15-001191PL Pam Stewart, As Commissioner Of Education vs. Irwin Kellen Status: Closed Recommended Order on Thursday, August 27, 2015.

Summary: Petitioner established by clear and convincing evidence that Respondent submitted a fraudulent recommendation letter to the School District in support of his application for employment. Recommend that teaching certificate be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Petitioner,

vs. Case No. 15 - 1191PL

IRWIN KELLEN,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter came before Administrative

Law Judge J. Bruce Culpepper of the Division of Administrative

Hearings on July 14, 2015, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

For Respondent: Irwin Kellen

Post Office Box 2682

Bonita Springs, Florida 34133 - 2682

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent violated

section 1012.795(1)(j), Florida Statutes (2015), 1/ and Florida

Administrativ e Code Rule s 6A - 10.081(5)(a), (h), and (i) ; and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 14, 2014, Petitioner, Pam Stewart, as

C ommissioner of E ducation ( " Petitioner " ), filed a four - count

Administrative Complaint charging Respondent , Irwin Kellen , with

violations of section 1012.795(1)(j), and Florida Administrative

Code Rule s 6A - 10.081(5)(a), (h), and (i). In the Administrative

Complaint, Petitioner charged Mr. Kellen with presenting a

fraudulent letter of recommendation with his application for

employment as a teacher within the Lee County School District

(the " School District " ) .

Mr. Kellen disputed the allegations in the Administrative

Complaint and timely requested an administrative hearing pursuant

to section 120.57(1) , Florida Statutes . On March 6, 2015, the

matter was referred to the Division of Administrative Hearings

( " DOAH " ) for assignment of an Administrative Law Judge . The case

was noticed for final hearing to be held on May 12, 2015. After

two continuances, t he case was heard on July 14, 2015.

At the final hearing, Petitioner presented the testimony of

Mr. Kellen, Alice Barfield, Brad Buckowich, and Georgianna

McDaniel . Petitioner ' s Exhibits numbered 1 through 12 were

admitted into evidence. Mr. Kellen testi fied on his own behalf.

Mr. Kellen did not call any other witnesses or offer an exhibit

that was admitted into evidence .

The hearing Transcript was filed with DOAH on July 31, 2015.

Petitioner timely filed its Proposed Recommended Order , which was

duly c onsidered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner is responsible for investigating and

prosecuting allegations of misconduct against individuals holding

educator certificates.

2. Mr. Kellen is currently licensed as a teacher in Florida

and has been issued Florida educator certificate 1007357.

Mr. Kellen ' s certificate covers the areas of Educational

Leadership, English , Pre - K indergarten /Primary Education, Reading,

and Exceptional Student Education. Mr. Kellen ' s certif icate

expires on June 30, 2020.

3. Prior to obtaining his Florida educator certificate ,

Mr. Kellen was employed as a teacher in the State of Indiana from

1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a

reading teacher in Collier County f rom 2006 to 2007. From 2007

to 2008, he was a middle school teacher at Six Mile Charter

Academy with Charter School USA. From 2009 to 2011, Mr. Kellen

was employed as a substitute teacher in Lee County, Florida.

From January through March 2012, Mr. Kell en was a

paraprofessional in Monroe County, Florida.

4. In August 2012, Mr. Kellen was employed as a teacher at

Knox Academy in Lee County, Florida. Three months later, in

November 2012, Knox Academy terminated his employment. Brad

Buckowich was the p rincipal at Knox Academy. Mr. Buckowich both

hired and fired Mr. Kellen.

5. In July 2013, Mr. Kellen applied for a teaching position

at James Stevens International Academy ( " James Stevens Academy " ),

a school within the School District. Alice Barfield, p rincipal

at James Stevens Academy, interviewed Mr. Kellen for a reading

teacher position. Shortly, thereafter, she offered him the

position.

6. As part of the hiring process, the School District

required Mr. Kellen to submit references from previous empl oyers.

On July 31, 2013, Mr. Kellen met with Georgianna McDaniel , the

Executive Director of Personnel Services for the School District,

to discuss the School District hiring procedure s . Ms. McDaniel

explained to Mr. Kellen that School District policy req uired the

hiring school to contact the candidate ' s previous employer before

the School District would hire him.

7. Following the July 31 meeting, Mr. Kellen brought to

Ms. Barfield at James Stevens Academy a recommendation letter

from Knox Academy dat ed July 8, 2013, and signed by Brad

Buckowich. The recommendation letter was a photocopy. However,

Mr. Kellen represented throughout the hiring process (and

maintained during the final hearing) that Mr. Buckowich prepared

and signed the original recommen dation letter on behalf of Knox

Academy. 2 / The photocopied recommendation letter which Mr. Kellen

provided to Ms. Barfield included a Knox Academy letterhead. The

letter also bore the signature of Brad Buckowich at the bottom.

