09-000500PL Dr. Eric J. Smith, As Commissioner Of Education vs. Batumane Shad Banto Kasanganay Status: Closed Recommended Order on Friday, June 19, 2009.

Summary: Respondent engaged in dishonest dealing in his professional relationship by encouraging and assisting with the compromise of testing protocol for teacher's examination for certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-0500PL

)

BATUMANE SHAD BANTOU )

KASANGANAY, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held by video

teleconference on April 13, 2009, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings with the parties appearing in

Tallahassee, Florida, and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock and Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Joan Stewart, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Batumane Shad

Banto Kasanganay (Respondent), committed the offenses alleged in

an Administrative Complaint issued June 24, 2008, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

On June 24, 2008, Dr. Eric J. Smith, as Commissioner of

Education for the State of Florida (Petitioner), issued an

Administrative Complaint against Respondent that alleged

multiple counts of statutory and rule violations. All of the

factual allegations related to a class conducted by Respondent

that prepared persons to take the math portion of the General

Knowledge teacher certification exam. More specifically, the

complaint maintained that Respondent had engaged in conduct that

compromised the integrity of the testing protocols used to

certify teachers in Florida. Based upon Respondent's course of

conduct, Petitioner alleged that the Education Practices

Commission should take disciplinary measures against

Respondent's teaching certificate. Through his attorney,

Respondent disputed all allegations of the complaint and

requested a formal hearing. The case was forwarded to the

Division of Administrative Hearings for formal proceedings on

January 29, 2009.

A Notice of Hearing was issued on February 10, 2009, and

the case was scheduled for hearing. At the hearing, Petitioner

presented testimony from Jennifer Tomko, Judy Warren, Dr.

Michael Jones, and Renee Luallen. Petitioner's Exhibits 1-5,

together with the deposition testimony of Respondent were

admitted into evidence. Respondent testified in his own behalf.

The Transcript of the proceeding was filed with the Division of

Administrative Hearings on April 24, 2009.

In accordance with the stipulation of the parties, the

parties were granted fifteen days from the date of the filing of

the transcript within which to file their proposed recommended

orders. The parties timely filed Proposed Recommended Orders on

May 11, 2009. The proposed orders have been fully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, as the Commissioner of the Florida

Department of Education, is responsible to investigate and

prosecute complaints against persons who hold a Florida

Educational Certificate who are alleged to have violated the

provisions of law related to the education profession in the

State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat.

(2008).

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

Respondent has held Florida Educator's Certificate No. 752042,

covering mathematics, that is valid through June 30, 2010.

3. From 1998 through the 2007 school year, Respondent was

employed by the Palm Beach County School District as a math

teacher at Bak Middle School (Bak). During his tenure at Bak,

Respondent's students performed well on the Florida

Comprehensive Assessment Test (FCAT) and the school became

favorably ranked for its math achievement. Additionally,

Respondent's students improved FCAT scores in mathematics over

the course of his time with them. Prior to working with the

students at Bak, Respondent worked in Okeechobee, Florida, and

was teacher of the year one of the two years he taught at the

Eckerd Learning Center, a school for juvenile offenders.

4. Prior to the conduct complained of in this case,

Respondent had no prior disciplinary concerns.

5. Respondent had received satisfactory evaluations every

year.

6. Respondent, or "Mr. Kas" as he is also referred to in

the record, came to the United States from central Africa. He

spoke no English on his arrival but had received a degree in

mathematics and physics from the Institute Alingea Studies.

After moving to North Carolina, Respondent received a degree

from Western Carolina University in Cullowhee, North Carolina,

and became a United States citizen. Respondent travels under a

U. S. passport and, at the time of the hearing in this cause,

resides in Palmerston North, New Zealand.

7. Respondent created a corporation named Mr. Kas, Inc.,

and opened "Mr. Kas Learning Center" in 2000 in order to better

assist students with math anxiety to learn and improve

mathematics skills. The learning center was a private business

not affiliated with the Palm Beach County Schools where

Respondent taught or tutored students from elementary school age

through doctoral candidates to improve their math skills and to

perform favorably on examinations. Respondent operated this

"for profit" entity and received payment from those who

participated in the after school program.

