15-006022PL Pam Stewart, As Commissioner Of Education vs. Kimberly Banks Status: Closed Recommended Order on Wednesday, June 8, 2016.

Summary: Petitioner proved that Respondent cheated on ESOL endorsement course by copying another teacher's work. Recommended 18 months' suspension, fine, probation, and ethics class.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 6022PL

KIMBERLY BANKS,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing i n this case was held on January 28 , 29,

and March 14, 2016 , by video teleconferencing, with sites in

Orlando and Tallahassee , before Administrative Law Judge J.

Lawrence Johnston .

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Offic e Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Brian F. Moes, Esquire

Law Office of Brian F. Moes

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The is sue s in this case are whether and how the Education

Practices Commission (EPC) should discipline the Respondent on

charges that she submitted another teacherÓs work to earn an

endorsement to her teacher certificate for English for Speakers

of Other Languag es (ESOL).

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint alleging

that the Respondent either submitted another teacherÓs work to

earn an ESOL endorsement to her teacher certificate, or allowed

the other teacher to submit the Respon dentÓs work for the other

teacher to earn an ESOL endorsement. Count 1 charged a

violation of section 1012.795(1)(g), Florida Statutes (2013) , 1/

for personal conduct that seriously reduced her effectiveness as

an employee of the district school board. Co unt 2 charged a

violation of section 1012.795(1)(j) for violating Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules , which are specified in Counts 3

and 4 . Count 3 charged a violation of Florida A dministrative

Code Rule 6A - 10.081(4)(b) 2/ for intentionally distorting or

misrepresenting facts concerning an educational matter in direct

or indirect public expression. Count 4 charged a violation of

rule 6A - 10.081(5)(a) for failure to maintain honesty i n all

professional dealings. The R espondent denied the charges and

asked for a hearing under section 120.57(1), Florida Statutes

(2015).

At the hearing, pertinent decisional law, statutes, rules,

a school calendar, and EPC records of discipline imposed in

similar cases were officially recognized. The Petitioner called

the Respondent and five others to testify, namely: Andrea

Bayes, a CaseNEX online course facilitator; Leigh Ann Bradshaw,

principal of Oakridge High School; Scott Hanson, assistant

principa l of Conway Middle School; Indez Cordero, Orange County

Public Schools (OCPS) director of Multilingual Services and E S O L

endorsement coordinator; and Charnetta Starr, a teacher at

Oakridge . The PetitionerÓs Exhibits 1 through 32, 35, 48, 50

through 55, 60 , and 61 were received in evidence. The

Respondent called: Iritza Fabian - Gonzalez, OCPS ESOL compliance

officer and CaseNEX facilitator; Justin Golden, an expert on

cell phone text messaging; and Kimberly Jackson, an assistant

principal and the Responden tÓs assessment administrator at

Conway Middle School. The RespondentÓs Exhibits 1, 42, 48, 177

through 200, and 215 were received in evidence.

The first three volumes of the Transcript of the fi nal

hearing were filed on March 14, 2016. The f ourth volume was

filed on April 19, 2016. The partiesÓ proposed recom mended

orders were filed on May 19, 2016, and have been considered in

the preparation of this Recommended Order.

On May 25, 2016, the Petitioner filed an EPC F inal O rder

entered in the case of Commis sioner of Education v. Shawn

Luxton , EPC case 15 - 0503 - RT. On May 26, the Respondent moved to

strike it as late and as irrelevant absent findings of fact and

a transcript to provide context and information on aggravating

and mitigating circumstances. The findings of fact can be

determined by reference to the Administrative Complaint in the

docket in DOAH case 15 - 5644PL, but the motion to strike is

granted on the other grounds.

FINDINGS OF FACT

1. The Respondent, Kimberly Bank, holds Florida educator

certi ficate 993098, which expires on June 30, 2018. She is

certified in English and r eading. During the 2012 - 2013 school

year, she was employed by the OCPS as a reading teacher at

Oakridge High School.

2. In January 2013, the Respondent and a fellow Oakrid ge

reading teacher named Charnetta Starr enrolled in an online

course through CaseNEX to earn credit towards an ESOL

endorsement to their teaching credentials. ESOL endorsements

were required for their jobs.

3. Ms. Starr completed all required course wor k, including

participation in online discussions, journal entries, and

workbook submissions, and earned credit for the course.

4. The Respondent began the CaseNEX class , but stopped

participating after a few weeks and was told by the course

facilitator that she was being withdrawn from the class.

5. T he course ended on April 24, 2013. On May 2, 2013,

the Respondent emailed Ms. Starr to ask her to provide the

Respondent with Ms. StarrÓs course work , which Ms. Starr emailed

to her .

6. The Respondent e nrolled to take the CaseNEX class again

during the summer of 2013. She copied Ms. StarrÓs journal

entries and workbook submissions from the January course and

submitted them verbatim as her own work for course credit during

the summer course . The submiss ions struck the course

facilitator as being very familiar, and her investigation

revealed that they were exact copies of Ms. StarrÓs submissions.