Upon review of the recomme ndation letter, however, Ms. Barfield

noticed that the signature seemed odd. The top of the letter " B "

in the name " Brad " and " Buckowich " was cut off. The signature

was also slightly slanted.

8. Thereafter, Ms. Barfield contacted Mr. Buckowich to

pers onally inquire about Mr. Kellen ' s employment with Knox

Academy, obtain his verbal recommendation as Mr. Kellen ' s last

employer, and discuss the recommendation letter. When

Ms. Barfield ' s secretary reached Mr. Buckowich by phone, however,

he declined to re commend Mr. Kellen for the position.

Furthermore, he denied that he had ever written a recommendation

letter for Mr. Kellen. Ms. Barfield then faxed the

recommendation letter to Mr. Buckowich. After reviewing the

letter, Mr. Buckowich repeated to Ms. Ba rfield that he did not

draft or sign the letter.

9. Ms. Barfield faxed a copy of the recommendation letter

to Ms. McDaniel at the School District office on August 2, 2013.

10. On August 5, 2013, Mr. Kellen visited James Stevens

Academy. He was told th ere was a problem with his reference

letter. Later that morning, Mr. Kellen met again with

Ms. McDaniel at the School District office. Ms. McDaniel

informed Mr. Kellen that Mr. Buckowich said he did not prepare or

sign the recommendation letter. Mr. Kel len disclosed that he had

actually prepared the letter for Mr. Buckowich ' s signature.

However, Mr. Kellen insisted that Mr. Buckowich signed the letter

he submitted.

11. In the afternoon of August 5, 2013, Mr. Kellen wrote an

e - mail addressed to Mr. B uckowich. In the e - mail, Mr. Kellen

asked Mr. Buckowich to " please fill out this form as you promised

in March, that you would give me a good recommendation based on

my working as Asst. Principal/Instructor. " Mr. Kellen added,

" [t] o avoid any mis - communi cation, email the form signed to me at

this email and to Mrs [.] McDaniel in HR. "

12. On August 9, 2013, Mr. Buckowich met with Ms. McDaniel

to discuss and review the recommendation letter. Mr. Buckowich

observed that the signature on the photocopied l etter was, in

fact, a copy of his signature. However, Mr. Buckowich reiterated

that he did not draft or sign the recommendation letter.

13. Further, Mr. Buckowich produced for Ms. McDaniel

another document he signed in October 2012 , which he believed wa s

the source of the signature that was " cut and pasted " onto the

recommendation letter Mr. Kellen presented to Ms. Barfield.

Mr. Buckowich had provided this document to Knox Academy

employees , including Mr. Kellen. Mr. Buckowich surmised that

Mr. Kellen, likely by using a computer W ord or PDF program, cut

his signature from the October 2012 document and pasted it onto

the recommendation letter.

14. Based on her meeting with Mr. Buckowich, Ms. McDaniel

concluded that the recommendation letter Mr. Kelle n submitted to

support his application for the teaching position was fraudulent.

Ms. McDaniel determined that the School District would not hire

Mr. Kellen.

15. At the final hearing, Mr. Buckowich expanded on why the

recommendation letter should not be considered genuine.

Mr. Buckowich stated that the recommendation letter had several

formatting and style errors that he would not have used or made.

These mistakes included: he would have adjusted the date to the

right margin, not centered it under the Knox Academy seal; he

would have placed the subject line flush with the left margin,

not indented it; and he would not have capitalized every word of

the addressee line. As far as the letter ' s content,

Mr. Buckowich stated that he would not have use d the words or

phrases written in the letter. He would not have identified

Mr. Kellen as the " Assistant Principal/Instructional Leader. "

Neither would he have used the term " RTI strategies. "

16. Finally, regarding the signature, other than not

actually signing the recommendation letter, Mr. Buckowich

commented that the signature looked as if it had been cut and

pasted, as if from another PDF or scanned document, onto this

letter. Aside from this fact, Mr. Buckowich testified that his

actual signature block rea ds " Brad J. Buckowich,

Principal/Director, Knox Academy , " not " Mr. Brad Buckowich,

Founder/Principal, Knox Academy , " as written on the letter. To

conclude, Mr. Buckowich commented that if he would have actually

drafted a recommendation letter for Mr. Kell en, he would have

sent an original letter with a Knox Academy color logo and an

original signature, not a photocopy.

17. At the final hearing, Mr. Kellen adamantly asserted

that the recommendation letter with Mr. Buckowich ' s signature was

genuine. Mr. Kellen stated that he obtained the letter from his

former attorney. His attorney had received it from Mr. Buckowich

and then forwarded it to Mr. Kellen.