8. The record is not clear as to whether Mr. Kas, Inc.,

was formally "doing business as" the "Mr. Kas Learning Center,"

but it is definite that only Respondent individually committed

the acts complained of in the instant case. That is to say, all

comments that were alleged to have been uttered were made by

Respondent. No other individuals who may have attended or been

associated with Mr. Kas, Inc., or the "Mr. Kas Learning Center"

were involved. The alleged offending behavior was attributed

solely to Respondent.

9. None of the alleged behavior occurred during

Respondent's work day at Bak.

10. Respondent was a member of the Palm Beach County

Classroom Teachers Association (CTA). It was customary for the

CTA to provide workshops for its members and on several

occasions Respondent was asked to conduct workshops.

Additionally, Respondent assisted new teachers, members of the

CTA, to pass the state certification examination. Respondent

tutored/taught CTA members for compensation to pass the General

Knowledge math portion of the certification examination. These

sessions were generally group endeavors and Respondent was

compensated based upon the number of persons in attendance.

11. In addition to the foregoing, Respondent also worked

with firefighters, police, nurses, and others who were required

to pass a math competency section as part of their professional

testing.

12. Monday through Friday Respondent opened his learning

center in the afternoon after school for school children.

During this time he worked with students to complete their

homework, prepare for tests, and study for exams.

13. On Saturdays Respondent used the learning center to

conduct group sessions to work with adults and professionals.

14. The Department of Education publishes a preparation

guide to address the General Knowledge test that must be passed

for teacher certification in Florida. Respondent purchased the

guide and used it and other questions he collected to develop a

learning tool for persons who would take the Florida Teachers

Certificate Examination and use his learning center for help to

pass the math portion of the exam.

15. Jennifer Tomko was a first year middle school teacher

in Palm Beach County, Florida, during the 2006/2007 school year.

Ms. Tomko applied for her teaching certificate with the

Department of Education and was required to pass the General

Knowledge examination, including the math section. On two

occasions Ms. Tomko did not pass the math section.

16. On her third attempt to pass, Ms. Tomko became

distraught as she believed she had again failed to achieve a

passing score on the math test. A test proctor observed

Ms. Tomko's demeanor and suggested that she consider attending

one of Respondent's tutor sessions at his learning center.

17. Ms. Tomko had a "mentor teacher" at her school who had

been tutoring her for several months. The mentor, Judith

Warren, encouraged Ms. Tomko to attend Respondent's session. To

that end, Ms. Tomko signed up for Respondent's Saturday math

help session.

18. When Ms. Tomko met Respondent and told him of her

prior failed attempts to pass the math section of the exam, he

assured her that with his help, she would pass the test. He

remarked that it was her "lucky day." As part of his guarantee

that she would pass the math section, Respondent provided Ms.

Tomko with key phrases of the actual test questions along with

the correct answer for the question. Respondent instructed Ms.

Tomko to make flash cards to include the key phrase of the

questions and to look for the answers he provided. Since Ms.

Tomko did not have index cards with her, she used sheets of

paper to make columns. The columns had the "key phrase" and the

"answers" provided by Respondent. When Ms. Tomko got home, she

copied the columns of information onto cards. The front of the

card with the "key phrase" as provided by Respondent, the

reverse of the card held the "answer."

19. Respondent also gave Ms. Tomko a handout that included

information regarding computing the distance between two cities.

The information denoted in Respondent's handout contained real

questions from the Florida teacher examination. These "live"

questions were verbatim from the test and were sufficient to

demonstrate Respondent had "collected" real information from the

teacher examination in order to prompt his students with the

correct answers.

20. In fact, Respondent told Ms. Tomko to call him

immediately after the test to let him know of any difficult

questions. Respondent represented that with information

regarding difficult questions, he could better assist future

applicants taking the exam. Presumably, this is how Respondent

was able to assemble the information he provided to Ms. Tomko

and to assure her that she would pass the math examination.

Obviously, by collecting real questions from test participants

Respondent would be able provide answers that would allow

success on the exam.

21. According to Ms. Tomko during the tutoring session she

attended, Respondent did not teach math strategies or formulas

for completing the math section of the examination. Instead,

Respondent offered questions (identified by the key phrases) and

answers that the participants were to memorize. For example, if

the question included something about a "toy in box" the answer

was "13 feet." Actual examples of the test questions (or key

phrases) along with the answers provided by Respondent are

omitted here as they are confidential as a matter of law. See §

1008.23, Fla. Stat. (2008). Nevertheless, the key phrases and

answers provided by Respondent were, in fact, actual questions

from the math section of the examination.

