13-004129TTS Miami-Dade County School Board vs. Emmanuel Fleurantin Status: Closed Recommended Order on Tuesday, July 29, 2014.

Summary: Petitioner proved, by a preponderance of the evidence, that just cause exists, on the basis of misconduct in office and violation of school board policies, to suspend Respondent without pay and terminate his employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4129TTS

EMMANUEL FLEURANTIN,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted i n th i s case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2013), before Cathy M.

Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on March 18, 2014, by video

teleconference at sites in Miami and Tall ahassee, Florida, and on

April 8, 2014, by webcast at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County Public Schools

Suite 430

1450 Northeast Second Avenue

Mia mi, Florida 33132

For Respondent: Brand e n Vicari, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 , North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitione r to suspend

Respondent without pay and terminate his employment as a teacher.

PRELIMINARY STATEMENT

On or about October 16, 2013, Petitioner, Miami - Dade County

School Board, took action to suspend Respondent, Emmanuel

Fleurantin, without pay and to term inate his employment as a

teacher. Respondent timely requested an administrative hearing

to contest Petitioner ' s action, and this matter was referred to

DOAH on October 18, 2013. The final hearing was scheduled for

January 16, 2014.

On December 19, 201 3 , the parties moved to continue the

final hearing. The motion was granted and the hearing was

rescheduled for March 18, 2014.

On January 8, 2014, Petitioner fil ed a Notice of Specific

Charges alleging just cause to suspend Respondent without pay and

te rminate his employment on the bases of misconduct in office

under Florida Administrative Code Rule 6A - 5.056(3) 1 / and violating

Petitioner ' s policies 3210, 3210.01, and 2605.

The final hearing was held on March 18, 2014, but was not

completed that day, so was reconvened on April 8, 2014. The

final hearing was concluded that day.

Petitioner presented the testimony of Guy Halligan, D.J.,

Joyce Castro, Ellen Roelofs, and N.A. Petitioner ' s Exhibits 1

through 5, 7, and 19 were admitted into evidence without

objection, and Petitioner ' s Exhibits 14 and 25 were admitted into

evidence over objection. Respondent testified on his own behalf

and presented the testimony of Haresh Seogopaul, T.O., Rhailyn

Campbell, Dean Anthony Richards, Janice Fleurantin, an d Ellen

Roelofs. Respondent ' s Exhibits 1 through 3 were admitted over

objection.

The two - volume Transcript was filed on June 2, 2014, and the

parties were given ten days, until June 12, 2014, in which to

file their proposed recommended orders. Pur suant to Petitioner ' s

unopposed Motion for Extension of Time to File Proposed

Recommended Orders , filed on June 9, 2014, the parties were given

until June 23, 2014, to file their proposed recommended orders.

The parties timely filed Proposed Recommended O rders, which were

duly considered in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a duly - constituted school board charged

with operating, controlling, and supervising all free public

schools within the School Distri ct of Miami - Dade County, Florida,

pursuant to Florida Constitution Article IX, section 4(b), and

section 1012.23, Florida Statutes.

2. In the timeframe relevant to this proceeding, the 2011 -

2012 school year, Respondent was employed as the lead technolo gy

teacher, pursuant to an annual services contract, at Miami

Norland High School ( " Norland " ), a public school in Miami - Dade

County, Florida.

3. At all times relevant to this proceeding, Respondent ' s

employment with Petitioner was governed by Florida law,

Petitioner ' s policies, and the collective bargaining agreement

between Miami - Dade County Public Schools and the United Teachers

of Dade .

II. Events Giving Rise to T his Proceeding

A. Certification Examinations

4. Norland offers courses in Adobe P hotoshop ( " Photoshop " )

and Adobe Dreamweaver ( " Dreamweaver " ). Each course offers an

industry certification examination. The exams are provided by

Certiport, an independent provider of educational, assessment,

examination, and certification programs.