18. The Florida Education Practices Commission is the

state agency charged with the certification an d regulation of

Florida educators. See Chapter 1012 , Fla. Stat . Prior to this

current matter, the Education Practice s Commission entered two,

separate f inal o rders against Mr. Kellen sanctioning his educator

certificate for misconduct , one dated December 4, 2006, and one

dated October 23, 2008.

19. Based on the evidence and testimony presented during

the final hearing, Petitioner demonstrated, by clear and

convincing evidence, that Mr. Kellen submitted a fraudulent

recommendation letter to the School Di strict as part of his

application for employment in a teaching position.

CONCLUSIONS OF LAW

20. T he Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes.

21. This is a disciplinary action by Petitioner in which

Petitioner seeks to permanently revoke Mr. Kellen ' s teaching

certificate. Reflecting the penal nature of revoking a person ' s

ability to teach in Florida, Petitioner bears the b urden of proof

to demonstrate the allegations in the Administrative Complaint by

clear and convincing evidence. 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).

22. Clear and c onvincing 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). As the Florida Supreme Court

stated:

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 weig ht that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

v. Walker , 429 So. 2d 797, 8 00 (Fla. 4th DCA 1983). " Although

this standard of proof may be met where the evidence is in

conflict, it seems to preclude evidence that is ambiguous. "

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991) .

23. Section 1012.795 autho rizes 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.

24. The material allegations in the Admi nistrative

Complaint state that " [o] n or about August 2, 2013, [Mr. Kellen]

submitted a fraudulent letter of recommendation, with his

application of employment, to the principal of James Stevens

International Academy, in Lee County, Florida, and to the Lee

County School District. " In Count I, the Administrative

Complaint alleges Mr. Kellen violated section 1012.795(1)(j) ,

which is applicable when a teacher:

Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

25. Counts 2, 3, and 4 of t he Administrative Complaint

charge Mr. Kellen with violating three provisions within r ule

6A - 10.081(5). Rule 6A - 10.081(5) provides, in pertinent part:

(5) Obligation to the profession of

education re quires 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.

* * *

(i) Shall not make any fraudulent state ment

or fail to disclose a material fact in one ' s

own or another ' s application for a

professional position.

26. As stated above, based on the evidence and testimony

presented at the final hearing, Petitioner demonstrated by clear

and convincing evidence t hat Mr. Kellen submitted a fraudulent

document with his application for a teaching position with Lee

County. This conclusion is readily reached based on the

testimony of Mr. Buckowich , who emphatically declared that he did

not draft or sign the recommenda tion letter. Further, as

Mr. Buckowich detailed while examining the recommendation letter,

numerous aspects of the letter ' s formatting, style, and word

choice, as well as the highly dubious signature block, easily

cause one to deduce that the letter was n ot what Mr. Kellen

represented it to be. Accordingly, the fact that Mr. Kellen

presented the letter to both James Stevens Academy , as well as

the School District , demonstrates that Mr. Kellen was acting in a

deceptive and dishonest manner. Therefore, Pet itioner has

proven, by clear and convincing evidence, that Mr. Kellen

violated section 1012.795(1)(j) and r ule s 6A - 10.081(5)(a), (h),

and (i).

27. T he Education Practices Commission has adopted

disciplinary guidelines for the imposition of penalties

author ized for violations of section 1012.795 and/or rule

6A - 10.081. See Fla . Admin . Code R . 6B - 11.007(2). The

undersigned has considered the range of penalties for each of the

violations Petitioner has proven and the factors listed in the

guidelines that may be considered in mitigation or aggravation of

a penalty. Further, section 1012.795(6 ) (b) instructs that the

Education Practices Commission shall adopt rules requiring the

issuance of a final order permanently revoking an individual ' s

Florida educator cert ificate, if the individual has been the

subject of sanctions by the Education Practices Commission on two

previous occasions.

28. In light of the facts alleged and proven in this case,

as well as Mr. Kellen ' s prior disciplinary record with the

Education Pr actices Commission, revocation of Mr. Kellen ' s

educator certificate is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order finding Respond ent , Irwin Kellen, in

violation of section 1012.795(1)(j) and r ule s 6A - 10.081(5)(a),

(h), and (i). It is further RECOMMENDED that Petitioner revoke

Respondent ' s certificate for a period of time deemed appropriate

by the Education Practices Commission.

DON E AND ENTERED this 27th day of August , 2015 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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 27th day of August , 2015 .

ENDNOTE S

1/ All references to Florida Statutes will be to the 2015

version .

2/ The original recommendation letter was not produced at the

final hearing. No evidence was presented as to the whereabouts of

the original letter.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street , Suite 316

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lamb eth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 00 12

(eServed)

Irwin Kellen

Post Office Box 2682

Bonita Springs, Florida 34133 - 2682

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 ca se.