10-002784PL Dr. Eric J. Smith, As Commissioner Of Education vs. Maria Elena Malvar Status: Closed Recommended Order on Monday, September 13, 2010.

Summary: Teacher who used another candidate's work in applying for a lucrative and prestigious national certification should have her Educator's Certificate suspended for one year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2784PL

)

MARIA ELENA MALVAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on July 12, 2010, by video teleconferencing between

sites in Tallahassee and Miami, Florida, before Administrative

Law Judge (ALJ) Claude B. Arrington of the Division of

A dministrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

For Respondent: Henry Lopez - Aguiar, Esquire

9415 Sunset Drive, Suite 119

Miami, Florida 33173

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

subject Administrative Complaint, and, if so, the penalties that

should be imposed.

PRELIMINARY STATEMENT

On February 19, 2010, Petitioner issued an Administrative

Complaint against Respondent, Maria Elena Malvar (Respondent or

Ms. Malvar). Ms. Malvar applied for certification from the

National Board for Professional Teaching Standards (NBPTS) in

March 2007. Ms. Malvar was a classroom teacher at the time of

her application. As part of the application process, a

candidate for certification is required to submit written

entries that will be described below. These written portfolio

entries are required to be t he candidate's original work.

Succinctly stated, the Administrative Complaint alleged that

parts of two portfolio entries submitted by Respondent were not

her work, but were taken from entries submitted by another

candidate.

Based on that conduct, Petiti oner charged Ms. Malvar with

committing the following violations:

Count I: . . . Section 1012.795(1)(d),

Florida Statutes, 1 in that Respondent has

been guilty of gross immorality or an act

involving moral turpitude as defined by the

rule of the State Board of Education;

Count II: . . . Section 1012.795(1)(j),

Florida Statutes, in that Respondent has

violated the Principles of Professional

Conduct for the Education Profession

prescribed by State Board of Education

rules;

Count III: . . . Rule 6B - 1.006(5 )(a),

Florida Administrative Code, in that

Respondent has failed to maintain honesty in

all professional dealings; and

Count IV: . . . Rule 6B - 1.006(5)(h), Florida

Administrative Code, in that Respondent has

submitted fraudulent information on a

document in connection with professional

activities.

Ms. Malvar timely requested a formal administrative hearing

to challenge the allegations of the Administrative Complaint,

the matter was referred to DOAH, and this proceeding followed.

Prior to the formal hearing, the parties filed a Joint Pre -

Hearing Stipulation that stipulated to certain facts. Those

stipulated facts have been accepted by the undersigned and have

been incorporated into this Recommended Order by the Findings of

Fact set forth in paragraph s 1 - 6. 2

At the formal hearing, Petitioner presented the testimony

of Ms. Ileana Saenz (a teacher and the other candidate referred

to in the Administrative Complaint). Petitioner offered 14

sequentially - numbered exhibits, each of which was admitted into

ev idence. Petitioner's Exhibit 1 is a composite consisting of

Exhibits 1A, 1B, 1C, and 1D. Respondent testified on her own

behalf and presented the character witness testimony of Laura

Grabiel, Maria Macia, and Lourdes De La Portilla. Respondent's

witness es were all current or former employees of the Miami - Dade

County School Board. Respondent offered three consecutively

numbered exhibits, each of which was admitted into evidence.

Respondent's Exhibits 1 and 2 are composite exhibits.

Respondent's Exhibit 3 is a copy of a video presentation.

On the motion of the Petitioner and without objection from

Ms. Malvar, official recognition was taken of the website of the

NBPTS (www.nbpts.org).

The Transcript, consisting of one volume, was filed

August 2, 2010 . On Respondent's motion, to which Petitioner had

no objectio n, the deadline for submitting proposed r ecommended

o rders (PROs) was extended to August 23, 2010. The parties

timely filed their respective PROs, which have been duly

considered by the undersi gned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate 776701,

covering the areas of Elementary Education and English for

Speakers of Other Languages, which is valid through June 30,

2010. 3

2. At all times pertinent hereto , Respondent was employed

as a fifth grade t eacher at Fairlawn Elementary School (Fairlawn

Elementary) in the Dade County School District.

