10-010515PL Dr. Eric J. Smith, As Commissioner Of Education vs. James Brunson Brown Status: Closed Recommended Order on Tuesday, May 31, 2011.

Summary: Respondent misrepresented that two students completed courses they had not and altered records to substantiate his claims. Recommend suspension followed by probation, a reprimand and ethics courses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10515PL

)

JAMES BRUNSON BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 20, 2011 , a duly - noticed hea ring was held in

Madison , Florida , before Lisa Shearer Nelson , an Administrative

Law Judge assigned by the Division of Adm inistrative Hearings .

APPEARANCES

For Petitioner: J. David Holder, Esquire

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

For Respondent: Dr. James B. Brown, pro se

Post Office Box 584

Madison, Fl orida 32341

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 1012.795(1)(d), (g) or (j), Florida Statutes (2009) , or

Florida Administrative Code Rule 6B - 1.006(5)(a) or (h), as

alleged in the Administrative Compla int, and if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

On October 18, 2010, Dr. Eric J. Smith, as Commissioner o f

Education (Petitioner) , filed a five - count Administrative

Complaint against Respondent, alleging that Respondent, James

Bru nson Brown (Respondent or Dr. Brown), violated section

1012.795(1)(d), (g) and (j), and Florida Administrative Code Rule

6B - 1.006(5)(a) and (h). Respondent, through counsel, disputed

the allegations in the Administrative Complaint and requested a

hearing pursuant to section 120.57(1), Florid a Statutes. On

December 9, 2010 , the case was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge.

The case was originally scheduled for hearing February 17,

2011. Ho wever, on January 27, 2011, Respondent filed an

Unopposed Motion for Continuance, alleging that he had discharged

his counsel; that he was representing himself in a separate

proceeding scheduled for February 21 - 22, 2011; and that he needed

additional time to prepare for hearing. Eventually the case w a s

rescheduled for hearing April 20, 2011, and proceeded as

scheduled.

Prior to hearing, however, Petitioner filed a Motion to

Compel, alleging that Respondent had not filed any responses to

Petitioner's outst anding discovery requests, despite the fact

that Petitioner had agreed to extend the time for responding to

the discovery by approximately two weeks. The motion was served

by mail on January 31, 2011. Respondent did not respond to the

motion, although gi ven ample time to do so. On March 10, 2011,

an Order Granting Motion to Compel was rendered, directing

Respondent to respond to Petitioner's interrogatories and

request s for production no later than March 18, 2011. Respondent

was advised in the Order tha t failure to respond to discovery in

compliance with the Order would preclude the admission at hearing

of any evidence that should have been identified in response to

the outstanding discovery.

The parties filed a Joint Pre - Hearing Stipulation, signed by

both counsel for Petitioner and by Dr. Brown, on April 11, 2011.

In the Prehearing Stipulation, Respondent indicated that he might

call a single witness, Julia Waldrep. He did not list any

exhibits to be introduced into evidence. However, at the

commenc ement of the hearing, there were other witnesses present

who had been subpoenaed by Dr. Brown. Petitioner objected to

these witnesses testifying, and Dr. Brown acknowledged that only

Ms. Waldrep was listed as a possible witness for him, and that he

had no t provided counsel for Petitioner any discovery materials

required by the Order Granting Motion to Compel. The additional

witnesses were not allowed to testify, and documents that

Respondent had not provided to counsel for Petitioner were not

admitted int o evidence.

Petitioner presented the testimony of Elizabeth Hodge,

Michael Akes, and Lou Miller, and Petitioner's Exhibits 1 - 16 were

admitted into evidence. Respondent testified on his own behalf

and pre sented the testimony of Julia Wal drep. The Trans cript of

the proceedings was filed with the Division on May 5, 2011.

Respondent filed a Proposed Recommended Order along with

"Respondent's Proposed Exhibits" on May 2, 2011. In response,

Petitioner filed a Motion to Exclude Respondent's Post - Hearing

Fil ing of Documents, following which Respondent filed a Second

Recommended Order on May 12, 2011. Both Respondent's "Proposed

Exhibits" and Second Recommended Order refer to matters that were

not introduced at hearing. Petitioner's Motion to Exclude is

gran ted, and these documents have not been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida Educator's certificate 309900,

covering the area of mathematics. Respondent's certificate is

valid through June 3 0, 2012.

2. During the 2008 - 2009 school year, Respondent was a

teacher at the Madison County Excel School (Excel) in the Madison

County School District (the District) .

3. Excel is a non - traditional school, and students who

attend Excel are either behin d academically or have other

problems that result in their removal from a traditional school

setting.

