STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-0614TTS

MARIA MARRERO-RIOS,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings for final hearing on May 24 and 25, 2017, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

Helene K. Baxter, Esquire Palm Beach County School Board Office of the General Counsel

3300 Forest Hill Boulevard, Suite C-323 West Palm Beach, Florida 33406

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309 Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent without pay and terminate her employment as a teacher.

PRELIMINARY STATEMENT

By letter dated December 12, 2016, Petitioner, Palm Beach County School Board ("School Board"), notified Respondent, Maria Marrero-Rios ("Respondent"), of the School Board's intent to suspend her for 15 days without pay and terminate her employment. On January 11, 2017, at its scheduled meeting, the School Board took action to suspend Respondent for 15 days without pay and terminate her employment as a teacher.

Respondent timely requested an administrative hearing.

Subsequently, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") to assign an Administrative Law Judge to conduct the final hearing.

The final hearing was initially set for March 20 and 21, 2017. On February 10, 2017, Respondent filed a Joint Motion to Continue Hearing. On February 10, 2017, the undersigned entered an Order granting the motion, and reset the final hearing for May 24 and 25, 2017.

The final hearing commenced as scheduled on May 24 and concluded on May 25, 2017, with both parties present. At the hearing, the School Board presented the testimony of Tiara Clark, Respondent, N.D., A.C., A.V., H.C., Cheryl Collier, Kathleen Black, Dianna Weinbaum, Kelly Patrick, D.A., Y.C., and A.R.E.

The School Board's Exhibits 1 through 6, 8, 9, 11, 13 through 18, and 20 through 43 were received in evidence. Respondent

testified on her own behalf and presented the additional testimony of A.H. Respondent's Exhibit 2 was received in evidence.

The three-volume final hearing Transcript was filed at DOAH on July 25, 2017. On August 4, 2017, Respondent filed an unopposed motion for extension of time for the parties to file their proposed recommended orders. On August 4, 2017, the undersigned entered an Order granting the motion. The parties timely filed proposed recommended orders, which were given consideration in the preparation of this Recommended Order.

On May 16, 2017, the parties filed their Joint Pre-hearing Stipulation, in which they stipulated to certain facts. Those facts have been incorporated into this Recommended Order as indicated below.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged violations.

FINDINGS OF FACT

1. The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida.

2. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at Melaleuca Elementary School in Palm Beach County, Florida.

   
   

   Respondent was initially hired by the School Board as a teacher in 2006.

3. At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the Collective Bargaining Agreement between the School Board and the Palm Beach County Classroom Teachers Association.

4. The Florida Standards Assessment ("FSA") is a standardized, statewide, individual assessment examination administered to students in Florida's public schools.

5. The FSA for third-grade students includes the Mathematics and English Language Arts ("ELA") Reading assessments.

6. Student performance on the FSA is a measure of student accountability. A student's test score on the FSA must accurately reflect the student's actual performance on the test. If a student receives assistance, the student's performance will not be accurately measured.

7. Student performance on the FSA is a factor in the determination of a school's grade, a teacher's evaluation, and potentially, a teacher's compensation and bonus.

8. To maintain the integrity of the FSA and to ensure the proper administration of the FSA, teachers receive mandatory training in the correct administration of the test.

   
   

9. On or about March 16, 2016, Respondent attended the FSA Test Administrator Training at Melaleuca Elementary School, which included instruction about test security.

10. On or about March 16, 2016, Respondent received a copy of a PowerPoint entitled "Spring 2016 Florida Standards Assessments Training Materials – Computer Based Grades 4-5 ELA Reading; Grade 5 Mathematics – Paper-Based Grade 3 ELA Reading and Grades 3 & 4 Mathematics."

11. On or about March 16, 2016, Respondent signed the "Test Administration and Security Agreement" and the "Test Administrator Prohibited Activities Agreement," which prohibit assisting students in answering tests, giving students verbal and non-verbal cues, and changing or interfering with student responses.

12. By signing these agreements, Respondent agreed to follow all test administration and security procedures outlined in the manual and rules, and she agreed not to engage in any prohibited activities or acts that would violate the security of the test or cause student achievement to be inaccurately measured.

13. At the hearing, Respondent acknowledged she understood the contents of these agreements and the prohibited testing activities.

    
    

14. On March 31, 2016, Respondent was a third-grade teacher at Melaleuca Elementary School and administered/proctored the FSA Mathematics assessment to third-grade students.

15. During the test, Respondent gave assistance to students and interfered with students' answers.

16. Specifically, Respondent: (1) made noises and tapped on students' desks and their test answer sheets to signal wrong answers; (2) pointed to wrong answers on the test answer sheets;

    1. whispered to a student that "she was doing a good job"; and

       
       

    2. erased marks and unwanted answers on students' answer sheets.