3. On or about October 27, 2006, Respondent submitted an

application for national certification through the NBPTS.

Respon dent's application fee to the NB PTS was subsidized by

state funds designated for that purpose.

4. If Respondent had received national certification, she

would be eligible for annual salary bonuses.

5. During 2006/ 2007, Respondent, in an attempt to qualify

for national certification, submitted two portfolio entries,

titled Entry 2 and Entry 3, to NBPTS that were not entirely her

own work.

6. On or about July 8, 2008, NBPTS disqualified

Respondent's Entry 2 and Entr y 3 because the two portfolio

entries had an unacceptable high degree of overlap to two

portfolio entries submitted by a previous national board

certification candidate.

7. NBPTS is a nation wide, advanced teaching credential

that complements, but does not replace, a teaching certificate

issued by a state, in this case, the State of Florida. The

rigorous evaluation process includes the submission of four

portfolio entries.

8. The issues in this case pertain to Ms. Malvar's

portfolio Entry 2 and her port folio Entry 3. Both portfolio

entries were submitted to NBPTS by Ms. Malvar in March 2007.

9. Materials provided to candidates for certification by

NBPTS include specific instructions for Entry 2 and Entry 3.

Both portfolio entries required detailed w ritten comments from

the candidate as to his or her teaching methodologies and

strategies.

10. The following is found in Part 1 of the General

Portfolio Instructions under the heading of "Ethics and

Collaboration":

Collaboration with colleagues is a val ued

part of the process: engage them in

professional discussions about the NBPTS

Standards; have them help you video record,

watch, and analyze the video recordings; and

have them read and comment on your analyses

and on the student work you have chosen..

However, the work you submit as part of your

response to each portfolio entry must be

yours and yours alone. Your written

commentaries, the student work you submit,

and your video recordings must all feature

teaching that you did and work that you

supervised. (Emphasis is in the original.)

11. Ms. Malvar knew that the work a candidate submits as

part of the c andidate's response to each portfolio entry,

including the written comments, must be the candidate's work and

only the candidate's work.

12. Ms. Ileana Saenz is a classroom teacher at Fairlawn

Elementary. Ms. Saenz has been a teacher for 20.5 years.

Ms. Saenz has been a NBPTS certified teacher in reading literacy

since December of 2006.

13. Ms. Malvar has been a teacher for 11 years.

Ms. Malvar taught at Fairlawn Elementary until October 2009,

when she was appointed to supervise the School District 's

Bilingual Parent Outreach Program, which was the position she

held as of the date of the formal hearing.

14. Ms. Saenz and Ms. Malvar have known each other for 15

years.

15. Ms. Elizabeth Gonzalez is also a classroom teacher at

Fairlawn Elementary.

16. Ms. Malvar, Ms. Saenz, and Ms. Gonzalez were

candidates for NBPTS certif ication in the 2005 - 2006 school year.

In March 2006 , Ms. Saenz and Ms. Gonzalez submitted their

entries to NBPTS. Ms. Malvar did not complete her portfolio

entries and dropped o ut of the application process. In December

2006, NBPTS notified Ms. Saenz that she had attained

certification.

17. While the three teachers were in the application

process, Ms. Saenz gave to Ms. Malvar her four portfolio

entries to proofread and to prov ide feedback.

18. In the fall of 2006, Ms. Malvar reapplied for NBPTS

certification. Ms. Malvar submitted her four portfolio entries,

including Entry 2 and Entry 3, to NBPTS in March 2007.

19. While packing her portfolio entries for submission to

NB PTS, Ms. Malvar inadvertently gave Ms. Saenz a copy of each of

her four portfolio entries. As will be discussed below,

Ms. Saenz did not realize that she had a copy of these portfolio

entries until February 2008.

20. In November 2007, Ms. Malvar receive d her score report

from NBPTS. Ms. Malvar received a passing score on her Entry 3,

but she did not receive a passing score for her other three

portfolio entries, including Entry 2. The score Ms. Malvar

received for her Entry 3 was identical to the score Ms. Saenz

had received for her Entry 3 the year before.

