10-003689PL Dr. Eric J. Smith, As Commissioner Of Education vs. Caren Christine Olsen Status: Closed Recommended Order on Tuesday, September 27, 2011.

Summary: Respondent failed to act honestly in presenting false certificate of completion of ESOL Class; recommended suspension of teaching certificate for a period not to exceed one year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS ) )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

vs. ) Case No. 10-3689PL

)

CAREN CHRISTINE OLSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the formal hearing was commenced by

video teleconference on September 1, 2010, before J. D. Parrish,

a designated Administrative Law Judge of the Division of

Administrative Hearings, with the parties appearing from

Orlando, Florida. As set forth below, the hearing was not

concluded until September 1, 2011.

APPEARANCES

For Petitioner: Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Richard W. Withers, Esquire

Joseph C. Shoemaker, Esquire

Bogin, Munns and Munns, P.A.

628 South Fourteenth Street

Leesburg, Florida 34748

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Caren

Christine Olsen (Respondent), committed the violations alleged

in an Administrative Complaint issued April 20, 2010, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On April 20, 2010, 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 the submission of a certificate

of completion for an English for Speakers of Other Languages

(ESOL) class. Petitioner alleged that Respondent had submitted

the certificate even though, in fact, she had not duly completed

the class. In doing so, Petitioner maintained Respondent had

violated provisions of section 1012.795, Florida Statutes

(2009), and rule set forth in rule 6B, Florida Administrative

Code. Based upon Respondent's conduct, Petitioner alleged that

the Education Practices Commission should take disciplinary

measures against Respondent's teaching certificate.

Through her attorney, Respondent disputed paragraphs four

and five of the Administrative Complaint and requested a formal

hearing. The case was forwarded to the Division of

Administrative Hearings for formal proceedings on June 24, 2010.

A Notice of Hearing was issued on July 7, 2010, and the

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

presented testimony from Anthony Biggs, Susan Barnhill, Alfred

Lopez, Harold Border, Caren Olsen, and Jason Olsen.

Petitioner’s Exhibits A through F were admitted into evidence.

The Transcript of the proceeding conducted on September 1, 2010,

was filed with the Division of Administrative Hearings on

September 9, 2010.

On September 20, 2010, Respondent moved to reopen the

record. Essentially, Respondent maintained that new evidence

had been recovered that might convince Petitioner to reconsider

the decision in this case. Petitioner did not oppose the

request. Accordingly, the parties were afforded additional time

so that Petitioner witness(es) could review the new material.

Eventually, the case was rescheduled to complete the taking

of evidence regarding the newly discovered material on July 7,

2011. Due to a notice defect, Respondent did not appear on that

date.

The hearing was next noticed to be completed on

September 1, 2011. Prior to that hearing date, counsel for

Respondent moved to withdraw its representation.

On September 1, 2011, Respondent did not participate in the

conference call that was conducted to complete the evidence in

this matter. At the scheduled time for the hearing, counsel for

Respondent, Joseph C. Shoemaker, and the undersigned

participated in the telephone conference. Mr. Shoemaker renewed

his Motion to Withdraw as Counsel for Respondent. Mr. Shoemaker

represented that Respondent had been afforded notice of the

request to withdraw, as well as the date, time, and method of

the conference call to complete the hearing. After waiting not

less than 15 minutes for Respondent to call in, Mr. Shoemaker’s

request to withdraw was granted and the record in this cause was

closed. Subsequently, in accordance with the directive of the

undersigned, Mr. Shoemaker filed copies of the certified

receipts that referenced notice being provided to Respondent.

The parties were granted until September 12, 2011, to file

proposed recommended orders. Petitioner’s proposal was timely

filed and has been 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.

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

Respondent held Florida Educator's Certificate No. 999159,

covering mathematics, which was valid through June 30, 2010.

3. At all times material to this case, Respondent was

employed at Freedom High School in Orange County, Florida. As a

secondary teacher, Respondent was required to complete ESOL

training.

4. In order to meet the ESOL requirement, on or about

January 14, 2008, Respondent enrolled in an ESOL class taught by

Mr. Biggs. Mr. Biggs was a district compliance specialist who

was fully approved to teach the ESOL class. He required that

participants in the ESOL course attend all of the class

sessions.

5. The ESOL class requirements were: attendance at the 14

sessions, pre- and post-curriculum tests, completion of a

portfolio of the course, and completion of a final evaluation of

the course.

6. Although enrolled in Mr. Biggs’ class, Respondent did

not attend all of the class sessions. According to Mr. Biggs,

Respondent left the class after the tenth session and did not

return.

7. In addition to missing the last sessions, Respondent

did not turn in the portfolio or complete the evaluation of the

course. Although Respondent maintained she had completed the

portfolio, Mr. Biggs did not have record of such completion.

8. In April 2009, Respondent was required to present a

certificate that verified she had completed the aforementioned

ESOL class. Although Respondent presented a certificate of

completion for the ESOL course to school personnel, record of

the credit for such completion could not be located.

9. Eventually, it was discovered that Respondent did not

have credit for the class because she had not completed the

class and had not been given a certificate of completion by the

instructor (Mr. Biggs). Thus, the issue of how Respondent could

present a certificate of completion when none had been issued

was raised by Orange County School District personnel.

10. In fact, the certificate presented by Respondent

lacked the Orange County Public School logo. In follow-up to

this discovery, Respondent’s principal initiated a formal

investigation to resolve the matter. When it was determined

that Respondent could not produce a valid certificate of

completion for the ESOL course, Respondent’s employment with the

Orange County School District was terminated.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

Stat.

12. Section 1012.796(6), 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.

13. Section 1012.796(7), 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.

14. Section 1012.795, 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 certificate holder 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.

15. 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 rule 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.

16. 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 Dep’t of Banking & Fin, Div. of Sec. &

Inv. Prot. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

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

17. 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 Respondent

presented a false or unauthorized certificate of completion to

Orange County Schools in an effort to demonstrate completion of

the ESOL class when, in fact, she had not met the requirements

of completion.

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

concluded that Respondent failed to act honestly in connection

with the presentation of the false certificate of completion.

19. By virtue of a teacher's special role in mentoring and

instructing students, teachers are held to a high moral

standard. See Adams v. Prof’l Prac. Cncl , 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 the requirements of employment. Respondent was

required to complete the ESOL course, did not do so, submitted a

false certificate of completion, and failed or otherwise refused

to explain the matter. The lack of candor and submission of the

false certificate when she had not completed the ESOL course

demonstrate a lack of honesty. Accordingly, Petitioner has

established by clear and convincing evidence that Respondent's

teaching certificate should be disciplined for her 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.

DONE AND ENTERED this 27th day of September, 2011, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 27th day of September, 2011.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Caren Christine Olsen

2429 Shelby Circle

Kissimmee, Florida 34743

Lois Tepper, Interim 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 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.