5. To prepare for a certification exam, the student takes

practice exams. Performance on the practice exams indicat es

readiness to take the certification exam, so it is important that

the student perform well on the practice exams prior to taking

the certif ication exam.

6. Upon reaching a certain achievement level on the

practice exams, indicating readiness to take the certification

exam, the student goes to another classroom to take the

certification exam.

7. The exams are taken on a computer. Noth ing but the

computer is allowed on the desk during the exam. Students are

informed of the rule that they are not allowed to have or use

papers, notebooks, or any other materials when taking the exam.

8. If the student passes the exam, he or she receives a

certificate.

9. In the 2011 - 2012 school year, the certification exams

for Photoshop and Dreamweaver were administered more than once

per school day at Norland .

10. As part of his responsibility as lead technology

teacher at Norland, Responden t proctored the certification exams

for the Photoshop and Dreamweaver courses during the 2011 - 2012

school year.

11. To be authorized to proctor the certification exams,

Respondent entered into a Proctor Agreement with Certiport

( " Agreement " ). The Agre ement required, among other things, that

Respondent ensure the security of the exam and supervise

certification candidates taking the exam to ensure that no notes

containing the content of the test questions or answers were used

during the exam. The Agree ment provided that in the event of any

evidence of improper conduct by the candidate or violation of the

exam process, the proctor must terminate the exam, confiscate the

exam materials, and immediately notify Certiport. Adherence to

the Agreement was req uired for Respondent to be authorized to

serve as a proctor for the certification exams.

B. Alleged Cheating on Certification Exams

12. D.J. was enrolled as a student in Mr. Halligan ' s

Photoshop course at Norland during the 2011 - 2012 school year.

1 3. Despite never having obtained a passing score on a

practice exam, D.J. was taken out of Halligan ' s class to take the

Photoshop certification exam. 2 /

14. D.J. took the Photoshop certification exam twice, and

sat for it during her regularly scheduled Photoshop class. 3 / D.J.

took the certification exam for the second time on April 3, 2012,

and passed it on her second sitting.

15. Respondent proctored the Photoshop certification exam

on April 3, 2012, during the period when D.J. took the exam and

pa ssed.

16. D.J. testified, credibly, that Respondent allowed her

to use a package containing the answers during the exam, and that

he told the other students taking the exam during that period

that they also could use assistance materials to take the exa m.

17. After finding out that she had passed the exam, D.J.

returned to her Photoshop class and told Halligan that she had

passed. She also told him that Respondent had allowed her and

others to use materials to assist them while taking the exam.

18. D.J. testified, credibly, that she had never been a

student in Respondent ' s class, that he had never discipl ined her,

and that she had never had problems with him . Accordingly, she

had no motivation to fabricate her statement that Respondent had

allowed h er to cheat on the exam.

19. N.A. also attended Norland during the 2011 - 2012 school

year and also took Halligan ' s Photoshop course.

20. N.A. had never achieved the minimum passing score on

the practice exams, but nonetheless was ordered to take the

P hotoshop certification exam. 4 / She sat for the Photoshop

certification exam three times and passed it on her third

sitting, on April 3, 2012.

21. N.A. credibly testified that Respondent had allowed her

to use the practice exam package to take the cert ification exam. 5 /

22. After passing the exam, N.A. returned to Halligan ' s

class and told him that she had passed. Halligan asked her how

she had passed and she told him that Respondent had allowed her

to use her practice exam package. Halligan asked h er to provide

a written statement regarding what had happened. She prepared a

written statement but subsequently retracted it.

23. Halligan and another technology teacher, Mr. Gant,

contacted the Office of the Inspector General for Miami - Dade

County Pu blic Schools ( " OIG " ) and reported that students who were

not capable of passing the certification exams were, in fact,

passing.

24. The OIG conducted an investigation into alleged

violation s regarding the Adobe and Dreamweaver certification exam

proto col at Norland.