21. Ms. Saenz and Ms. Gonzalez encouraged Ms. Malvar to

redo and submit the portfolio entries for which she had not

received a passing grade. They offered to act as mentors.

22. In January 2008, Ms. Saenz asked Ms. Malvar to give

her Ms. Malvar's Entry 1 and Entry 2 that had been submitted to

NBPTS in March 2007, so that Ms. Saenz could review them and

provide feedback to Ms. Malvar. Ms. Malvar complied with that

request, bu t, as will be discussed below, Ms. Saenz did not have

time to read the portfolio entries until the following month.

23. In February 2008, Ms. Saenz read a few pages of the

draft of Ms. Malvar's new Entry 2 and noticed that the portfolio

entry was very s imilar to the Entry 2 Ms. Saenz had submitted in

March 2006. The strategies were the same and the wording was

similar.

24. Shortly thereafter, Ms. Saenz retrieved the copy of

the Entry 2 that Ms. Malvar had submitted to NBPTS in March

2007. (This was one of the two portfolio entries that

Ms. Malvar had given Ms. Saenz in January 2008 to review and

provide feedback.)

25. There was a great deal of overlap between the Entry 2

Ms. Saenz submitted in March 2006 and the Entry 2 Ms. Malvar

submitted in March 2007. Ms. Saenz highlighted the overlap with

a marker.

26. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 2.

27. Ms. Saenz confronted Ms. Malvar and asked to see

Ms. Malvar's other portfolio entries. Ms. Malvar told Ms. Saenz

that she would provide her with a copy of the other portfolio

entries.

28. The next morning, Ms. Saenz wanted more assurances

from Ms. Malvar that her work would no longer be used. Shortly

thereafter, Ms. Malvar informed Ms. Saenz that she had decided

to drop out of the certification process. That afternoon,

Ms. Malvar filled out the form to drop out of the certification

process , faxed it in to NBPTS, and gave a copy to Ms. Saenz.

29. Later Ms. Saenz discovered the copy of Ms. Malvar's

Entry 3 that h ad been submitted to NBPTS by Ms. Malvar in March

2007. This is the copy that Ms. Malvar had inadvertently given

Ms. Saenz when Ms. Malvar and Ms. Gonzalez were packing

Ms. Malvar's submissions to NBPTS in March 2007.

30. There was a great deal of overl ap between the Entry 3

Ms. Saenz submitted in March 2006 and the Entry 3 Ms. Malvar

submitted in March 2007. Ms. Saenz highlighted the overlap with

a marker.

31. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 3.

32. After learning that Entry 2 and Entry 3 had been

plagiarized, Ms. Saenz was justifiably upset that Ms. Malvar had

used her work. Ms. Saenz had received additional compensation

as a result of her certification from NBPTS certification.

Ms. Malvar's use of Ms. Saenz's work could have co st Ms. Saenz

her certification from NBPTS and the loss of her additional

compensation.

33. After consulting her assistant principal and her

direct supervisor, Ms. Saenz held a conference call with the

person who is head of the national boards for the Mi ami - Dade

County School District. Following that conference call,

Ms. Saenz reported to NBPTS her observations as to the

similarities between her own Entry 2 and Entry 3 submitted in

March 2006 , and the Entry 2 and Entry 3 that Ms. Malvar

submitted in Mar ch 2007.

34. On April 28, 2008, a representative of the NBPTS

advised Ms. Malvar that NBPTS had identified "a high degree of

overlap" between her portfolio entries and those of "another

current or former candidate." The letter invited Ms. Malvar to

expla in no later than May 12, 2008, how the overlap could have

occurred.

35. Because Ms. Malvar did not timely respond to the

April 28 , 2008, letter, a second letter was sent to her by the

same representative of NBPTS extending the response time to

May 19, 2 008.

36. By letter dated May 19, 2008, Ms. Malvar responded to

NBPTS with the following after she had referenced the two

letters she had received:

In response to the aforementioned letters, I

would like to state that all the implemented

lessons were my or iginal ideas, I did all

the research as well as planning that it

took to create them and I was the only

person involved in their implementation. At

the same time, I do acknowledge that the way

some of the lessons were expressed on paper

were not my origin al words. This was done

without malice and without the consent of

the other person. I do regret this

unfortunate incident since I did put many

hours of hard work in the creation of the

lessons.

