09-003006PL Dr. Eric J. Smith, As Commissioner Of Education vs. Rellen Houston Clark Status: Closed Recommended Order on Thursday, October 22, 2009.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated multiple provisions of Rule 6B-1.006 by falsifying an IEP for a student and submitting it as work product of a IEP meeting. Recommend a one-year suspension followed by probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3006PL

)

RELLEN HOUSTON CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 17, 2009, a duly-noticed hearing was held in

Starke, Florida, before Lisa Shearer Nelson, an administrative

law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Rellen Houston Clark, pro se

Post Office Box 177

Lawtey, Florida 32058

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed

the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On June 3, 2009, Dr. Eric Smith as Commissioner of Education

filed an Administrative Complaint against Respondent, Rellen H.

Clark, alleging violations of Section 1012.795(1)(d) and (j),

Florida Statutes (2006); Florida Administrative Code Rule 6B-

6B-1.006(5)(a) and (h). Respondent disputed the allegations and

requested a hearing pursuant to Section 120.57(1), Florida

Statutes. On June 3, 2009, the matter was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge.

On June 17, 2009, a Notice of Hearing was issued scheduling

the case for August 17, 2009. On August 10, 2009, Respondent

filed a Request to Dismiss Administrative Complaint. On

August 12, 2009, Petitioner filed a Motion Requesting that

Witness, Karl E. Wendell Testify at a Later Date. At hearing,

Respondent’s Motion to dismiss was considered and Respondent was

advised that, while the Administrative Law Judge could make a

recommendation to the Education Practices Commission, she did not

have the authority to dismiss the Administrative Complaint.

Respondent was also advised that the factual assertions in her

motion would need to be supported by evidence presented at

hearing. After review of the evidence presented at hearing,

Respondent's Motion to Dismiss Administrative Complaint is

denied.

Petitioner presented the testimony of Richard Ezzell,

Barbara Johns, Verdell Long, and Dr. Vivian Haynes. Petitioner’s

Exhibits 1A, 1B, and 2 were admitted into evidence. Respondent

testified on her own behalf and Respondent’s Exhibit 1 was marked

and received.

Petitioner elected not to present the testimony of Karl

Wendell, the subject of the Petitioner’s motion, noted above.

Respondent had also wished to call Mr. Wendell, who was unable to

appear due to a job interview in Orlando, Florida. The record

was left open for ten days in order to allow the parties to file

a Status Report regarding whether there was a stipulation

relating to Karl E. Wendell or if the parties needed to take his

deposition to preserve his testimony. Respondent also requested,

at the close of evidence, to make statements regarding matters

that were not the subject of testimony or documentary evidence

presented at hearing. Respondent was reminded that the

opportunity to present testimony was at the hearing.

On August 25, 2009, Respondent filed a Motion Requesting

Acceptance of Statements Pertaining to Witness Karl E. Wendell

for the Hearing dated August 17, 2009. On August 26, 2009,

Petitioner filed a Response to Respondent’s Motion Requesting

Acceptance of Statements Pertaining to Witness Karl E. Wendell

and a Motion to Strike. On August 26, 2009, the undersigned

issued an Order denying Respondent’s motion because it contained

statements regarding matters involving Karl Wendell, as opposed

to an affidavit by Mr. Wendell or stipulation of fact between the

parties. Furthermore, the motion had attached to it several

documents not presented at the hearing. On August 26, 2009,

Respondent also filed a letter confirming LEA for Believer’s

School of Learning was filed.

On September 4, 2009, Petitioner filed a Continuing

Objection to Respondent’s Post-hearing Submissions and Motion to

Strike. That same day, Respondent filed a Motion to Set Aside

Order Denying Respondent’s Request to Accept the Statement

Pertaining to Karl Wendell for Hearing August 17, 2009.

Respondent’s Motion to Set Aside is denied. The documentation

submitted post hearing has not been considered in the preparation

of this Recommended Order.