25. As part of this investigation , Ellen Roelofs, along

with another OIG investigator, interviewed N.A. and asked her if

she had cheated on the certification exam. N.A. initially denied

having cheated but then confessed to having done so. 6 /

26. The OIG investigation ultimately substantiated

allegations that Respondent had allowed students to cheat on the

Photoshop and Dreamweaver certification exams.

27. Following completion of the OIG investigation, a

conference for the record ( " CFR " ) was conducted between

Respondent; Joyce Castro, a District Director for the Miami - Dade

County Public Schools Office of Professional Standards; and

others regarding charges that Respondent allowed students to

cheat on the Photoshop and Dreamweaver c ertification exams, in

violation of Petitioner ' s policies 3210, Standards of Ethical

Conduct; 3210.01, Code of Ethics; and 2605, Research and

Evaluation.

28. Based on the OIG report findings, the Office of

Professional Standards determined that Respon dent could not be

trusted in the future to proctor the certification exams.

29. Following the CFR, the matter was presented to a

disciplinary review team, which recommended that Respondent be

terminated from his employment.

30. On October 16, 2013, Petitioner took action to suspend

Respondent without pay and terminate his employment.

C. Respondent ' s Defenses

31. Respondent verified that as part of his duties as lead

technology teacher at Norland, he proctored the Photoshop and

Dreamweaver certif ication exams in the 2011 - 2012 school year.

32. Respondent denied having given students the answers to

the exams or otherwise allowing them to cheat on the exams. The

undersigned found Respondent ' s testimony less than forthcoming

and not credible.

33. Respondent also presented the testimony of Rhailyn

Campbell, a student at Norland during the 2011 - 2012 school year.

Campbell testified that he took the Dreamweaver certification

exam on April 3, 2012, midday; that Respondent did not tell him

or any othe r students that they could cheat on the exam; and that

he did not observe any other students cheating or being allowed

to cheat. Campbell denied having been interviewed by the OIG

during its investigation of Respondent. However, Roelofs

testified, credib ly, that she did , in fact, interview Campbell

during the OIG investigation. This testimony was substantiated

by the Report of Interview she prepared memorializing that

interview. Based on this evidence, Campbell ' s testimony is

deemed not credible. 7 /

3 4. Respondent also presented the testimony of Haresh

Seogopaul , T.O., and Dean Anthony Richards, students at Norland

in the 2011 - 2012 school year. Seogopaul and T.O. testified that

they took the Dreamweaver 8 / certification exam on January 25,

2012. Rich ards took the Photoshop certification exam on

January 25, 2012. Each testified that he did not cheat on the

exam, that Respondent did not allow him to cheat on the exam, and

that Respondent did not allow others to cheat on the exam.

35. This testimony does not contradict D.J. ' s and N.A. ' s

credible testimony that they were allowed to cheat on the

Photoshop certification exams conducted on April 3, 2012; it

merely shows that Respondent did not allow students to cheat on

an entirely different day, January 25, 2012.

36. Through the testimony of Roelofs, Respondent offered

the Report of Interview ( " Report " ) for K.E., D.C., and D.W., each

of whom took the Photoshop certification exam on

April 3, 2012, and each of whom were interviewed by Roelofs

during the OIG investigation. Each Report was prepared by

Roelofs and contained a summary of the statement made by the

student being interviewed, at the time he was interviewed. Each

summary reflects that the student stated that Respondent did not

allow students taking the certification exam to cheat on the

exam. 9 /

37. Clearly, Roelofs has no personal knowledge of the facts

and events that are described in the summaries of these students '

statements, and the statements themselves constitute

unsubstantiated he arsay that does not supplement or explain other

competent evidence in the record. As such, these reports and

their contents do not constitute competent substantial evidence

on which findings of fact may be based.

III. Findings of Ultimate Fact

38. In this proceeding, Petitioner seeks to suspend

Respondent without pay and terminate his employment as a teacher

on the basis of just cause ÏÏ specifically, misconduct in office

under Florida Administrative Code Rule 6A - 5.056 and violation of

Petitioner ' s p olic ies 3210, 3210.01, and 2605.