37. By letter dated July 8, 2008, the president of NBPTS

notified Ms. Molvar of his decision. The letter provided, in

part, as follows:

Before making my decision I closely reviewed

the various materials regarding this case,

while taking into consideration the

obligation that NBPTS has to maintain an

assessment that is fair to all teachers

seeking certification. This is a serious

issue, and I did not make my decision

lightly. After reviewing all of the

documentation regarding this situation, I

find unacceptable the high degree of overlap

between [Ms. Sanez's 20 06 entries and

Ms. Malvar's 2007 entries].

While collegial teamwork is valued by the

National Board, the guidelines set forth in

the portfolio directions are in place to

ensure all candidates seeking certification

submit original work and analyses that are a

result of personal reflection on their

individual teaching practices.

In your situation, I find that the overlap

is significant enough to cause concern.

Therefore, it is my decision to disqualify

your current scores for the above - mentioned

portfol io entries and to remove the scores

from your score report. It is also my

decision to grant you the opportunity to

retake these portfolio entries and any other

entries/exercises you choose to retake.

38. Ms. Malvar had not reapplied for certification as of

the date of the formal hearing.

39. Ms. Malvar has never received any letters of

reprimand, letters of direction, or verbal warnings at any time

during her professional career as an educator.

40. Ms. Malvar has received numerous certificates of

achievement.

41. Ms. Malvar has always received high marks on her

evaluations as an educator and has never received an

unsatisfactory evaluation.

42. Ms. Malvar presented the testimony of three current or

former educato rs as character witnesses. These character

witnesses testified, credibly, that Ms. Malvar enjoys a good

reputation in the teaching community.

43. Ms. Malvar knew, or should have known, that her use of

Ms. Sanez's work constituted cheating.

44. Ms. Mal var testified, credibly, that she was ashamed

of what she had done.

CONCLUSIONS OF LAW

45. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

46. In this proceeding the Commissioner of Education seeks

to discipline RespondentÓs educatorÓs certification.

Consequently, the Commissioner has the burden of proving by

clear and convincing evidence the allegations against

Respondent. See Ferris v. T urlington , 510 So. 2d 292 (Fla.

1987); Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989); and

Inquiry Concerning a Judge , 645 So. 2d 398 (Fla. 1994). The

evidence in this proceeding is not only clear and convincing,

the evidence is undisputed.

47. Count I of the Administrative Complaint alleged that

Respondent violated Section 1012.795(1)(d), Florida Statutes.

Count II alleged that Respondent violated Section 012.795(1)(j),

Florida Statutes. Count III alleged Respondent violated the

provisions of Florida Administrative Code Rule 6B - 1.006(5)(a).

Count IV alleged Respondent violated the provisions of Florida

Administrative Code Rule 6B - 1.006(5)(h).

48. Section 1012.795(1), Florida Statutes, provide s, in

relevant part:

(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 scho ol 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 p erson 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.

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

in relevant part, as follows:

(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.

50. The subject statute does not define the term "gross

immorality" or the phrase "an act involving moral turpitude".

Florida Administrative Code Ru le 6B - 4.009, which contains

definitions for use by school districts in disciplining

instructional staff, provides assistance.

51. No rule defines the term "gross immorality ." However,

Florida Administrative Code Rule 6B - 4.009(2) contains the

following de finition of the term immorality:

(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 pu blic disgrace or

disrespect and impair the individualÓs

service in the community.

52. "Gross immorality" has been defined to mean an act of

misconduct that is serious, rather than minor in nature; it is a

flagrant disregard of proper moral standards. See Education

Practices Commission v. Knox , 3 FALR 1373 - A (Fla. Dept. of

Education 1981) and Frank T. Brogan v. Eston Mansfield , Case

No. 96 - 0286 (Fla. DOAH Aug. 1, 1996; Fla. Education Practices

Commission Oct. 18, 1996).