22. Respondent did not consider his assistance "cheating."

Ms. Tomko, however, felt uncomfortable about memorizing the

answers based upon the key phrases.

23. According to Ms. Tomko, whose testimony has been

deemed credible, Respondent instructed her to take the computer

and not the written version of the test. Respondent told Ms.

Tomko to memorize the card information previously described and

to not finish too quickly in order to avoid suspicion.

24. Ms. Tomko felt Respondent's words and behavior were

contrary to her moral code and violated her responsibility as an

educator to be a role model for students. Because she was

offended, the evening after the Saturday tutor session with

Respondent, Ms. Tomko contacted her mentor who then encouraged

her to take the matter to their principal. The principal

reported the case to the Department of Education and the instant

administrative action ensued.

25. The flash cards produced by Ms. Tomko contained real,

"live" questions from the Florida Educational Certificate

examination. All of the flash cards were constructed using the

information from Respondent.

26. DOE is charged with the responsibility of maintaining

the examination questions and answers in a secure manner. The

questions and answers are confidential and are not to be made

public. The development of the examination questions cost over

$300,000 and involved the efforts of DOE staff as well as

private contractors who assist in the preparation of test

questions. The examination is maintained in a locked vault with

limited access to even DOE employees. Although test questions

may be circulated indefinitely, different versions of the

examination with different questions included are developed so

that the same exact version is not repeatedly given.

Nevertheless, by circulating the "key phrase" of a question with

its answer, it would be possible for someone to circumvent the

version differences among the exams since the questions

themselves would remain the same.

27. Once the instant case was referred to the DOE,

Respondent became aware that he was under investigation.

Respondent resigned his position with the Palm Beach County

School District at the end of the 2006/2007 school year.

Respondent's learning center was also closed near that time.

Subsequently, Respondent left the country and currently resides

in New Zealand.

28. Respondent's claims regarding the closure of his

learning center, the loss of records pertaining to the tutoring

efforts made on behalf of CTA members, and other conflicting

stories pertinent to this case result in the inescapable

conclusion that Respondent was not forthright regarding his

learning center and the materials and information he personally

supplied to persons taking the teacher certification

examination.

29. In this case Respondent was charged with the following

statutory violations:

COUNT 1: Respondent is in violation of

Section 1008.24(1), Florida Statutes, in

that Respondent 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 Commissioner of Education to

students, educators, or applicants for

certification or administered by school

districts pursuant to s. 1008.22.

COUNT 2: Respondent is in violation of

Section 1008.24(1)(a), Florida Statutes, in

that Respondent gave examinees access to

test questions prior to testing.

COUNT 3: Respondent is in violation of

Section 1008.24(1)(b), Florida Statutes, in

that Respondent copied, reproduced, or used

in any manner inconsistent with test

security rules all or any portion of any

secure test booklet.

COUNT 4: Respondent is in violation of

Section 1008.24(1)(d), Florida Statutes, in

that Respondent made answer keys available

to examinees.

COUNT 5: Respondent is in violation of

Section 1008.24(1)(g), Florida Statutes, in

that Respondent participated in, directed,

aided, counseled, assisted in, or encouraged

any of the acts prohibited in this section.

COUNT 6: Respondent is in violation of

Section 1012.795(1)(c), Florida Statutes, in

that Respondent has been guilty of gross

immorality or an act involving moral

turpitude.

COUNT 7: Respondent is in violation of

Section 1012.795(1)(i), Florida Statutes, in

that Respondent has violated the Principles

of Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

30. Additionally, Respondent was charged with the

following rule violations:

COUNT 8: The allegations of misconduct set

forth herein are in violation of Rule 6A-

10.042(1)(b), Florida Administrative Code,

in that Respondent revealed, copied or

otherwise reproduced tests or individual

test questions.

COUNT 9: The allegations of misconduct set

forth herein are in violation of Rule 6A-

10.042(1)(e), Florida Administrative Code,

in that Respondent provided answer keys to

examinees.

COUNT 10: The allegations of misconduct set

forth herein are in violation of Rule 6A-

10.042(1)(f), Florida Administrative Code,

in that Respondent has participated in,

directed, aided, counseled, assisted in, or

encouraged an activity which could result in

the inaccurate measurement or reporting of

examinees' achievement.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

Fla. Stat. (2008).

