99-000753 Dade County School Board vs. Margaret B. Mitchell Status: Closed Recommended Order on Tuesday, December 28, 1999.

Summary: Teacher who compromised test security by distributing Florida High School competency tests guilty of misconduct, immorality and, upon conviction of this crime, moral turpitude. Recommend sustain suspension and bar from employment with School Board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-0753

)

MARGARET B. MITCHELL , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

October 19, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Lisa N. Pearson, Esquire

United Teachers of Dade

2929 Southwest Third Avenue (Coral Way)

Miami, Florida 33129

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Notice of Specific Charges and, if

so, what disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On February 10, 1999, Petitioner, School Board of Miami-Dade

County (School Board), suspended Respondent, Margaret B.

Mitchell, from employment and initiated dismissal proceedings

against her. Respondent filed a timely request for a hearing to

challenge the School Board's action, and the matter was referred

to the Division of Administrative Hearings for the assignment of

an administrative law judge to conduct a hearing pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

By Notice of Specific Charges, filed March 3, 1999, the

School Board charged that Respondent, a teacher employed pursuant

to a continuing contract at Barbara Goleman Senior High School,

engaged in the following misconduct:

5. On or about October 8, 1997, Respondent

copied and/or distributed a portion of the

1997-98 Florida High School Competence Test

( HSCT) in violation of § 228.301, Fla. Stat.,

and State Board of Education Rule 6A-10.042,

F.A.C.

Based on such allegations, the School Board charged that

Respondent was guilty of misconduct in office, immorality, and

(in the event she is convicted of pending criminal charges

related to the incident in question) conviction of a crime

involving moral turpitude.

At hearing, the School Board called Jorge Sotolongo, Natalie

Roca, Linda Galati, Vicki Weintraub, Jo Janke, Mana Oken, Robert

Asencio, Thomasina O'Donnell, and Sharon Jackson as witnesses,

and the School Board's (Petitioner's) Exhibits numbered 1-3 and

5-17 were received in evidence. 1/ Petitioner testified on her

own behalf and called Edward Goldman and Tania Poveda as

witnesses. Respondent's Exhibits numbered 1-7 were received in

evidence.

The Transcript of the hearing was filed December 1, 1999,

and the parties were accorded ten days from that date to file

proposed recommended orders. The parties elected to file such

proposals and they have been duly-considered.

FINDINGS OF FACT

1. Petitioner, School Board of Miami-Dade County (School

Board), is a duly-constituted school board charged with the duty

to operate, control and supervise all free public schools within

the School District of Miami-Dade County, Florida.

2. Respondent, Margaret B. Mitchell, was at all times

material hereto, employed by the School Board as a teacher (under

a continuing contract of employment), and assigned to Barbara

Goleman Senior High School ( BGSHS) where she taught mathematics.

2/

3. Pertinent to this case, each student in Florida must

earn a passing score on each part of the High School Competency

Test ( HSCT), reading (communications) and mathematics, or be

exempted from each part in order to qualify for a regular high

school diploma. Section 229.57(3)(c)5, Florida Statutes.

4. Given the nature of the test, it is maintained and

administered in a secure manner such that the integrity of the

test will be preserved. Pertinent to the preservation of test

security, the Department of Education has adopted Rule 6A-10.042,

Florida Administrative Code, which provides:

(1) Tests implemented in accordance with

the requirements of Section [ ] . . . 229.57

. . . Florida Statutes, shall be maintained

and administered in a secure manner such that

the integrity of the tests will be preserved.

* * *

(b) Tests or individual test questions

shall not be revealed, copied, or otherwise

reproduced by persons who are involved in the

administration, proctoring, or scoring of any

test.

* * *

(f) Persons who are involved in

administering or proctoring the tests or

persons who teach or otherwise prepare

examinees for the tests shall not participate

in, direct, aid, counsel, assist in, or

encourage any activity which could result in

the inaccurate measurement or reporting of

the examinees' achievement. . . .

The legislature has also addressed the issue of test security

through the enactment of Section 228.301, Florida Statutes, which

provides:

(1) It is unlawful for anyone knowingly

and willfully to violate test security rules

adopted by the State Board of Education or

the Commissioner of Education for mandatory

tests administered by or through the State

Board of Education or the Commissioner of

Education to students, educators, or

applicants for certification or administered

by school districts pursuant to s. 229.57,

or, with respect to any such test, knowingly

and willfully to:

(a) Given examinees access to test

questions prior to testing;

(b) Copy, reproduce, or use in any manner

inconsistent with test security rules all or

any portion of a secure test booklet; [or]

* * *

(g) Participate in, direct, aid, counsel,

assist in, or encourage any of the acts

prohibited in this section.