53. The moral standard to be upheld must be viewed in

context with the profession at issue. As leaders and role

models in the community, teachers are held to a high moral

standard. Adams v. Professional Practices Council , 46 So. 2d

1170 (Fla. 1st DCA 1981). In John L. Winn, as Comm issioner of

Education v. Adela Popescu , Case No. 06 - 1620PL (DOAH August

2006) a teacher was found to have plagiarized material on a

state certification examination. The ALJ in that case made the

following conclusion of law at paragraph 26 of her Recommend ed

Order, which the undersigned adopts:

26. Respondent's duties as a teacher

include evaluating her students by testing

their knowledge. Her apparent belief that

cheating or plagiarizing is acceptable

conduct cannot be permitted to be taught to

her stude nts. The public has a right to

rely on the placement of only honest persons

in charge of teaching the community's youth.

Petitioner has proven Respondent guilty of

gross immorality and an act involving moral

turpitude since she, as a teacher, submitted

s omeone else's work as her own as part of

her examination for certification.

54. The Education Practices Commissions adopte d the

Recommended Order in DOAH Case No. 06 - 1620PL by its Final Order

entered January 17, 2007.

55. Based on the foregoing, it i s concluded that

Petitioner proved by clear and convincing evidence the violation

alleged in Count I of the Administrative Complaint by submitting

someone else's work as her own in an effort to achieve a

prestigious and lucrative national board certificati on from the

NBPTS.

56. Petitioner proved by clear and convincing evidence

that Respondent failed to maintain honesty in all professional

dealings as alleged in Count III of the Administrative Complaint

and in violation of Florida Administrative Code Rule 6B -

1.006(5)(a).

57. Petitioner proved by clear and convincing evidence

that Respondent submitted fraudulent information on a document

in connection with professional activities as alleged in Count

IV of the Administrative Complaint and in violation of Flo rida

Administrative Code Rule 6B - 1.006(5)(h).

58. Petitioner proved by clear and convincing evidence

that Respondent violated the Principles of Professional Conduct

for the Education Profession as alleged in Count II of the

Administrative Complaint and in violation the provisions of

Section 1012.795(1), Florida Statutes, by committing the

violations found in Counts III and IV of the Administrative

Complaint.

59. In making the penalty recommendation that follows, the

undersigned has considered Respondent's favorable reputation and

work history. The conduct at issue in this proceeding appears

to be an anomaly in an otherwise distinguished career. However,

plagiarizing or cheating to obtain a prestigious and lucrative

national board certification by a schoo l teacher cannot be

tolerated , and the penalty for such conduct should be

substantial. The recommendation that follows is consistent with

the penalty imposed in the analogous DOAH Case No. 06 - 1620PL.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Respondent guilty of Counts I, II, III, and IV of the

Administrative Complaint. It is further recommended that the

final order suspend Respondent's educator's certificate for a

period of one year.

DONE AND ENTERED this 13 th day of September, 2010, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 13 th day of September, 2010.

ENDNOTES

1/ All statutory reference s are to Florida Statutes (2010).

There has been no material change to these statutes at any time

relevant to this proceeding.

2/ Few, if any factual disputes remained after the parties filed

their Pre - Hearing Stipulation. In her PRO, Ms. Malvar admi ts

the violations alleged in Counts II, III, and IV, but argues

that her conduct does not rise to the level of "gross

immorality" and does not constitute an act of "gross

immorality". Ms. Malvar argues Petitioner should not suspend

her teaching certificat e for more than six months. In its PRO,

Petitioner argues that Ms. Malvar is guilty of the violations

alleged and that the penalty should include the suspension of

her teaching certificate for a period of one year.

3/ This finding is taken verbatim from the Pre - Hearing

Stipulation. The record is silent as to whether Ms. Malvar

extended her certificate prior to June 30, 2010. In her PRO,

Ms. Malvar represents that her teaching certificate had been

renewed. Neither party h as suggested that the proceeding is

moot, which suggests that the certificate has been extended and

that she holds a valid teaching certificate.

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

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

Henry Lopez - Aguiar, Esquire

9415 Sunset Drive, Suite 119

Miami, Flo rida 33173

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 Practice Services

Department of Education

Turlington Building, Suite 224E

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.