On September 8, 2009, Respondent filed a Motion Requesting a

New Administrative Law Judge. The motion requested an

administrative law judge who has the authority to dismiss the

case against her. By Order dated September 29, 2009, the motion

was denied as untimely. See § 120.665, Fla. Stat. Moreover, as

stated in the Order, all administrative law judges at the

Division, not simply this administrative law judge, have

recommended order authority as opposed to final order authority

with respect to disciplinary cases prosecuted by Petitioner.

§ 120.57(1), Fla. Stat.

The proceedings were recorded and the Transcript was filed

with the Division on August 28, 2009. At the request of the

parties, the time for submission of proposed recommended orders

was extended to September 30, 2009. Both parties timely

submitted post-hearing proposals, and they have been carefully

considered in the preparation of this Recommended Order. All

references to the Florida Statutes are to the 2005 codification

unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the head of the state agency responsible

for certifying and regulating public school teachers in the State

of Florida.

2. At all times relevant to these proceedings, Respondent

has been licensed in the fields of elementary education and

exceptional student education. Her Florida education certificate

number is 840291. Her certificate expires on June 30, 2010.

3. Respondent was employed by the Bradford County School

District from 1994 to 1996, from 1998 to 2001, and finally from

2004 to 2007. She has worked as a substitute teacher, a parent

specialist, and a teacher of varying exceptionalities. At the

time of the events alleged in the Administrative Complaint,

Respondent was the principal and teacher at Believer's School of

Learning (Believer's School) in Bradford County School District.

4. Believer's School was a charter school, for grades K-3,

meant to give alternatives to traditional public school. Charter

schools fulfill various purposes such as improving student

learning and increasing learning opportunities. With respect to

the Believer's School, a special emphasis was placed on low-

performing students and reading.

5. An "exceptional student" is defined by Section

1003.01(3)(a), Florida Statutes, as:

[A]ny student who has been determined

eligible for a special program in accordance

with rules of the State Board of Education.

The term includes students who are gifted and

students with disabilities who have an

intellectual disability; autism spectrum

disorder; a speech impairment; a language

impairment; an orthopedic impairment; an

other health impairment; traumatic brain

injury; a visual impairment; an emotional or

behavioral disability; or a specific learning

disability, including, but not limited to,

dyslexia, dyscalculia, or developmental

aphasia; students who are deaf or hard of

hearing or dual sensory impaired; students

who are hospitalized or homebound; children

with developmental delays ages birth through

5 years, or children, ages birth through 2

years, with established conditions that are

identified in State Board of Education rules

pursuant to s. 1003.21(1)(e).

6. Respondent had Exceptional Student Education (ESE)

students in her school.

7. Believer’s School was required to follow federal and

state guidelines with respect to ESE students. Those

requirements include keeping complete, current and accurate

records with respect to exceptional education students. These

recordkeeping requirements are required by federal and state law

and are necessary for the school system of Bradford County, of

which Believer's School was a part, to remain eligible for

federal and state funds allocated to pay costs associated with

educating exceptional students.

8. In accordance with Florida Administrative Code Rule 6A-

6.03028(3), Respondent was required to prepare an Individual

Education Plan (IEP) for each ESE student attending Believer's

school. Rule 6A-6.03028(3) states:

(3) IEP Requirements. An IEP or individual

family support plan (IFSP) must be developed,

reviewed, and revised for each eligible

student or child with a disability served by

a school district, or other state agency that

provides special education and related

services either directly, by contract, or

through other arrangements, in accordance

with this rule. Parents are partners with

schools and school district personnel in

developing, reviewing, and revising the IEP

for their student.

9. An IEP is necessary to evaluate the student's

educational level, to establish short and long-term educational

objectives, to develop alternative ways to accomplish those

objectives, and to record the progress of the plan and establish

a means for review of the student's educational progress.

10. The proper preparation and maintenance of an IEP is a

basic responsibility of the Respondent for exceptional education

students at Believer's School. An improperly prepared IEP is

potentially harmful to the learning of an ESE student because

services and accommodations must be listed on the student's IEP

before they can be provided.

11. IEP’s are created by an IEP Team during a meeting

involving the parties as set out in Florida Administrative Code

Rule 6A-6.03028(3)(c) as follows:

(c) IEP Team participants. The IEP Team,

with a reasonable number of participants,

shall include:

1. The parents of the student;

2. Not less than one (1) regular education

teacher of a student with a disability...