39. As more fully addressed below, Petitioner bears the

burden of proof, by a preponderance of the evidence, to show that

just cause exists, on these bases , to suspend Respondent without

pay and terminate his employment.

40. Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation.

A. Misconduct in Office

41. Misconduct under rule 6A - 5.056(3) requires violation of

the Code of Ethics of the Education Profession , as adopted in

rule 6B - 1.001, and the Principles of Professional Conduct for the

Education Profession in Florida , as adopted in rule 6B - 1.006.

42. Here, the evidence establishes that Respondent allowed

students t o cheat on the Photoshop certification exams

administered on April 3, 2012.

43. In doing so, Respondent failed to exercise the best

professional judgment and integrity and failed to achieve and

sustain the highest degree of ethical conduct, in violation of

rule 6B - 1.001.

44. Respondent violated rule 6B - 1.006 by fail ing to

maintain honesty in all professional dealings. He also violated

this rule by submitt ing fraudulent information on documents in

connection with his professional activities , both i n allowing or

enabling students to cheat , and for his role in generating

fraudulent passing scores for students who cheated on the exams.

45. Rule 6A - 5.056(3) 10/ requires , for a finding of

misconduct, a showing that the violation is sufficiently serious

to impair the individual ' s effectiveness in the school system.

46. Here, the evidence establishes that as a result of his

conduct , Respondent ' s effectiveness in the school system is

impaired. Castro persuasively testified that Respondent could

not be trusted in the future to proctor exams. Moreover,

Respondent violated the Agreement with Certiport, so can no

longer serve as proctor for the Photoshop and Dreamweaver

certification exams . For these reasons, it is determined that

Respondent ' s effectiven ess in the school system is impaired.

47. Accordingly, the preponderance of the evidence

establishes that Respondent ' s conduct at issue in this proceeding

constitutes misconduct in office pursuant to rule 6A - 5.056(3).

B. Violation of Petitioner ' s Polici es

48. Petitioner has charged Respondent with violating Policy

3210, Standards of Ethical Conduct, which requires that

instructional staff maintain honesty in all professional dealings

and not submit fraudulent information on any document in

connection w ith professional activities. Here, the evidence

establishes that Respondent did not maintain honesty in his

professional dealings in connection with his proctoring duty to

maintain the integrity of the Photoshop certification exams.

Further, he submitte d fraudulent information on documents in

connection with his professional activities , in allowing or

enabling students to cheat and for his role in generating

fraudulent passing scores for students who cheated on the

certification exams. Accordingly, i t is determined that

Respondent violated P olicy 3210.

49. Petitioner also has charged Respondent with violating

P olicy 3210.01, Code of Ethics. Here, the evidence establishes

that Respondent did not abide by Petitioner ' s Code of Ethics .

H is actions in allowing cheating on the certification exams show

that he did not make the well - being of the students and the

honest performance of his professional duties his core guiding

principles . Through his actions, he failed to protect and

advance the Miami - Dade County Public School District and its

students. Accordingly, it is determined that Respondent violated

this policy.

50. Additionally, Petitioner has charged Respondent with

violating P olicy 2605, Research and Evaluation. Policy 2605

incorporates the te st administration and secu rity standards set

forth in the document titled " Miami - Dade County Public Schools:

Standards, Guidelines, and Procedures for Test Administration and

Test Security " (November 2007)( hereafter " Test Security

Document " ). T hese standa rds require , among other things, that

all testing activities, including supervision and monitoring, be

conducted in a manner that ensures the security of test content.