The facilitator reported this to her supervisor. The Respondent

was again withdrawn from the class, this tim e for violating

course prohibitions against plagiarism. The Respondent and

Ms. Starr were reported to OCPS, which reprimanded them and

suspended them for three days.

7. The Petitioner initiated separate , but virtually

identical administrative cases to d iscipline the educator

certificates of both the Respondent and Ms. Starr.

8. The Petitioner agreed to settle Ms. StarrÓs case for a

reprimand and $750 fine , and the EPC accepted the settlement,

because Ms. Starr was not perceived to have used the

Respon dentÓs work product, but only to have allowed her work

produ ct to be used by the Respondent .

9. Ms. Starr testified that she agreed to the settle ment

but actually does not believe her actions were wrong or

violations because she did not know the Responden t was going to

plagiarize her work and submit it for credit.

10. Because the Respondent was perceived to have used

Ms. StarrÓs work product and submitted it as her own for CaseNEX

course credit, t he RespondentÓs administrative case proceeded,

with the Petitioner seeking to fine her, suspend her educator

certificate , and place her on probation.

11. The Respondent contends that she and Ms. Starr

collaborated on all of Ms. StarrÓs journal entry and workbook

submissions with the intention that each would s ubmit the

identical work as their own. Initially, the Respondent

contended that this was permissible ÐcollaborationÑ under the

CaseNEX honor code and course requirements. Later in the

hearing, the Respondent seemed to concede that it was against

the hono r code and the courseÓs requirement that each teacher

taking the course had to submit his or her own original work.

At that point in the proceeding, she seemed to be taking the

position that her conduct mirrored Ms. StarrÓs and that he r

discipline should be the same ( i.e., that she should not be

suspended). I n her proposed recommended order, the Respondent

again took the position that her conduct was permissible

collaboration under the CaseNEX honor code and the courseÓs

requirements and that no disciplin e should be imposed.

12. The evidence was clear and convincing that the work

submitted by the Respondent for credit in the summer 2013

CaseNEX course was not the product of collaboration between her

and Ms. Starr. The Respondent testified that she and M s. Starr

collaborated by jointly doing work for the course from the very

beginning of the January 2013 course with the intention of each

submitting their joint work product for credit. Yet, it is

obvious that the RespondentÓs work submissions prior to her

withdrawal from the January 2013 course were not the same as

Ms. StarrÓs.

13. The Respondent testified that she collaborate d with

Ms. Starr throughout the January 2013 CaseNEX course . She

testified that they pro duced joint work for them both to submit

for credit in the course . She testified that after she was

withdrawn from the January course, she continued to collaborate

and produce joint work product with Ms. Starr, and that it was

understood that the Respondent would submit the work as her own

when she re took the course. The Respondent testified that she

misplaced and lost her thumb - drive with a digital copy of the

joint work product and asked Ms. Starr to send her a copy as an

attachment to an email, which Ms. Starr did on May 2, 2013 .

14. Ms. S tarr testified that the Respondent emailed her to

as k for a copy of Ms. StarrÓs work product from the January

CaseNEX course and that Ms. Starr complied on May 2, 2013.

Ms. Starr testified that this was her own personal work product,

not joint work produ ct . She denied knowing that the Respondent

intended to plag iarize and submit it as her own . She testified

persuasively that there were other legitimate uses the

Respondent could have made of the work besides plagiarizing it.

15. Where there is conflic t between t he RespondentÓs

testimony and Ms. StarrÓs testimony, the RespondentÓs is

rejected as being false , and Ms. StarrÓs is credited as being

the truth . The evidence was clear and convincing that Ms. Starr

did her own work throughout the January 2013 course. None of

the work submitted by Ms. Starr for credit in the January 2013

course was produced jointly with the Respondent. If the

Respondent were telling the truth, and she and Ms. Starr

collaborated on their work submissions, her early submissions

for the January CaseNEX course would have been identical to

Ms. StarrÓs. They were not. On the other hand, some of h er

submissions during the course she took during the summer of 2013

were identical to Ms. StarrÓs submissions. For this and other

reason s, Ms. StarrÓs testimony was more credible than the

RespondentÓs when their testimony was in conflict .

16. The Respondent attempted to attack Ms. StarrÓs

credibility by use of a screen sh ot of a n incomplete and out - of -

context cell phone text message exc hange between them on

June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the

Respondent: Ð OK. Did you sign up for the online modules for the

$1000? LetÓs start working on them so we can get paid on 7/31.Ñ

The Respondent answered: ÐGirl I hav e started. The kids do 2

h rs in the computer lab and I do the modules. They are easy but

loooo ooong!Ñ Ms. Starr replied: Ð OK. Send me any info you

have for it please.Ñ The Respondent texted : ÐYou just watch a

video and answer 2 multiple choice quest ions. Skip through the

video and go to the questions. You can try as much as you wa nt.

There Ñ . There was no evidence as to what preceded or followed

the exchange.

17. When Ms. Starr was confronted with the text exchange

on cross - examination, she unders tood that it was being presented

to impeach her testimony that the Respondent contacted her about

providing the Respondent with their supposedly joint work

product from the January CaseNEX course. In her haste to

vehemently de fend herself , Ms. Starr faile d to realize that the

text message exchange actually had nothing to do with her

providing the Respondent with her work product from the January

course , but was about a different course they were taking to

earn bonus pay, and she testified incorrectly that it was the

Respondent who initiated the text message exchange that was in

evidence . Th e cross - examination failed to impeach the essence

of Ms. StarrÓs testimony .