3. Not less than one (1) special education

teacher of the student, or where appropriate,

not less than one special education provider

of the student;

4. A representative of the school district

who is qualified to provide or supervise the

provision of specially designed instruction

to meet the unique needs of students with

disabilities, is knowledgeable about the

general curriculum, and is knowledgeable

about the availability of resources of the

school district. . .

5. An individual who can interpret the

instructional implications of evaluation

results who may be a member of the IEP Team

as described in subparagraphs (3)(c)3., or

(3)(c)4., of this rule;. . .

12. Upon completion, the IEP is signed by the regular

education teacher, the ESE teacher, the local education agency

(LEA), and the parent or guardian of the student.

13. The LEA is ultimately responsible for what goes into

the IEP. If something is in the IEP it is because the LEA

determined that it was feasible to carry out.

14. The ESE teacher examines the psycho-educational reports

and the specialized needs of the student. He or she often

provides strategies to the regular education teacher to use with

the ESE student.

15. The regular education teacher is the most familiar with

the curriculum being used for the student’s grade level. He or

she provides insight as to how that curriculum can be adapted for

the ESE student.

16. Members of the IEP Team for an ESE student are supposed

to be teachers and individuals associated with the student’s

current grade level and involved in the student's education, in

order to provide accurate curriculum and services for the

student.

17. The IEP Team is supposed to review the child’s test

scores or have access to the child, know about the curriculum

being used, and what types of accommodations an ESE student of

the particular grade level would need.

18. By signing the IEP, the individual team members are

stating they met to discuss the ESE student, to develop goals and

objectives and services for the student, and that they will

follow up on making sure those goals and objectives are met.

19. IEP's are updated on an annual basis. The annual IEP

conference is mandatory, and failure to provide such a conference

is a violation of federal, state, and School Board rules and

policies. Failure to hold such a conference deprives the parents

of the exceptional student any meaningful participation in

determining the student's educational goals and may deprive the

child of the assistance to which he or she is entitled. It also

jeopardizes continued state and federal funding of the School

Board's exceptional education program.

20. Respondent was instructed, as were other teachers of

exceptional students in the school district, that every IEP must

be reviewed at least once a year through an annual IEP

conference. Respondent was trained in how to prepare IEPs by the

Bradford County School District on July 19, 20, and 21, 2005.

21. Florida Administrative Code Rule 6A-6.03028(3)(b)

requires that the school notify parents of an ESE student that an

IEP meeting is scheduled prior to the IEP Team Meeting taking

place. This notification is more than a formality; it is meant

to insure meaningful participation by parents or guardians in the

IEP process. Rule 6A-6.03028(3)(b) states as follows:

(b) Parental participation in meetings.

Each school district shall establish

procedures that provide the opportunity for

one or both of the student’s parents to

participate in meetings and decisions

concerning the IEP for the student. Parents

of each student with a disability must be

members of any group that makes decisions on

the educational placement of their student.

Procedures to ensure participation in

meetings shall include the following:

1. Notifying parents of the meeting early

enough to ensure that they will have an

opportunity to attend; and

2. Scheduling the meeting at a mutually

agreed on time and place.

3. A written notice of the meeting must be

provided to the parents and must indicate the

purpose, time, and location of the meeting,

and who, by title or position, will be

attending. . . .

* * *

6. A meeting may be conducted without a

parent in attendance if the school district

is unable to obtain the attendance of the

parents. In this case, the district must

have a record of its attempts to arrange a

mutually agreed on time and place, such as:

a. Detailed records of telephone calls made

or attempted and the results of those calls;

b. Copies of correspondence sent to the

parents and any responses received; and

c. Detailed records of visits made to the

parents’ home or place of employment and the

results of those visits.

22. To comply with Rule 6A-6.03028(3)(b), it is Bradford

County School District’s policy to send out a Parent Notification

Form 10 days prior to an IEP team meeting. A few days after the

first notification was sent, a second notification is sent to the

parent. After the two written notifications are sent, a phone

call is made to the parent of the ESE student.