32. Section 1012.796(6), Florida Statutes (2008),

provides:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint

and prosecute the complaint pursuant to the

provisions of chapter 120. An

administrative law judge shall be assigned

by the Division of Administrative Hearings

of the Department of Management Services to

hear the complaint if there are disputed

issues of material fact. The administrative

law judge shall make recommendations in

accordance with the provisions of subsection

(7) to the appropriate Education Practices

Commission panel which shall conduct a

formal review of such recommendations and

other pertinent information and issue a

final order. The commission shall consult

with its legal counsel prior to issuance of

a final order.

33. Section 1012.796(7), Florida Statutes (2008),

provides:

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicant's

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educator's certificate.

2. Have his or her immediate supervisor

submit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

34. Section 1012.795, Florida Statutes (2006), provides in

pertinent part:

(1) The Education Practices Commission may

suspend the educator certificate of any

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

for a period of time not to exceed 5 years,

thereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students for that period of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the

educator certificate of any person, thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

(b) Has proved to be incompetent to teach

or to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

(d) Has had an educator certificate

sanctioned by revocation, suspension, or

surrender in another state.

(e) Has been convicted of a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic violation.

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

(g) Has breached a contract, as provided in

s. 1012.33 (2).

(h) Has been the subject of a court order

directing the Education Practices Commission

to suspend the certificate as a result of a

delinquent child support obligation.

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

(j) Has otherwise violated the provisions

of law, the penalty for which is the

revocation of the educator certificate.

(k) Has violated any order of the Education

Practices Commission.

(l) Has been the subject of a court order

or plea agreement in any jurisdiction which

requires the certificateholder to surrender

or otherwise relinquish his or her

educator's certificate. A surrender or

relinquishment shall be for permanent

revocation of the certificate. A person may

not surrender or otherwise relinquish his or

her certificate prior to a finding of

probable cause by the commissioner as

provided in s. 1012.796.

35. A teacher may be disciplined if he or she “[h]as

violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

rules.” The Principles of Professional Conduct for the

Education Profession in Florida are set out in Florida

Administrative Code Chapter 6B-1.006. That rule provides, in

part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

36. Section 1008.24, Florida Statutes (2006), provides in

part:

(1) It is unlawful for anyone knowingly and

willfully to violate 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

or administered by school districts pursuant

to s. 1008.22 , or, with respect to any such

test, knowingly and willfully to:

(a) Give examinees access to test questions

prior to testing;

(b) Copy, reproduce, or use in any manner

inconsistent with test security rules all or

any portion of any secure test booklet;

* * *

(d) Make answer keys available to

examinees;

* * *

(g) Participate in, direct, aid, counsel,

assist in, or encourage any of the acts

prohibited in this section.

(2) Any person who violates this section

commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s.

775.083.

(3) A district school superintendent, a

president of a public postsecondary

educational institution, or a president of a

nonpublic postsecondary educational

institution shall cooperate with the

Commissioner of Education in any

investigation concerning the administration

of a test administered pursuant to state

statute or rule.

37. Section 1008.22, Florida Statutes (2006), pertains to

the student assessment program for public schools commonly known

as FCAT. The allegations of this case do not relate to that

testing protocol. The allegations against this Respondent stem

solely from providing persons inappropriate assistance in order

to score well on the teacher certification examination

administered by the state pursuant to Section 1012.056, Florida

Statutes (2006).

38. In that regard, Florida Administrative Code Rule 6A-

10.042 provides, in pertinent part:

(1) Tests implemented in accordance with

the requirements of Sections 1004.93,

1008.22, 1008.29, 1008.30, 1012.55, and

1012.56, Florida Statutes, shall be

maintained and administered in a secure

manner such that the integrity of the tests

shall be preserved.

(a) Test questions shall be preserved in a

secure manner by individuals who are

developing and validating the tests. Such

individuals shall not reveal in any manner,

verbally or in writing, the test questions

under development.

(b) Tests or individual test questions

shall not be revealed, copied, or otherwise

reproduced by persons who are involved in

the administration, proctoring, or scoring

of any test.

(c) Examinees shall not be assisted in

answering test questions by any means by

persons administering or proctoring the

administration of any test.

(d) Examinees’ answers to questions shall

not be interfered with in any way by persons

administering, proctoring, or scoring the

examinations.