       
       

17. Many students who were in the classroom when Respondent administered the FSA Mathematics assessment on March 31, 2016, credibly and persuasively testified at the final hearing regarding the assistance Respondent gave to them during the examination, and Respondent's interference with their answers during the examination.

18. N.D. testified that during the test, Respondent made noises to signal a wrong answer. N.D. also testified that Respondent pointed to a question on her answer sheet in an effort to have N.D. change her answer. N.D. also testified that Respondent erased bubbles on her answer sheet.

19. A.C. testified that during the test, Respondent made noises to signal a wrong answer. A.C. also testified that Respondent erased bubbles on her answer sheet.

    
    

20. A.V. testified that during the test, Respondent made noises to signal a wrong answer. A.V. also testified that Respondent whispered to her that "she was doing a good job."

    A.V. also testified that Respondent pointed to answers and erased bubbles on her answer sheet.

21. H.C. testified that during the test, Respondent made noises to signal a wrong answer.

22. D.A. testified that during the test, Respondent tapped on his desk to signal a wrong answer.

23. Y.C. testified that during the test, Respondent made noises to signal a wrong answer.

24. A.R.E. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. also testified that Respondent erased bubbles on his answer sheet.

25. A.H. testified that during the test, Respondent made noises. A.H. also testified that Respondent erased a mark on his answer sheet.

26. Moreover, at the hearing, Respondent conceded that she erased bubbles on students' answer sheets and prompted a student when asked by the student about the definition of a polygram. Respondent's attempt to explain how she did not assist students and interfere with their answers during the FSA examination is unpersuasive and not credited.

    
    

27. Respondent's assistance to students and interference with students' answers during the FSA Mathematics assessment resulted in the Florida Department of Education ("DOE") invalidating each of the students' math tests in Respondent's classroom.

28. The invalidation of the students' math tests resulted in a deficit for the placement of students in the appropriate math instruction for the following school year.

29. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2).

30. By assisting students and interfering with students' answers during the FSA examination, Respondent violated Florida Administrative Code Rules 6A-10.042(1)(c), (d), and (f). Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties. Respondent also violated rules 6A-10.081(2)(a)1., (2)(b)2.,

    and (2)(c)1., by failing to make reasonable effort to protect students from conditions harmful to learning, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, and failing to maintain honesty in all dealings.

    
    

31. By assisting students and interfering with students' answers during the FSA examination, Respondent also violated School Board Policy 1.013 by failing to carry out her assigned duties in accordance with state rules and School Board policy.

32. Respondent's conduct in assisting students and interfering with students' answers during the FSA examination was clearly flagrant and purposeful. Respondent was trained not to assist students and interfere with students' answers during the FSA examination. Respondent was aware of the prohibition against assisting students and interfering with students' answers during the FSA examination. Rather than adhere to these prohibitions, however, Respondent made a conscious decision to ignore them.

    CONCLUSIONS OF LAW

    
    

33. DOAH has jurisdiction of the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

34. Respondent is an instructional employee, as that term is defined in section 1012.01(2), Florida Statutes. The School Board has the authority to suspend and terminate instructional employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a) and (6)(a).

35. Ordinarily, the School Board would be required to prove, by a preponderance of the evidence, that Respondent committed the violations alleged in the petition, and that such

    
    

    violations constitute "just cause" for suspension and dismissal.

    
    

    §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990). However,

    pursuant to Article II, Section M, of the Collective Bargaining Agreement between the School Board and the Palm Beach Classroom Teachers Association, the violations must be proven by clear and convincing evidence. Moreover, because the School Board seeks to skip steps of progressive discipline and proceed directly with the suspension and termination of Respondent's employment, the violations must be shown to be "clearly flagrant and purposeful" in order to justify the penalties of suspension and termination.

36. The "clear and convincing evidence" standard requires that the evidence be found 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 the trier-of-fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So.

    2d 398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

37. 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).

    
    

38. Sections 1012.33(1)(a) and (6)(a) provide in pertinent part that instructional staff may be terminated during the

    term of their employment contract only for "just cause."

    
    

    §§ 1012.33(1)(a) and (6)(a), Fla. Stat. "Just cause" is defined in section 1012.33(1)(a) to include "misconduct in office."

39. Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to

    sections 120.536(1) and 120.54 to implement provisions of law conferring duties upon it.

40. Consistent with this rulemaking authority, the State Board of Education has defined "misconduct in office" in

    rule 6A-5.056(2), which provides:

    
    

    1. "Misconduct in Office" means one or more of the following:

       
       

       1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;

          
          

       2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.;

          
          

       3. A violation of the adopted school board rules;

          
          

       4. Behavior that disrupts the student's learning environment; or

          
          

       5. Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.

    
    

41. Rule 6A-5.056(2)(a) incorporates by reference rule 6A- 10.080, which is titled "Code of Ethics of the Education Profession in Florida." Rule 6A-10.080 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.