23. Student S.B. began school in the Bradford County School

District when she was in pre-K. She was identified as a student

with developmental disabilities. In 2005, she was living in

Richmond, Virginia, and found to be eligible for exceptional

education services as a student with a developmental disability.

Upon return to Florida, S.B. was enrolled in Southside Elementary

on March 17, 2005. In May 2005, an IEP team met, determined that

S.B. was a student with specific learning disabilities, and

developed an IEP outlining the services required for S.B.

Without those services, S.B. would not receive a free appropriate

public education as contemplated under the Individuals with

Disabilities Education Act (IDEA), or Florida law regarding the

provision of exceptional education.

24. IEPs for exceptional education students are required to

be completed every year before the prior year’s IEP expires.

S.B.’s next IEP was due on May 17, 2006.

25. On February 13, 2006, S.B. enrolled in Respondent’s

charter school, Believer's School of Learning, approximately

three months before S.B.’s next IEP was due. There was

apparently some delay in providing S.B.'s May 2005 IEP to

Respondent, but the length of the delay is unclear.

26. In order for a school district to receive the extra

funding for its ESE students all the ESE students’ IEP’s must be

current by "FTE week." FTE week is when the schools determine a

final head count of all the students that are in attendance.

27. The FTE week for Bradford County School District in

2006 was October 13, 2006. All the ESE students within the

school district had to have their IEPs in by that date or the

schools would not receive the extra funding associated with that

student. If S.B.’s IEP was not turned in before October 13,

2006, Believer's School would have only received its normal

funding only instead of the additional ESE funding.

28. As of the last week of September 2006, Respondent had

not completed the IEP for S.B. In late September, Respondent

called Verdell Long, and asked for some assistance in preparing

an IEP for a third grader. On September 28, 2006, Respondent met

with Verdell Long, at Bradford County High School, during

Ms. Long’s lunch break, for assistance with preparing an IEP for

a third grader at her charter school.

29. Verdell Long was a high school teacher at Bradford

County High School who had worked with ESE students, with a focus

on mental retardation from grades K-12. She had assisted

Respondent with IEPs in the past. She understood that she was

was Respondent’s intention to use the product created as an IEP

for the student S.B.

30. The day of the meeting Verdell Long’s computer was not

working so she could not access the IEPs she had on file. She

asked another high school teacher, Dr. Vivian Haynes to assist in

the meeting.

31. Dr. Haynes was an ESE teacher at Bradford County High

School in September 2006. She was very experienced with

preparing and writing IEPs, having just completed a doctoral

dissertation which included copies of third and fifth grade IEPs.

Dr. Haynes had not previously met Respondent.

32. Dr. Haynes brought several blank “dummy” IEPs with her

to the meeting in order to have examples to show Respondent.

33. The IEP prepared at the meeting included the various

components of an IEP, such as the measurable goals and objectives

for a third grader, but did not include the demographic

information on any student. The document prepared at the meeting

did not have a student’s name or test scores on it anywhere.

34. Respondent did not bring the student S.B. or her test

scores with her to the meeting. However, neither Ms. Long nor

Dr. Haynes expected to see individualized information because

they did not understand that an IEP for an actual child was being

prepared.

35. Verdell Long signed the IEP as the ESE teacher,

Dr. Vivian Haynes signed as the LEA, and Respondent signed as the

regular education teacher.

36. Neither Verdell Long nor Dr. Vivian Haynes was

contracted with Believer's School by the Bradford County School

District to provide services as an LEA representative or an ESE

teacher.

37. Both Verdell Long and Dr. Vivian Haynes believed the

purpose of the meeting was to construct a model IEP in order to

assist Respondent with properly preparing an IEP for an ESE

student. Neither expected the document created at their meeting

to be submitted as an actual IEP for S.B., or any other student,

and neither considered the meeting to be an IEP team meeting.

38. Neither Verdell Long nor Dr. Vivian Haynes was shown a

Parent Notification Form indicating that their meeting was to be

an IEP team meeting. Neither would have signed the IEP if they

had seen such a form because they did not believe that an IEP

team meeting was being conducted.