4. Instruction at Excel is self - paced, using a computer

program. Seventy percent of a student's grade for a class would

be based upon computer - generated assignments, 20 percent would be

class work from a teacher and 5 percent would be based upon

participation. Once a student completed the course work, the

student had to take and pass an exam. Once students finished the

material for one subject, they cou ld begin work in another

subject in the same grade period. However, students needed to

register for each course before they could take it.

5. There were three different computer programs used at

Excel that are relevant to this case. The A system was the

program used for computer - based instruction. Pinnacle was the

official, computer - based grade book and attendance record. MIS

was used to maintain the permanent educational record for each

student, including what classes a student took and what grade was

assigned for each subject.

6. At the end of each semester, teachers were required to

verify each grade that a student was to receive, so that no

student's work would be missed. The teacher's signed

verification s heets for grades were meant to e nsure that all

students received credit for all courses the students completed.

7 . During the 2008 - 2009 school year, Respondent maintained

a written grade book in which he maintained his grade and

attendance records for students in his classes.

8 . The District 's policy required that teachers enter

grades into the Pinnacle system regularly for each student in

each course. Use of Pinnacle had been required since the 2007 -

2008 school year. In the fall of 2008, Respondent resisted

following the policy because he felt it penalized students who

were already far behind their peers.

9 . On or about Februar y 17, 2009, Excel's principal,

Elizabeth Hodge, issued a reprimand to Respondent for failing to

properly post grades into Pinnacle for his students. Respondent

su bsequently discontinued use of his handwritten grade book and

presumably began using Pinnacle for the recording of his

students' grades.

10. Q.F. and S.B . were Respondent's students at Excel

during the 2008 - 2009 school year. S.B. was in Respondent's

firs t, third , and sixth - period classes and Q.F. was in

Respondent's second, fourth , and fifth - period classes. Both

students enrolled at Madison County High School during the 2009 -

2010 year.

Student S.B.

11. During the first semester of the 2008 - 2009 school y ear,

S.B. was in Respondent's class, enrolled in integrated math

during the third period, and earned a semester grade of 93 for

that subject. During the second semester, with Respondent as her

teacher, S.B. began but did not complete Economics. No eviden ce

was presented to demonstrate that Respondent ever completed a

grade verification sheet to indicate that S.B. completed

Economics.

12. At the beginning of the 2009 - 2010 school year, the

guidance staff at Madison County High School placed S.B. into

cla sses that Pinnacle showed were appropriate for her. One of

those classes was E conomics. S.B. objected, stating that she had

already completed E conomics while at Excel.

13. In order to demonstrate that she had taken E conomics,

S.B. went to Respondent a nd asked that he provide to the high

school confirmation that she had completed the E conomics course.

Respondent prepared and sent to Madison High School a letter

dated November 17, 2009, in which he stated:

This is to acknowledge that I was the

instructor of record for [S.B.] in the school

year 2007 - 08 [sic]. She completed the second

semester of Biology and Economics.

Our input system at Excel failed to

grant these credits due to employee turnover

and untimely submission of grades. At the

time, we w ere in the process of changing

principals and losing our data entry

personnel.

I can assure you that [S.B.] earned in

87 in Biology and 83 in Economics. We at

Excel regret any unnecessary in convenience

that [S.B.] might have suffered.

14. Madison Hi gh School officials were still unable to

substantiate S.B.'s completion of Economics, and requested

Respondent to provide documentation to verify his statements in

his November 17, 2009, letter.

15. Respondent prepared and sent to Madison County High

S chool officials a letter dated January 11, 2010, to which he

attached a copy of a page from his grade book. The page

contained names of students, with grades for the fall semester of

the 2008 - 2009 school year. The grade book page did not contain

any info rmation regarding the 200 7 - 2008 school year, referenced

in his November 17, 2009 , letter.

16. The grade book page submitted with the January 11,

2010, letter, shows a list of student names for class periods

three and four. S.B.'s name is included on the list for third

period. In the blank provided for listing the subject, the

subjects Pre - algebra, I ntegrated M ath 1 and 2 are written in

cursive. The term "ECON" is printed in a different colored pen

and is written over the word "Subject" printed on the g rade book.

17. Reviewing the grade book page, standing alone, does not

give any indication which students on the list are taking which

courses. However, Respondent represented to officials at Madison

High School that the grades listed for S.B. were for Economics.

18. Madison County School District officials pulled the

computer records for all of the students listed on this page of

the grade book. None of the students listed, includi ng S.B., had

grades posted for E conomics for the fall term of 2008 - 200 9.

Student Q.F.

19. During the first semester of the 2008 - 2009 school year,

Q.F. was in Respondent's class, enrolled in Algebra 1A - B during

the fourth period.

20. At the beginning of the 2009 - 2010 school year, the

guidance staff at Madison County High School placed Q.F. into

classes that Pinnacle showed were appropriate for her. One of

those classes was biology. Q.F. objected, stating that she had

already completed Biology while at Excel.