       
       

42. While rule 6A-5.056(2)(a) provides that violation of the Code of Ethics rule constitutes "misconduct," it has been frequently noted that the precepts set forth in the above-cited "Code of Ethics" are "so general and so obviously aspirational as to be of little practical use in defining normative behavior." Miami-Dade Cnty. Sch. Bd. v. Lantz, 2014 Fla. Div. Adm. Hear.

    LEXIS 399, at *29-30, Case No. 12-3970 (Fla. DOAH July 29, 2014).

    
    

    Likewise, the precepts in School Board Policy 3.02 are so general and aspirational that they are of little practical use in defining normative behavior.

43. Rule 6A-5.056(2)(b) incorporates by reference

    
    

    rule 6A-10.081, which is titled: "Principles of Professional Conduct for the Education Profession in Florida." Rule 6A- 10.081(2) provides, in pertinent part:

    1. Florida educators shall comply with the following disciplinary principles. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

       1. Obligation to the student requires that the individual:

          
          

          1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

             
             

             * * *

             
             

       2. Obligation to the public requires that the individual:

          
          

          * * *

          
          

          1. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

          
          

          * * *

          
          

       3. Obligation to the profession of education requires that the individual:

    
    

    1. Shall maintain honesty in all professional dealings.

    
    

44. Rule 6A-10.042, which is titled: "Test Administration and Security," provides, in pertinent part:

    1. Tests implemented in accordance with the requirements of Sections 1004.93, 1008.22, 1008.30, 1012.55 and 1012.56, F.S., shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.

       
       

       * * *

       
       

       1. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.

          
          

       2. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations.

       
       

       * * *

       
       

       (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.

       
       

45. School Board Policy 1.013 is a "rule" within the meaning of rule 6A-5.056(2)(c). School Board Policy 1.013 provides, in pertinent part:

    1. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state

    
    

    statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules.

    
    

46. School Board Policy 3.02 is a "rule" within the meaning of rule 6A-5.056(2)(c). School Board Policy 3.02 provides, in pertinent part:

    1. Accountability and Compliance

       
       

       Each employee agrees and pledges:

       
       

       1. To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace.

          
          

       2. To obey local, state and national laws, codes and regulations.

       
       

       * * *

       
       

       1. To take responsibility and be accountable for his or her acts or omissions.

          
          

       2. To avoid conflicts of interest or any appearance of impropriety.

       
       

       * * *

       
       

       j. To be efficient and effective in the delivery of all job duties.

       
       

       * * *

       
       

    2. Ethical Standards

    
    

    * * *

    
    

    c. Misrepresentation or Falsification – We are committed to candor in our work relationships, providing other Board employees including supervisors, senior staff and Board members with accurate, reliable and timely information. Employees should

    
    

    exemplify honesty and integrity in the performance of their official duties for the School District. Unethical conduct includes but is not limited to:

    
    

    * * *

    
    

    iii. Falsifying or misrepresenting information reported regarding the evaluation of students and/or District personnel[.]

    
    

47. Turning to the present case, the School Board proved by clear and convincing evidence that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2). As detailed above, the School Board proved by clear and convincing evidence that Respondent is guilty of misconduct in office by assisting students and interfering with students' answers during the FSA examination. By assisting students and interfering with students' answers during the FSA examination, Respondent failed to make reasonable effort to protect students from conditions harmful to learning; engaged in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties; intentionally distorted or misrepresented facts and information concerning the evaluation of students and an educational matter in direct or indirect public expression; failed to maintain honesty in all dealings; and failed to carry out her assigned duties in accordance with state rules and School Board policy.

    
    

48. As detailed above, the School Board proved that Respondent's conduct was clearly fragrant and purposeful.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and termination of Respondent's employment.1/

DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 1st day of September, 2017.

ENDNOTE

1/ The School Board also charged Respondent with violating sections 1008.24(2) and 1008.36, Florida Statutes. Section 1008.24(2) is titled "Test Administration and Security; Public Records Exemption." Subsection (2) states: "[a] person who violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083." Section 1008.36 creates the Florida School Recognition Program, a financial incentive program available to public schools in Florida, provided certain requirements, specified in the statute,

are met. Neither section 1008.24(2) nor 1008.36 establish any substantive standards of conduct that could be violated by a teacher for the purpose of imposing discipline.

COPIES FURNISHED:

Jean Marie Middleton, Esquire Helene K. Baxter, Esquire

Palm Beach County School Board Office of the General Counsel

3300 Forest Hill Boulevard, Suite C-323 West Palm Beach, Florida 33406 (eServed)

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)

Dr. Robert Avossa, Superintendent Palm Beach County School Board

3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

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.

Docket for Case No: 17-000614TTS

Orders for Case No: 17-000614TTS