Any person who violates the provisions of Section 228.301,

Florida Statutes, is guilty of a misdemeanor of the first degree,

punishable by a fine of not more than $1,000 or imprisonment for

not more than 90 days, or both. Section 228.301(2), Florida

Statutes.

5. In October 1997, the HSCT was scheduled to be

administered at BGSHS, with the reading (communications) portion

scheduled for Saturday, October 4, 1997, and the mathematics

portion scheduled for October 18, 1997. Respondent was one of a

number of teachers selected to proctor both portions of the

examination. As such, it was her responsibility to distribute

the testing materials, collect the materials after testing, and

maintain test security.

6. On October 4, 1997, Respondent proctored a class for the

communications portion of the HSCT, and distributed and collected

the test materials. Those materials (the HSCT booklet) are

triple sealed: the outer seal secures the whole booklet, while

the enclosed communications portion and mathematics portion of

the examination are separately sealed. On receipt of the

booklet, students should only have broken the outer seal for the

whole booklet and the seal on the communications portion (and not

the mathematics portion) of the examination; however, one of

Respondent's students accidentally broke the seal for the

mathematics portion. Respondent, while responsible for test

security (including inventorying all examinations and reporting

broken seals), failed to report such breach.

7. During the late afternoon of October 7, 1997, Respondent

sent an e-mail message to four fellow mathematics teachers,

Carolyn Guthrie, Jo Janke, Linda Galati, and Vicki Weintraub,

advising them that they would find a "blue present" in their

school mail box. The e-mail was accessed the morning of

October 8, 1997, and the "blue present" Respondent referred to, a

blue computer disc, was located in each mail box.

8. Later that morning, Ms. Guthrie put the disc in her

computer to see what it contained and discovered a file labeled

" HSCT '97" which, when opened, contained a series of math

questions. According to Ms. Guthrie, she immediately closed the

file, returned the disc to Respondent, and told her "I didn't

want it." Later, on reflection, Ms. Guthrie reasoned her

response (given her suspicion that the disc contained the

mathematical portion of the 1997 HSCT) was inadequate.

Consequently, she spoke with the other teachers (Ms. Janke,

Ms. Galati, and Ms. Weintraub) and took possession of their

discs. Ms. Guthrie delivered these discs, as well as her

suspicions regarding the information contained on the discs, to

Jorge Sotolongo, principal of BGSHS.

9. Subsequent investigation confirmed that the information

(math questions) contained on the blue discs had been derived

from the 1997 HSCT, and that the examination had been

compromised. 3/ Consequently, the second portion of the HSCT

(the mathematics section) scheduled for October 18, 1997, was

cancelled. 4/ Ultimately, based on its perception that

Respondent intentionally breached test security, the School Board

suspended Respondent from her employment and commenced these

proceedings to dismiss her.

10. In resolving the pending charge, it cannot be seriously

disputed that the information Respondent provided her fellow

teachers on the blue discs was derived from the mathematics

portion of the 1997 HSCT, and that the mathematics portions of

the test was compromised. What remains to resolve is whether, as

contended by the School Board, the proof demonstrates (more

likely than not) that Respondent knowingly and willfully

reproduced or revealed the test. Also to resolve (or, stated

otherwise, inherent to the resolution of the pending charge) is

whether Respondent's explanation regarding the source for the

information she copied onto the blue discs, as well as her

perception of its content, is worthy of belief. In this regard,

Respondent avers that on the afternoon of October 7, 1997, she

received a "black disc," anonymously, in her teacher's mail box

at BGSHS; that she briefly opened the disc and scanned (without

studying) its contents; concluded the disc contained "practice

questions" for the HSCT; and copied the material on to the blue

discs for her fellow teachers.

11. Giving due regard to the proof, as well as her

education, training, and experience, it must be resolved that

Respondent's explanation regarding the source of the information

she copied onto the blue discs, as well as her perception of its

content, is inherently improbable and otherwise unworthy of

belief. Rather, the proof points unfalteringly to the conclusion

that Respondent knowingly and willfully reproduced and provided

copies of the mathematics portion of the 1997 HSCT to her fellow

teachers. 5/

12. Based on the foregoing incident, Respondent was

arrested and charged in the County Court, Dade County, Florida,

Case No. M98-56462, with a breach of test security

(Section 228.301, Florida Statutes). Respondent entered a plea

of not guilty; however, on June 28, 1999, after hearing, she was

found and adjudicated guilty of the offense. As a consequence,

Respondent was ordered to pay a fine of $1,000; to pay costs of

$311; sentenced to 90 days house arrest; and ordered to serve a

period of 6 months probation.

13. Respondent's conduct (of compromising test security) is

inconsistent with her obligation to exercise the best

professional judgment and integrity; to maintain the respect and

confidence of one's colleagues, of students, and of parents; to

achieve and sustain the highest degree of ethical conduct; and to

maintain honesty in all professional dealings. In sum, through

her conduct, Respondent has evidenced that she is untrustworthy,

unreliable and lacking in good moral character, such that her

effectiveness in the school system has been seriously impaired.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569 and 120.57(1), Florida

Statutes.