21. Q.F. went to see Respondent and requested that he

p rovide a letter to the high school to show that she had taken

Biology the previous year while at Excel. Respondent prepared

and sent a letter dated January 13, 2010, which stated

This 2nd semester class shows (4th period) as

an example that [J.B.] and [U. G.] were taking

consumer math, [C.J.] was taking Geometry and

[Q.F.] was taking Biology.

Ms. [F.] had an 85 average in Bilogy [sic].

22. Attached to the letter was a copy of what appears to be

the same page from Respondent's grade for the first semest er of

the 2008 - 2009 year that was provided with the January 11, 2010 ,

letter regarding S.B.

23. The grade book page shows a list of students for fourth

period that includes Q.F. Next to the circled "4th," the

following class subjects are listed: ALG 1 - A& B/ CONSUMER

MATH/BIOLOGY/GEOMETRY. However, in the copy of the same page

attached to Respondent's January 11, 2010, letter, the reference

to Biology is not included.

24. As with the copy provided with the January 11, 2010,

letter, it is not possibl e to determine by reference to the grade

book page alone, which students were taking which courses.

25. However, Respondent represented to officials at Madison

High School that the grades listed for Q.F. were for Biology.

26. Madison County School Dist rict officials pulled the

computer records for all of the students listed on this page of

the grade book. None of the students listed, including Q.F., had

grades posted for Biology for the fall term of 2008 - 2009. As

with S.B., Respondent never completed a grade verification sheet

indicating that Q.F. had completed Biology.

The Altered Grade Book

27. Dr. Michael Akes is the Director of Human Resources for

the School District. In looking at the copies of the page from

Respondent's grade book, he reali zed that there was a discrepancy

with respect to the term Biology being included on one copy of

the page and not on the other. He discovered that, in the

original grade book, line number 19 had been cut from a blank

page in the book. Names of the classes supposedly taught during

fourth period were written on the strip and it was pasted in over

the original line 19 containing the course listings for fourth

period.

28. Respondent admitted to school officials that he had cut

a strip from the back of the bo ok, rewritten the list of courses

and then photocopied the page so that it would appear that

Biology had always been included in the list of courses being

taught. Respondent claimed that the alteration was simply a

"correction" of his grade book because h e remembered Q.F. had

taken B iology.

29. Inasmuch as no student was taking B iology from

Respondent during fourth period that semester, Respondent's

alteration of his records is not a "correction."

30. Contrary to Respondent's representations to Madis on

County High School officials, S.B. did not complete Economics and

G.F. did not complete Biology while at Excel. Respondent denies

doing anything wrong and insists that both students were working

on their classes. However, there is simply no documentat ion to

support the representation that the students completed the

classes for which they were seeking credit.

31. As a result of Respondent's actions, on February 2,

2010, the Superintendent of Schools, Lou Miller, recommended that

Respondent's employmen t with the School District be terminated.

32. Respondent requested a hearing and a section 120.57(1)

hearing was held before Administrative Law Judge Suzanne Hood in

DOAH Case No. 10 - 0 998. In a Recommended Order filed July 16,

2010, Judge Hood recommen ded that Respondent's employment be

terminated based on findings that Respondent committed the acts

described above.

33. On August 9, 2010, the Madison County School Board

entered a Final Order adopting Judge Hood's Recommended Order and

terminated Res pondent's employment with the District.

CONCLUSIONS OF LAW

34 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes (2010) .

35. This is a disciplinary action by Petitioner in which

Petitioner seeks to disci pl ine Respondent's teaching certificate.

Petitioner bears the burden of proof to demonstrate the

allegations in the Administrative Complaint by clear and

convincing evidenc e. Dep't of Banking and Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

36. As stated by the Florida Supreme Court:

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 in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a fi rm 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. 2d 797, 800 (Fla. 4th DCA 1983).

37. The Administrative Complai nt charges Respondent with

violations of s ection 1012.795(1)(d), (g) and (j), Florida

Statutes. Section 1012.795 authorizes the Education Practices

Commission to suspend, revoke, or otherwise penalize a teaching

certificate, provided it can be shown that the holder of the

certificate has committed any of the violations enumerated.

38. The specific provisions in section 1012.795(1) charged

in Counts 1 - 3 of the Administrative Complaint allege that

Respondent:

(d) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(g) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professio nal Conduct for the Education

Profession prescribed by State Board of

Education rules.

39. Count O ne charges a violation of section

1012.795(1)(c). The Education Practices Commission has not

defined "gross immorality" or "moral turpitude" for the purp oses

of discipline to be imposed pursuant to section 1012.795, Florida

Statutes. The Commission has, however defined "immorality" and

"moral turpitude" for use by school districts in taking action

against instructional personnel in Florida Administrative Code

Rule 6B - 4.009. This rule, which may provide guidance in this

context, provides in pertinent part:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorio us to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of basenes s, 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 mo ral turpitude.

40. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed throu gh

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

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

(1933).

41. Count One has been proven by clear and convincing

evidence. Respondent falsified documents in order to provide

d emonstrate that S.B. and Q.F. completed courses that they in

fact did not complete. Respondent justifies his actions by

stating that a teacher of record is the "supreme power and

absolute authority in the classroom." However, teachers do not

have the typ e of absolute authority Respondent describes.

Teachers have the duty and responsibility to teach within the

confines of the Educational Code of Florida, the Principles of

Professional Conduct for the Education Profession prescribed by

Board of Education r ules and by the policies and guidelines of

the school district by which they are employed. Respondent did

not have the authority to fabricate records where none existed,

and to do so demonstrates a violation of Count One by clear and

convincing evidence.

42. Count Two alleges that Respondent engaged in conduct

that seriously reduced his effectiveness as an employee of the

school board, in violation of section 1012.795(1)(g). Reduced

effectiveness may be inferred from the nature and seriousness of

the co nduct. Walker v. Highlands County School Board , 752 So. 2d

127 (Fla. 2d DCA 2000); Purvis v. Marion County School Board , 766

So. 2d 492 (Fla. 5th DCA 2000).

43. There is clear and convincing evidence to support the

allegation charged. Respondent alte r ed records to substantiate

the completion of courses that were not completed, not for one

student but for two. By doing so, Respondent calls into question

the accuracy and veracity of any records related to class

achievement that he may submit. Even pri or to the letters

written to the high school regarding S.B. and Q.F., Respondent

was reprimanded for his failure to enter grades in the computer

system as required. This failure compromises the adequacy of the

records for all of his students. As stated i n Gallagher v.

Desjarlais , DOAH Case No. 00 - 2767 (DOAH Oct. 31, 2000; EPC

Jan. 19, 2001), "Trust is an important component of the

relationship that must exist among teachers and between

administrators and a teacher. Respondent's dishonesty seriously

under mines this trust." See also Crist v. Hammersley , No. 03 -

1601PL (DOAH Oct. 1, 2003; EPC Jan. 22, 2004).

4 4 . Count T hree charges Respondent with violatin g Section

1012.795(1)(j). By virtue of the violations proven with respect

to Counts F our and F ive, Co unt T hree has been proven by clear and

convincing evidence.

4 5 . Counts Four and F ive charge Respondent with violating

several provisions within Florida Administrative Code Rule 6B -

1.006, which provide in pertinent part:

(1) The following disciplinary rul e 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 educatorÓs

certificate, or the other pe nalties as

provided by law.

* * *

(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.

4 6 . Both violations have been proven by clear and

convincing evidence. By submitting an altered page from his

grade book to substantiate completion of courses that had not

been completed by S.B. and Q.F., and representing that the

coursework had been completed, Respondent failed to maintain

honesty in all professional dealings and submitted fraudulent

information on a document in connection with profession al

activities, in violation of r ule 6B - 1.006(5)(a) and (h).

47. Th e Education Practices Commission has adopted

disciplinary guidelines to provide notice of the range of

penalties to be expected for violations of section 1012.795 and

r ule 6B - 1.006. Florida Administrative Code Rule 6B - 11.007

identifies several aggravating and mitigating factors that may

also be considered in determining the appropriate penalty.

Dr. Brown is a knowledgeable teacher in his field. He appears to

be very dedicated to his students, especially those who have

struggles outside the classroom and are attempting to overcome

those obstacles. On the other hand, he took no responsibility

for his actions, and his actions were repetitive, knowing and

intentional. The undersigned has also considered the penalty

imposed in Crist v. Hammersley , supra , and considers it to be an

appropriate comparator.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Education Practices Commission enter a

final order finding that Respondent violated section

1012 .795(1)(d), (g) and (j), Florida Statutes, and Florida

Administrative Code Rule 11B - 1.006(5)(a) and (h). It is further

recommended that the Commission 1) reprimand Respondent; 2)

suspend his certificate for a period of 2 years; 3) impose a

3 - year probati onary period upon his return to teaching in any

public or private school in Florida, upon such terms and

conditions as the Commission deems appropriate; and 4) require

that Respondent take and successfully complete a three - hour,

college - level course on pro fessional ethics no later than the

first year of probation.

DONE AND ENTERED this 31s t day of May , 20 11 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31s t day of May , 20 11 .

COPIES FURNISHED:

J. Da vid Holder, Esquire

J. David Holder P. A.

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

James B. Brown

Post Office Box 584

Madison, Florida 32340

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 12 4 4

325 West Gaines Street

Tallahassee, Florida 32399

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399

Kathleen M. Richards, Executive D irector

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wi thin

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.