39. After the meeting on September 28, 2006, Respondent

took the IEP form prepared with the help of Ms. Long and

Dr. Haynes, and inserted information specific to S.B. She then

submitted the form as S.B.’s IEP and turned in to the Bradford

County School District.

40. Submitted with the IEP form was a document which

purported to be the Notification of Meeting Form for the IEP team

meeting. Only one notification is referenced. The form was

dated September 15, 2006, and identified Dr. Vivian Haynes and

Verdell Long as participants in the meeting, notwithstanding

Respondent's acknowledgement that she did not meet Dr. Haynes

until September 28, 2006, and did not know until that time that

Dr. Haynes would be participating in the meeting. The form also

indicated that the IEP meeting would take place at the Believer's

School, as opposed to the Bradford County High School, where the

meeting between Respondent, Ms. Long and Dr. Haynes took place.

There is no other indication of other attempts of notification.

The signature line reserved for a parent or legal guardian is

signed by a Rudolph Williams and dated September 29, 2006, the

day after the meeting took place. Respondent claims that

Mr. Williams is S.B.'s stepfather. However, there is nothing in

the Bradford County School District's records to indicate that

Mr. Williams is a parent or legal guardian of S.B., and school

district officials were not aware of anyone by that name living

in the home.

41. By her own admission, Respondent did not keep "official

records" for any of her students, including ESE students. She

was not particularly concerned with who signed the IEP, because

she apparently considered it to be simply a matter of paperwork

to be filed with the School District. In her view, the person

responsible for ensuring that a child is receiving the

appropriate education is her teacher, regardless of the

directives in the IEP. She felt that some of the things

identified as required simply could not be done at a school her

size. She did not consider the role of the LEA and the ESE

teacher on the IEP to be all that important. To her, the real

responsibility for the child's education lay with the teacher who

worked with her on a daily basis.

42. S.B. was later withdrawn from Believer's School and now

attends Starke Elementary School. Believer's School has since

closed and is no longer operating as a charter school.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

44. Petitioner bears the burden of proof to demonstrate the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Sterne & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

45. Clear and convincing evidence:

requires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be

precise and lacking in confusion as to

the facts at issue. The evidence must

be of such a weight that it produces in

the mind of the trier of fact a firm

belief or conviction, without hesitancy,

as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

46. Section 1012.795(1), Florida Statutes, gives the

Education Practices Commission the power to suspend or revoke the

teaching certificate of any person, or to impose any penalty

provided by law, if he or she is guilty of certain specified

acts.

47. The Administrative Complaint alleges the following

facts:

3. In or around October 2006, the Respondent

intentionally submitted a false or fraudulent

Individualized Education Plan (IEP) for an

exceptional student education (ESE) student

without conducting a proper assessment or IEP

meeting.

48. Clear and convincing evidence was presented to

demonstrate Respondent met at Bradford County High school on

September 28, 2006, with teachers Verdell Long and Dr. Vivian

Haynes to prepare a mock IEP in relation to S.B., an ESE student

at Believer's School. Clear and convincing evidence was

presented to demonstrate neither Verdell Long nor Dr. Vivian

Haynes intended the IEP prepared at the meeting to be an actual

IEP for student S.B. Furthermore, clear and convincing evidence

was presented that neither Verdell Long nor Dr. Vivian Haynes had

ever seen the Parent Notification Form indicating that their

meeting was an IEP meeting, and neither would have signed the IEP

if the Parent Notification Form had been shown to them at the

meeting. Neither instructor believed that she was part of an IEP

Team for an actual student. Finally, clear and convincing

evidence was presented that a failure to properly prepare an IEP

for a student could result in harm to the student’s learning.

49. The Administrative Complaint alleges in Counts One and

and (j), Florida Statutes, which provide:

(1) The Education Practices Commission may

suspend the educator certificate of any

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

up to 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 up to 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 an order of the court or

notice by the Department of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education Rules.

50. Immorality and moral turpitude are both defined in

Florida Administrative Code Rule 6B-4.009:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual’s service to the

community.