15. Pertinent to this case, Section 231.36(4)(c), Florida

Statutes, provides:

Any member of the . . . instruction staff

[such as Respondent] . . . who is under

continuing contract may be suspended or

dismissed at anytime during the school year;

however, the charges against him or her must

be based on immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude, as

those terms are defined by rule of the State

Board of Education. . . .

Here, Petitioner charges that Respondent is guilty of immorality,

misconduct in office, and conviction of a crime involving moral

turpitude.

16. Rule 6B-4.009, Florida Administrative Code, defines

"immorality," "misconduct in office," and "moral turpitude" as

follows:

(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 public disgrace or disrespect

and impair the individual's service in the

community.

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, FAC., which is so serious as to impair

the individual's effectiveness in the school

system.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

17. Pertinent to the charge of "misconduct in office,"

Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of

the Education Profession in Florida, provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) 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.

(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.

Also pertinent to the charge of "misconduct in office," Rule 6B-

1.006, Florida Administrative Code, Principles of Professional

Conduct for the Education Profession in Florida, provides:

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

18. Here, it should not be subject to debate that

Respondent's act of knowingly and willfully reproducing the

mathematics portion of the 1997 HSCT and providing copies of that

test to her fellow teachers constituted an act of immorality and

misconduct in office; that such conduct was sufficiently

notorious to bring Respondent into public disgrace or disrespect

and impair her service in the community; and that such conduct

was so serious as to impair her effectiveness in the school

system. 6 It should also not be subject to debate that, upon

conviction of the crime for breach of test security, Respondent,

as an educator, was also shown to have been convicted of a crime

involving moral turpitude. Consequently, Respondent has been

shown to have violated the provisions of Section 231.36(4)(c),

Florida Statutes, as alleged in the Notice of Specific Charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which sustains

Respondent's suspension without pay, and which dismisses her from

employment with the School Board of Miami-Dade County, Florida.

DONE AND ENTERED this 28th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of December, 1999.

ENDNOTES

1/ Petitioner's Exhibit 4 was withdrawn and returned to

Petitioner.

2/ Respondent is certified to teach high school mathematics and

computer science. She has been employed by the School Board for

approximately twenty years, and was employed at BGSHS from

approximately 1994 until her suspension in February 1999.

3/ The math questions on the blue discs contained minor changes

in the written narrative of the problem, such as the person's

name; however, the same math skills were assessed, the same

calculations were required, and the same answer options were

offered. In sum, it cannot be subject to serious debate that the

source for the information contained on the blue discs was the

1997 HSCT.

4/ The test was later rescheduled after the State, at additional

expense, was able to obtain an alternate mathematics portion for

testing. The cost to the School Board, State of Florida, staff,

and students is detailed in Petitioner's Exhibits numbered 6 and

12.

5/ There is no direct evidence of record as to how Respondent

obtained the mathematics portion of the 1997 HSCT; however, she

clearly had time and opportunity on October 4, 1997, when she

proctored the communication portion of the exam. At the time,

proctors were required to report at 7:00 a.m. and to all logout at

12:00 (noon). Respondent's assigned students completed the test

between 10:45 and 11:00 a.m., and copy machines were available for

teacher use on the day of the examination. While it cannot be

resolved with any degree of certainty, whether Respondent copied a

test by machine or surreptitiously by hand (from the test booklet

on which the seal had been broken or by bowing open a booklet

without breaking the seal), it may be resolved that she did secure

a copy of the test, knowingly and willfully reproduced it, and

that her explanation regarding the source of the information (the

mysterious "black disc") and her lack of knowledge regarding the

information she placed on the blue discs is unworthy of belief.

6/ Here, there was direct proof that Respondent's conduct

adversely affected her effectiveness in the school system.

Moreover, such conclusion could also be reasonably drawn in the

absence of specific evidence of impairment of the teacher's

effectiveness as an employee where, as here, the personal conduct

in which the teacher engaged was of such nature that it must have

impaired the teacher's effectiveness. Summers v. School Board of

Marion County , 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill

v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA

1996).

COPIES FURNISHED:

Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Lisa N. Pearson, Esquire

United Teachers of Dade

2929 Southwest Third Avenue (Coral Way)

Miami, Florida 33129

Roger C. Cuevas, Superintendent

Miami-Dade County Schools

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Tom Gallagher

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Madelyn P. Schere, Esquire

c/o Leslie Alan Schere, P.A.

1865 Brickell Avenue, No. A207

Miami, Florida 33129

Lisa N. Pearson, Esquire

c/o Leslie A. Meek, Esquire

14441 Northwest 13th Court

Miami, Florida 33167

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.