(e) Examinees shall not be given answer

keys by any person.

(f) Persons who are involved in

administering or proctoring the tests or

persons who teach or otherwise prepare

examinees for the tests shall not

participate in, direct, aid, counsel, assist

in, or encourage any activity which could

result in the inaccurate measurement or

reporting of the examinees’ achievement.

* * *

(4) Violations of test security provisions

shall be subject to penalties provided in

statute and State Board Rules.

(Emphasis Added.)

39. In this matter, Petitioner bears the burden of proof

to establish that Respondent engaged in the conduct complained

of by the Administrative Complaint. To that end, Petitioner

must establish by clear and convincing evidence the allegations

against Respondent. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); and Ferris v.

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

40. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). Evidence that is credible, denoted

by precise facts and information that a witness distinctly

remembers is sufficient to support the burden of clear and

convincing evidence. See In re Davey , 645 So. 2d 398 (Fla.

1994) and Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

1983). In this matter it is concluded that Ms. Tomko reported

clearly, precisely, and without hesitancy, the facts and

circumstances of the tutoring session conducted by Respondent.

Ms. Tomko was not confused in any manner, was concise in her

recollection of the events, and fully disclosed the information

that offended her in a timely manner to persons at her place of

employment. In contrast, Respondent's version of the incidents

and circumstances did not report information in a credible or

concise manner. Moreover, Respondent's demeanor, confusion, and

lack of candid response to questions posed to him in this cause

suggest either his memory of the events is flawed or erroneous.

Additionally, Respondent's lack of candor has been deemed an

indication of his knowing and willful participation in the

activities complained of in this matter. Deceptions support the

notion that the person was aware of the wrong being perpetrated.

41. As to the specific allegations of this case, it is

concluded that Respondent gave Ms. Tomko access to test

questions from the teacher certification examination in

violation of Section 1008.24(1)(a), Florida Statutes (2008). It

is further concluded that Respondent orchestrated a system

whereby he could receive additional "live" questions from the

examination by having educators taking the test report to him

the questions that posed difficulty in violation of Florida

Administrative Code Rule 6A-10.042(1)(b). It is concluded that

by providing the "key phrase" of the questions with the correct

answers, Respondent sought to encourage an activity that could

result in the inaccurate measurement or reporting of examinees'

achievement in violation of Section 1008.24(1)(g), Florida

Statutes, and Florida Administrative Code Rules 6A-10.042(1)(e)

and 6A-10.042(1)(f). Finally, by engaging in the conduct

described Respondent failed to maintain honesty in all of his

professional dealings in violation of the Principles of

Professional Conduct for the Education Profession in Florida.

Accordingly, it is concluded that violated Section

1012.795(1)(i), Florida Statutes (2006).

42. Respondent's argument that he did not engage in any

conduct on school time, on school property, or with school

equipment or students belies the plain and unambiguous meaning

and language of the statutes and rules applicable to this

proceeding. Respondent, as a Florida educator, is held to a

high standard of conduct whether that conduct is in the

classroom or in the community. Under Florida law the activities

complained of constitute a misdemeanor of the first degree,

punishable as provided by law. By virtue of a teacher's special

role in mentoring and instructing students, teachers are held to

a high moral standard. See Adams v. Professional Practices

Council , 406 So. 2d 1170 (Fla. 1st DCA 1981). In this regard,

it is reasonably expected that teachers demonstrate honesty in

all professional dealings and not violate testing security

protocols or assist others to do so in violation of law. In

addition to the statutory and rule provisions previously cited

within the formal charges against Respondent, Respondent

abandoned a simple moral rule he would be expected to instill in

his students: not to cheat or help others to do so.

Accordingly, Petitioner has established by clear and convincing

evidence that Respondent's teaching certificate should be

disciplined for his conduct in this cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner and the Education

Practices Commission enter a Final Order that suspends

Respondent's teaching certificate for a period not to exceed one

year, imposes an administrative fine in an amount not less than

$2,000.00, and requires Respondent to take remedial instruction

regarding the ethics applicable to educators in the

State of Florida at his own expense before his certification can

be reinstated.

DONE AND ENTERED this 19th day of June, 2009, in

Tallahassee, Leon County, Florida.

________________________________

J. D. PARRISH

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 19th day of June, 2009.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices

Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Joan Stewart, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

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.