(6) Moral turpitude is 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 man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

51. The Supreme Court of Florida has also defined moral

turpitude as “anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated.” State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

52. As the Department of Education has defined moral

turpitude in terms of criminal behavior, no further examination

of the facts are necessary to determine that the actions here do

not constitute acts of moral turpitude. No criminal behavior is

alleged or proven. Neither do the acts proven justify the

conclusion that Respondent committed an act of gross immorality.

Here, Respondent represented that the IEP created during the

lunch meeting on September 28, 2006, was a mock IEP not intended

for submission to the Bradford County School District. Altering

the document to include the specific demographic information for

student S.B. and then submitting it to the School District, while

wrong and immoral, is not conduct "sufficiently notorious to

bring the individual concerned or the education profession into

public disgrace or disrespect and impair the individual’s service

to the community." See Rule 6B-4.009(2). Indeed, no evidence

was presented to indicate Respondent's behavior impaired her

service to the community or brought public disgrace or disrespect

to the education profession. Count One has not been established.

53. Whether Count Two of the Administrative Complaint has

been proven depends on whether any of the rule violations alleged

in Counts Three to Seven has been established.

54. Counts Three, Four, and Five of the Administrative

Complaint allege violations of Florida Administrative Code Rule

6B-1.006(3)(a), (d), and (f), which provide:

(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 provided

by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student’s academic placement.

* * *

(f) Shall not intentionally violate or deny

a student’s legal rights.

55. A student with a disability is granted the legal right

to free, appropriate public education pursuant to the IDEA, 20

U.S.C. § 1400, and Section 1000.05(2), Florida Statutes. Section

1000.05(2), provides in pertinent part:

(2)(a) ...No person in this state shall, on

the basis of race, ethnicity, national

origin, gender, disability, of marital

status, be excluded from participation in, be

denied the benefits of, or be subjected to

discrimination under any public K-20

education program or activity...

* * *

(c) All public K-20 education classes shall

be available to all students without regard

to race, ethnicity, national origin, gender,

disability, or marital status; however, this

is not intended to eliminate the provision of

programs designed to meet the needs of

students with limited proficiency in English,

gifted students, or students with

disabilities or programs tailored to students

with specialized talents or skills.

56. A child with a disability must have an IEP developed in

accordance with the Federal Individuals with Disabilities

Education Act, 20 U.S.C. § 1414, and with Florida Administrative

Code Rule 6A-6.03028. .

57. In order to determine if Rule 6B-1.006(3)(a) has been

violated as charged in Count Three, one must consider if the

untimely and/or improper filing of an IEP for an ESE student

creates a condition harmful to a student’s learning. Here, S.B.

was missing an IEP from May 17, 2006, until September 29, 2006,

when the IEP relating to these events was filed with the Bradford

County School District. During the intervening months from May

to September, S.B. may not have been receiving the type and

quality of education that she was entitled to as an ESE student.

Failure to receive the services and accommodations she required

could have a negative impact on her learning. Likewise, an

improperly prepared IEP could prevent an ESE student from

obtaining the proper services and accommodations necessary for

the ESE student and could prevent the involvement of the LEA and

ESE teacher as required by Rule 6A-6.03028. While no evidence

was presented from which S.B.'s educational progress during this

time could be evaluated, the failure to have a proper IEP in

place is not only a violation of state and federal law, but is an

indication that appropriate benchmarks were not being observed.

The late and improper filing of the IEP created a condition

harmful to the learning of the student, S.B. Count Three has

been established in this case.

58. A violation of Rule 6B-1.006(3)(d) as charged in Count

Four has occurred if Respondent intentionally suppressed or

distorted subject matter related to the student’s academic

program. Respondent took a mock IEP created on September 28,

2006, and altered it to serve as an actual IEP for one of her

students. During the meeting no demographic information, such as

the student’s name or test scores, was included in the mock IEP.