18 . The evidence was that the Respondent is a good

teacher. She performed satisfactorily b oth at Oakridge before

the CaseNEX cheating incident and at Conway Middle School after

it. Nonetheless, it is clear that her effectiveness as an

employee of the school district was seriously impaired by her

plagiarism and cheating on the June 2013 CaseNEX course. For

one thing, she was reprimanded and suspended for three days.

For another, she did not get the ESOL endorsement that was

required for the job she held at Oakridge.

19 . Since the Respondent was guilty of plagiarism, and

Ms. Starr was less cu lpable, it is reasonable for the

RespondentÓs discipline to be harsher than Ms. StarrÓs. A

period of suspension is reasonable. Based on the EPC records of

discipline imposed in similar cases that were officially

recognized in this case, i t appears that i t has been the

practice of the EPC to impose a one - year suspension , in addition

to a fine, probation, and a requirement to take a college - level

course in ethics, for a teacher who admits to plagiarism and

cheating in a CaseNEX ESOL endorsement course. In the

RespondentÓs case, a longer period of suspension is warranted due

to the RespondentÓs dispute of the charges and her false

testimony.

CONCLUSIONS OF LAW

20 . The Education Practices Commission certifies and

disciplines teachers in Florida. Disciplin ary proceedings are

considered to be penal in nature.

21 . Count 1 of the Administrative Complaint charged a

violation of section 1012.795(1)(g), Florida Statutes, for

personal conduct that seriously reduced her effectiveness as an

employee of the district school board. Count 2 charged a

violation of section 1012.795(1)(j) for violating Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules , which are specified in Counts 3

and 4 . Count 3 charged a viol ation of Florida Administrative

Code Rule 6A - 10.081(4)(b) for intentionally distorting or

misrepresenting facts concerning an educational matter in direct

or indirect public expression. Count 4 charged a violation of

rule 6A - 10.081(5)(a) for failure to ma intain honesty in all

professional dealings.

22 . In a penal proceeding like this one, the Petitioner

must prove the charges against the Respondent by clear and

convincing evidence. DepÓt of Banking & Fin. v. Osborne Stern &

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

2d 292 (Fla. 1987). As the Supreme Court of Florida stated ,

quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983) :

[C]lear 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 explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of th e 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).

23 . The Petitioner proved by clear and convincing evidence

that the Respondent p lagiarized Ms. StarrÓs work and cheated by

submitting it as her own for credit in the June 2013 CaseNEX

course. This violated rules 6A - 10.081(4)(b) and 6A -

10.081(5)(a), which resulted in violations of section

1012.795(1)(j). It also constituted personal conduct that

seriously reduced the RespondentÓs effectiveness as an employee

of the school district, in violation of section 1012.795(1)(g).

24 . Florida Administrative Code Rule 6B - 11.007(1) and (2)

sets out the penalty guidelines for statutory and rule

violations. Each penalty specified in the guidelines also

includes "probation," "Recovery Network Program," "letter of

reprimand," "restrict scope of practice," "fine," and

"administrative fees and/or costs" with applicable terms thereof

as additional pe nalty provisions. The most appropriate range of

discipline for the RespondentÓs conduct is set out in rule 6B -

11.007(2)(i)17 : suspension to revocation for Ðplagiarism or

other fraud or dishonesty in professional activities.Ñ

25 . Revocation is too harsh in this case. The Petitioner

contends that a two - year suspension and $750 fine, plus

probation, is the appropriate discipline. That is more than the

one - year suspension and $750 fine that seems to be the usual

discipline imposed by the EPC in similar cas es when the teacher

does not dispute the violation. More than a one - year suspension

is warranted in this case because the Respondent disputed the

charges and testified falsely in support of her position that

she did not plagiarize and cheat , but rather pe rmissibly

collaborated with Ms. Starr.

26 . Rule 6B - 11.007(3) authorizes the EPC to deviate from

the routine range of penalties upon consideration of aggravating

and mitigating factors listed (a) through (t). Consideration of

those factors does not warran t a deviation from the routine range

of discipline for the proven violations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the EPC enter a final order

finding the Respondent guilty as charged, susp ending her

e ducator certificate for 18 months , placing her on probation for

two years with conditions to b e determined by the EPC, requiring

her to take a college - level course in ethics under terms and

conditions d etermined by the EPC, and imposing a fine in the

amount of $750.

DONE AND ENTERED this 8th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 8th day of June, 2016 .

ENDNOTE S

1/ Unless otherwise noted, all statutory re ferences are to the

2013 codification of the Florida Statutes, which were the

statutes in effect at the time of the alleged violations.

2/ All rule citations are to the version of the Florida

Administrative Code in effect at the time of the alleged

vio lations.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Joseph Egan, Jr., Esquire

Egan , Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Brian F. Moes, Esquire

Law Office of Brian F. Moes

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Educ ation

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.