

activities with both institutions from 1996-2000, but the

activities did not rise in scope or intensity to those

associated with a legitimate doctoral program.

4. In 1998, Respondent applied for an assistant principal

position, omitting any mention of his academic activities with

NW and NE. He obtained the job.

5. In 2000, Respondent completed his academic activities

with NW and NE. NW sent him a transcript showing the completion

of 19 courses and the Ph.D. dissertation, with grades assigned

to each. Only one typo undermines the credibility of the

transcript itself: the second "i" is dropped from

"Administration" in a human resources course, but the transcript

omits dates for the courses. Respondent received very good

grades with only one C and A in Education Program Evaluation

and his dissertation.

6. Less care went into the preparation of the NE

transcript, which also appears to culminate in the award of a

Ph.D. "Curriculum" is spelled "Cirriculum, ""Philosophy" is

spelled "Philosphy," and "Evaluation" is spelled "Evaluaton."

The NE envelope covering the transcript misspelled "transcript."

Respondent received all As and Bs.

7. Shortly after obtaining his dual doctorates, Respondent

submitted them to Petitioner. The credential payment program

for administrators went into effect in April 2006, so

Respondent's motivation at the time that he submitted the

transcripts was to obtain the prestige, and perhaps advancement,

that went with the advanced degrees.

8. However, on June 8, 2006, Respondent submitted an

application for the credential pay increment due to an

administrator in possession of a relevant, legitimate doctorate

degree. In the application, Respondent stated that he possessed

a Ph.D. from NE, which he had obtained in 2000. He signed the

application beside a statement, "I certify that all the

foregoing information is true to the best of my knowledge."

9. Respondent claims that he submitted papers, including

dissertations, in connection with both programs, but offered no

detailed description of his academic activities. Instead, he

seems to be "sticking to his story" that he thought he was

completing coursework from legitimate educational institutions,

even though it is indisputable that he did not.

10. At all material times, Respondent has known that NE

and NW were diploma mills. He never explained why he spent the

money and, presumably, time pursuing doctorate degrees at both

institutions over the same timeframe. He is aware of the rigor

of legitimate programs, having attended the Naval Academy, Troy

State, and University of Miami. Respondent was undaunted by the

sloppiness apparent in the transcripts. He claims now that,

"[i]f there is any fault, in this matter, it is one of trusting

the advertisements that I saw, brochures I received and the

syllabi, course work and transcripts I received from the [sic]

non-accredited institution." However, it is inescapably

apparent that there was fault, and the fault is that Respondent,

with the intent to deceive Petitioner, submitted these

transcripts and a fraudulent application for credential pay, to

which Respondent knew he was not entitled.

11. There is no testimony explicitly to the effect that

Respondent's fraudulent application for credential pay is so

serious as to impair his effectiveness in the school system.

However, this fact is inferred from the nature of a fraudulent

application, to Respondent's professional employer, for

credential pay based on fraudulently obtained academic

credentials.

12. After a conference for the record, Petitioner

proceeded to discipline Respondent for his misconduct. By

letter dated December 10, 2007, Petitioner informed Respondent

that the Superintendent would be recommending to the School

Board suspension without pay for "30 workdays," effective at the

close of the workday on December 19, 2007. The School Board

subsequently approved this recommendation and, by letter dated

December 20, 2007, the Assistant Superintendent informed

Respondent that he was suspended for "30 workdays" without pay

and he was not to report to any work location from December 20,

2007, through February 13, 2008.

13. The penalty is not excessive. At the final hearing,

Respondent elected not to admit to his misdealings with his

employer, but instead produced exculpatory witnesses, one of

whom testified that she had done some typing for him and one of

whom testified that he had seen the damage done to Respondent's

home by a hurricane and a lot of water damage to Respondent's

belongings. Respondent has evidently not yet accepted

responsibility for his misconduct.

14. Respondent rightly questions the accuracy of the

Assistant Superintendent's calculation of the period of the

suspension, which was to cover "30 workdays." Equating workdays

with days for which Respondent was to be paid, Respondent claims

that the suspension actually covers 40 workdays, not 30

workdays.

15. The Manual of Procedures of Managerial Exempt

Personnel, dated April 18, 2006, states at Section B-3 that a

12-month employee works a 260-day work year. This means that he

works 52 weeks times five days per week, for a total of 260

days. Respondent's suspension started December 20, so, in

accordance with the determination of the School Board, the

suspension should have ended at the close of the workday on

January 30.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

Fla. Stat. (2007).

17. Section 1012.33(6)(b), Florida Statutes, provides:

Any member of the district administrative or

supervisory staff, including any principal

. . . , may be suspended or dismissed at any

time during the term of the contract;

however, the charges against him or her must

be based on immorality, misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, drunkenness, or

conviction of any crime involving moral

turpitude, as these terms are defined by

rule of the State Board of Education. . . .

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

"misconduct in office" 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.

19. Florida Administrative Code Rule 6B-1.006(5) provides

that an administrator's "obligation to the profession of

education requires that the individual":

a. Shall maintain honesty in all

professional dealings.

* * *

g. Shall not misrepresent one's own

professional qualifications.

h. Shall not submit fraudulent information

on any document in connection with

professional activities.

* * *

20. Petitioner must prove the material allegations by a

preponderance of the evidence. McNeil v. Pinellas County School

Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

21. Petitioner has proved that Respondent is guilty of

misconduct in office by failing to maintain honesty in all

professional dealings, intentionally misrepresenting his

professional qualifications, and submitting fraudulent

information in connection with professional activities.

22. As noted above, there is no explicit testimony that

this misconduct is so serious as to impair Respondent's

effectiveness as an employee of Petitioner. But no such

explicit testimony is required in a case of fraud upon a

professional employer concerning academic qualifications. If

the standard, as applied here, is an employee's intentional

misrepresentation of a material fact to obtain compensation from

a school board to which an employee is not entitled, this is

necessarily so serious as to impair his effectiveness as a

school board employee. See , e.g. , Purvis v. Marion County

School Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000) (inferred

impairment for lying under oath at criminal trial and resisting

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

(Fla. 2d DCA 2000) (inferred impairment for misconduct in

classroom, as distinguished from private misconduct). Contra

MacMillan v. Nassau County School Board , 629 So. 2d 226, 230

(Fla. 1st DCA 1993).

23. However, the Assistant Superintendent miscalculated

the suspension that the School Board authorized, so Petitioner

should credit Respondent with pay that he did not receive after

January 30, which was when the authorized suspension should have

ended.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of misconduct in office for intentionally

misrepresenting his academic qualifications in applying for

credential pay for a doctorate degree and imposing a 30-workday

suspension, as previously authorized by the School Board, but

paying Respondent back pay for the period after January 30

through which the suspension was mistakenly implemented.

DONE AND ENTERED this 9th day of May, 2008, in Tallahassee,

Leon County, Florida.

___________________________________

ROBERT E. MEALE

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, 2008.

COPIES FURNISHED:

Dr. Rudolph F. Crew, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

James C. Casey, Esquire

Law Offices of Slesnick & Casey, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

Janeen L. Richard, Esquire

Miami-Dade County School Board Attorney's Office

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

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.