The standards also require that all standardized tests be

administered in accordance wi th established administration and

test security procedures as outlined in program guides for each

testing program; that students shall not be assisted in answering

test questions by any means or by any person; and that test

proctors must actively monitor s tudents to discourage cheating

and must record, and immediately notify the principal and test

chairperson of, any test administration irregularity or security

breach. Here, Respondent ' s professional duties included serving

as proctor for the Photoshop and Dreamweaver certification exams

for Norland. Respondent ' s conduct in allowing students to cheat

on the Photoshop certification exams violated the foregoing test

administration and securi ty standards and , thus , violated P olicy

2605.

CONCLUSIONS OF LAW

51 . DOAH has jurisdiction over the parties to, and subject

matter of, th is proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

52. Here, Petitioner alleges that just cause exists to

suspend Respondent from his employment without pay a nd terminate

his employment as a teacher, pursuant to section 1012.33 , Florida

Statutes 1 1 / ; Florida Administrative Code Rule 6A - 5.056, which

references rules 6B - 1.001 and 6B - 1.006; and School Board Po licies

3210, 3210 .01, and 2605. These statutes and rule s are penal and

therefore must be strictly construed, with ambiguities resolved

in favor of the person charged with violating them. McCloskey v.

Dep ' t of Fin. Servs. , 115 So. 3d 1103 (Fla. 5th DCA 2013).

53. Respondent is an instructional employee as d efined in

section 1012.01(2). Petitioner has the authority to suspend and

terminate instructional employees pursuant to sections

1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

54. To do so, Petitioner must prove, by a preponderance of

the evidence, that Respondent committed the alleged violations

and that such violations constitute " just cause " for dismissal.

§ 1012.33(1)(a), (6), Fla. Stat.; McNeill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

55. Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

56. Pursuant to sections 1012.33(1)(a) and (6),

instructional staff may be terminated during the term of their

employment contra ct only for " just cause " as defined in section

1012.33(1)(a), Florida Statutes.

57. Section 1012.33(1)(a) states in pertinent part:

Just cause includes, but is not limited to ,

the following instances, as defined by rule

of the State Board of Education : immorality,

misconduct in office , incompetency, . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty to, regardless

of adjudication of guilt, any crime involving

moral turpitude.

§ 1012.33(1)(a), Fla. Stat. (emphasis added) .

A. Misconduct in Office

58. Rule 6A - 5.056(3) defines " misconduct in office " as:

[A] violation of the Code of Ethics of the

Education Profession as adopted in [r]ule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in [r]ule

6B - 1.006, F.A.C., which is so serious as to

impair the individual ' s effectiveness in the

school system.

59. Rule 6B - 1.001, Code of Ethics, states in pertinent

part:

(2) Th e educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

60. Rule 6B - 1.006, Principles of Professional Conduct of

the Education Profession, states in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any o f 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) Sha ll maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

61. As discussed above, Respondent ' s conduct in allowing

students to cheat on the Photosh op exams he proctored on April 3,

2012, constituted failure to exercise best professional judgment

and integrity, in violation of rule 6B - 1.001, and constituted

failure to achieve and sustain the highest degree of ethical

conduct, in violation of rule 6B - 1 .006.

62. To find Respondent guilty of misconduct under rule 6A -

5.056(3), not only must Respondent be determined to have violated

rules 6B - 1.001 and 6B - 1.006, but the violations must be so

serious as to impair his effectiveness in the school system. Se e

McMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226 (Fla. 1st DCA

1993).

63. As discussed above, the persuasive testimony and other

evidence shows that Respondent ' s violations of rules 6B - 1.001 and

6B - 1.006 are so serious that they impair his effectiven ess in the

school system.

64. For these reasons, it is concluded that Respondent ' s

conduct constituted misconduct in office pursuant to rule 6A -

5.056(3).

65. Accordingly, just cause exists, on the basis of

misconduct in office, to suspend Respondent without pay and

terminate his employment.

B. Petitioner ' s Policies

66. School Board Policy 3210, Standards of Ethical Conduct,

states in pertinent part:

All employees are representatives of the

District and shall conduct themselves,

both in their emp loyment and in the

community, in a manner that will reflect

credit upon themselves and the school system.