Afterwards, this information was added and then submitted to the

Bradford County School District as the actual IEP for the

student, S.B. In submitting the IEP to the School District,

Respondent represented that the individual signatories listed on

the IEP were involved with S.B.’s academic program and would be

fulfilling the roles for which they signed, and represented that

an actual IEP team meeting to discuss the individual student,

S.B., had taken place. Neither Ms. Long nor Dr. Haynes had the

intention of fulfilling those roles. Claiming that members of

the IEP Team were involved with S.B.’s education when they were

not is a distortion of the subject matter relating to a student’s

education. Count Four has been established in this case.

59. A violation of Rule 6B-1.006(3)(f) requires a

determination that Respondent intentionally violated or denied

S.B.’s rights as a student. Respondent intentionally submitted

the improper IEP, which violated S.B.'s right to have a properly

prepared IEP in place. Count Five has been established by clear

and convincing evidence.

60. Counts Six and Seven of the Administrative Complaint

allege violations of Florida Administrative Code Rule 6B-

1.006(5)(a) and (h), which provide:

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

61. Rule 6B-1.006(5)(a) requires Respondent to maintain

honesty in all professional dealings. Here, Respondent asked for

assistance in preparing an IEP for a student of hers which led to

the meeting on September 28, 2006. During the meeting it was

clear that a mock IEP was being made in order to assist

Respondent in how to create an IEP for a third grade ESE student.

By failing to inform the other two individuals that she intended

to use the mock IEP as a real IEP for S.B., and submitting the

IEP prepared as the work product of an IEP meeting that never

actually took place, Respondent did not maintain honesty in all

her professional dealings. Count Six is established in this

case.

62. For a violation of Rule 6B-1.006(5)(h) as charged in

Count Seven, Petitioner must demonstrate that Respondent

submitted fraudulent information on any document in connection

with professional activities. For the reasons expressed with

respect to Count Four, Count Seven is established in this case.

63. Because Petitioner has demonstrated by clear and

convincing evidence the violations alleged in Counts Three

through Seven, it has also demonstrated that Respondent has

violated Count Two.

64. Based on the foregoing, Respondent is guilty of Counts

Two through Seven, but not guilty of Count One. Section

1012.796(7), Florida Statutes, provides the range of lawful

penalties for violations of Section 1012.795:

(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 a administrative or

supervisory endorsement on a teaching

certificate. . . .

(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 . . . on

probation and subject to such conditions as

the commission may specify . . .

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher . . . 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, . . . to the recovery

network program provided in s. 1012.798 under

such terms and conditions as the commission

may specify.

65. The Education Practices Commission’s Disciplinary

Guidelines listed in Florida Administrative Code Rule 6B-

11.007(i)(22), provide that the recommended punishment for

Respondent’s violations ranges from probation to revocation of

her education certificate. In determining the appropriate

penalty for Respondent, the undersigned has taken into

consideration whether Respondent had any intention to harm the

student involved and concludes that she had no such intent.

However, her view that the IEP is simply a matter of necessary

paperwork demonstrates that Respondent does not understand the

gravity of her actions and should not be in a position where she

is working as independently as she did while running a charter

school. She needs to work, at least for a while, in a supervised

setting where she can participate in the education of students in

the manner contemplated by the IDEA. The penalty suggested by

Petitioner is overly harsh, especially in light of the fact that

the conditions giving rise to the facts in this case no longer

exist. A shorter suspension, followed by probation, is the

logical penalty because it recognizes the seriousness of the

violations proven and provides for Respondent the type of

structure that was lacking during the period described in the

Administrative Complaint.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding Respondent to be

guilty of the violations alleged in Counts Two through Seven and

dismissing Count One of the Administrative Complaint; imposing a

fine of $500; suspending her certificate for one year and placing

Respondent on probation for a period of three years.

DONE AND ENTERED this 22nd day of October, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October, 2009.

ENDNOTE

1/ The rule identifies the violation as §456.072(1)(gg), Fla.

Stat. However, the violation was renumbered in § 456.072 as (hh)

in 2006. §2, Ch. 2006-207, Laws of Fla. The rule has not been

amended since that time.

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Rellen Clark

Post Office Box 177

Lawtey, Florida 32058

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

325 West Gaines Street, Room 1244

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

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.