A. An instructional staff member shall:

* * *

17. [M]aintain honesty in all professional

dealings;

* * *

26. [N] ot submit fraudulent informa tion on

any document in connection with professional

activities[.]

67. For the reasons addressed above , it is concluded that

Respondent ' s conduct violated this policy.

68. School Board Policy 3210.01, Code of Ethics , states in

pertinent part:

All me mbers of The School Board of Miami - Dade

County, Florida, administrators, teachers and

all other employees of Miami - Dade County

Public Schools, regardless of their position,

because of their dual roles as public

servants and educators are to be bound by the

following Code of Ethics. Adherence to the

Code of Ethics will create an environment of

honesty and integrity and will aid in

achieving the common mission of providing a

safe and high quality education to all Miami -

Dade County Public Schools students.

A s stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education Rule 6B - 1.001):

* * *

B. The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

C. Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

D. Honesty Î Dealing tru thfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

* * *

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making

the well - being of the students and the honest

performance of pro fessional duties core

guiding principles.

* * *

G. To cooperate with others to protect and

advance the District and its students.

69. For the reasons addressed above, it is concluded that

Respondent ' s conduct violated this policy .

70. School Board Policy 2605, Research and Evaluation,

states in pertinent part:

School Responsibilities

* * *

C. Schools must adhere to the test

administration and security standards,

guidelines, and procedures established by

ARDA to ensure the integrity of the test ing

process and the accuracy and validity of all

test scores. The standards and procedures

are in the document Miami - Dade County Public

Schools: Standards, Guidelines, and

Procedures for Test Administration and Test

Security [Test Security Document] . Th ese

standards apply to all personnel involved

with any aspect of the testing process and

are in effect for school, District, and State

testing programs.

71. The Test Security Document state s in pertinent part:

STANDARD: SECURITY OF TEST CONTENT

The c ontent of tests and any other specified

testing materials must remain secure to

ensure the integrity of the testing process

and the accuracy and validity of the test

scores. All testing activities, including

test preparation, test distribution and

return, supervision and monitoring of

testing, and the use of test results must be

conducted in a manner that ensures the

security of test content.

* * *

STANDARD: MAINTAINING STANDARDIZATION AND

TEST SECURITY DURING TEST ADMINISTRATION

* * *

8. Students shall not be assisted in

answering test questions by any means or by

any person, including individuals

administering or proctoring the test.

* * *

10. Test administrators and proctors must

actively monitor students to discourage

talking or cheating, and to ensure that

students are working independently and on the

appropriate section.

a. Test administrators and proctors must

remain attentive throughout the entire

testing period, moving about the room as

needed to ensure coverage in all areas of the

room .

* * *

15. Students must be advised that the

possession or use of notes, scratch paper,

reference materials, or electronic/

technological devices, other than those

specifically allowed within the guidelines

for that test, will result in dismissal from

the test administration and invalidation of

their test results.

72. For the reasons set forth above, it is concluded that

Respondent ' s conduct violated Policy 2605.

73. Violation of Petitioner ' s policies is not one of the

just causes enumerated in se ction 1012.33(1)(a). However, the

list of offenses, by its plain terms, is not intended to be

exclusive. Under the doctrine of ejusdem generis , 1 2 / offenses

other than those enumerated in the statute may constitute just

cause when they are so serious as t o impair the individual ' s

effectiveness in the school system. See Miami - Dade Cnty. Sch.

Bd. v. Regueira , DOAH Case No. 06 - 4752 (Fla. DOAH Apr. 11, 2007;

Miami - Dade Cnty. Sch. Bd. May 30, 2007); Miami - Dade Cnty. Sch.

Bd. v. Depalo , 2004 Fla. Div. Admin. He ar. LEXIS 1684 (Fla. DOAH

Apr. 29, 2004); Miami - Dade Cnty Sch. Bd. v. Wallace , DOAH Case

No. 00 - 4392 (Fla. DOAH Apr. 4, 2001; Miami - Dade Cnty. Sch. Bd.

May 17, 2001).

74. As discussed above, Respondent ' s conduct in allowing

students to cheat on the Pho toshop certification exam is contrary

to the basic and key requirements that Respondent behave honestly

and ethically, and that he exercise best professional judgment

and integrity, in all of his professional dealings. Furthermore,

his conduct in allowing students to cheat on the exam sent the

message to students that it i s acceptable to behave dishonestly

and without integrity. As a result of his conduct, Respondent

also lost the trust and confidence of those in the school system

with which he must work. For these reasons, Respondent ' s conduct

in allowing cheating in violation of Petitioner ' s policies has

seriously impaired his effectiveness in the school system and

therefore constitutes just cause to suspend him without pay and

terminate his employment.

75. In sum, Petitioner has demonstrated just cause , on the

basis of misconduct in office and violation of Petitioner ' s

policies, to suspend Respondent without pay and terminate his

employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner , Miami - Dade County School

Board , enter a final order upholding its suspension of

Respondent, Emmanuel Fleurantin, without pay and terminating his

employment as a teacher.

DONE AND ENTERED this 29 th da y of July , 2014 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 29 th day of July , 2014 .

ENDNOTES

1 / The Notice of Specific Charges cited the version of rule 6A -

5.056(3) that went into effect on July 7, 2012. However, because

Respondent ' s conduct alleged to violate the rule occurred prior

to July 7, 2012, the previous version of the rule, which went

into effect on April 5, 1983, applies to this proceeding.

2 / Halligan testified, credibly, tha t then - Assistant Principal

Lee ordered that D.J. be taken out of class to take the

certification exam even though her practice exam scores indicated

she was not ready to take the certification exam. Mr. Lee was

not called to testify at the final hearing r egarding his

rationale for ordering students to take the certification exams

when their practice test scores indicated they were not ready.

3/ D.J. could not precisely recall, but thought she took

Halligan ' s class and sat for the certification exams mi dday,

perhaps during the Fifth Period.

4 / Again, no explanation was provided regarding why N.A. was

ordered to take the certification exam without ever having

achieved a passing score on the practice exams.

5 / She used the package that was prepared a s a study guide in

Halligan ' s class. Halligan did not tell her that it was

permissible for her to use the package while taking the

certification exam.

6 / The investigator told N.A. that she would be in trouble if it

were determined that she lied about cheating on the certification

exam. At that point, she told the truth about having cheated.

7/ The existence of the Report of Investigation, not its

contents, were relevant to determining Campbell ' s lack of

credibility.

8/ The Certiport/Miami Norla nd Sr. H.S. 2011 - 2012 Photoshop &

Dreamweaver Test Scores Report shows that Seogopaul and T.O. took

the Photoshop certification exam on January 25, 2012.

9 / Respondent ' s Proposed Recommended Order characterizes t hese

statements as testimony. ( Respondent ' s Proposed Recommended

Order, p. 8, ¶ 34 . ) This is an incorrect char acterization of

this evidence. These statements were taken by Roelofs as part of

the OIG investigation and there is no indication that the

statements were made under oath. These studen ts did not testify

at the final hearing.

1 0 / The version of rule 6A - 5.056 applicable to this proceeding

does not define misconduct in office to include violation of

adopted school board rules.

1 1 / The 2011 version of chapter 1012, Florida Statutes, ap plies

to this proceeding.

1 2 / Ejusdem generis means " of the same kind. " Under this

statutory construction canon , where the statute enumerates

specific things and contains a more general phrase, the general

phrase is construed to refer to a thing of th e same type or kind

as the specifically enumerated things. Eicoff v. Denson , 896 So.

2d 795 (Fla. 5th DCA 2005).

COPIES FURNISHED:

Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 3 3761

Sara M. Marken, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Flo rida 33132 - 1308

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 iss ue the Final Order in this case.