STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE COUNTY SCHOOL BOARD, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 08-3880 |
ANNETTE D. DOZIER, | ) ) | |||
Respondent. | ) | |||
) |
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on April 1 and 2, 2009, in Bradenton, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Thomas Martin Gonzalez, Esquire
Christopher Bentley, Esquire Thompson, Sizemore, Gonzalez
and Hearing, P.A.
201 North Franklin Street, Suite 1600 Tampa, Florida 33602
For Respondent: Melissa C. Mihok, Esquire
Kelly & McKee, P.A.
1718 East Seventh Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
STATEMENT OF THE ISSUE
The issue is whether Petitioner, Manatee County School Board, had just cause to terminate Respondent's employment as a teacher.
PRELIMINARY STATEMENT
By letter dated July 24, 2008, Dr. Roger Dearing, then superintendent of the Manatee County School District ("School District") notified Respondent, Annette D. Dozier, that he was recommending to the Manatee County School Board ("School Board") that her employment be terminated. The Administrative Complaint alleged that during the 2007-2008 school year, Respondent:
(1) falsified Individual Education Plans ("IEP"), which she prepared and/or oversaw by placing in the IEP information that was false; and (2) prepared and/or oversaw IEPs which contained information that did not apply to the student who was the subject of the IEP and which, otherwise, did not comply with applicable and controlling laws, regulations, and policies.
As a result of the first allegation, the Superintendent charged Respondent with engaging in acts of misconduct and willfully neglecting her duties. The Superintendent alleged that the actions violated Florida Administrative Code Rule 6B-1.006(3)(d), which provides that an educator will not
intentionally suppress or distort subject matter relevant to a student's academic program; Florida Administrative Code Rule
6B-1.006(3)(f), which provides that an educator will not intentionally violate or deny a student's legal rights; Florida Administrative Code Rule 6B-1.006(5)(a), which provides that an educator will maintain honesty in all professional dealings; Florida Administrative Code Rule 6B-1.006(5)(h), which provides that an educator will not submit fraudulent information on any document in connection with professional activities; and Florida Administrative Code Rule 6B-1.001(2) and (3).
As a result of the second allegation, Respondent is charged with willful neglect of duties, misconduct, and violating School Board policies relating to Exceptional Student Education ("ESE").
The Superintendent determined that the alleged violations constitute just cause for Respondent's termination as an employee of the School Board.
Respondent timely challenged the proposed action and requested an evidentiary hearing.
The matter was forwarded to the Division of Administrative Hearings on August 8, 2008, for assignment of an Administrative Law Judge to conduct the hearing. By Notice issued on
August 25, 2008, the hearing was scheduled for September 25, 2008. Prior to the scheduled hearing, Respondent filed an Unopposed Motion to Continue Hearing. The motion was granted, and the hearing was rescheduled for October 20, 2008.
Thereafter, the parties filed a Joint Motion to Continue Hearing. The motion was granted, and the hearing was scheduled for January 6, 2009. Subsequently, on December 23, 2008, the School Board filed an Unopposed Motion to Continue Hearing.
That motion was granted, and the hearing was rescheduled for April 1 and 2, 2009.
At hearing, the School Board presented the testimony of
12 witnesses. The School Board's Exhibits 1 through 17 were admitted into evidence. Respondent testified on her own behalf and called two witnesses. Respondent's Exhibits 1 through 3 were admitted into evidence.
The Transcript of the proceeding was filed on April 23, 2009. At the conclusion of the hearing, the parties agreed to file their proposed recommended orders ("PRO") ten days after the transcript was filed. Prior to that due date, the parties filed a joint motion to extend the time to file PROs. The joint motion was granted, and the time for filing PROs was extended to June 2, 2009. The School Board timely filed its PRO on June 2, 2009. Respondent filed an Unopposed Motion to File Proposed Recommended Order Out of Time, requesting leave to file Respondent's proposal on June 5, 2009. The motion was granted. On June 8, 2009, Respondent filed a Second Unopposed Motion to File Proposed Recommended Order Out of Time and filed her PRO contemporaneously. The motion was granted. Both Proposed
Recommended Orders have been considered in preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
Respondent has been employed as a teacher by the School Board since August 15, 1995. As a member of the School Board's instructional staff, Respondent's employment is subject to Section 1012.33, Florida Statutes (2008),1 which provides that her employment will not be terminated except for just cause.
The School Board is a constitutional entity charged with the duty to operate, control, and supervise the public schools within the School District.
Exceptional Student Education
Exceptional Student Education covers a range of students who have individual needs that must be addressed by a specific plan for education, called an Individual Education Plan. The drafting and maintenance of IEPs is governed by federal and state law.
The government may complete audits of district ESE records from time to time, although audits are not completed every year. However, the School District self-reports ESE compliance issues to the government.
IEPs are valid for one year and must be rewritten annually, although not necessarily coinciding with the beginning
of each school year. Generally, a draft form of the IEP is prepared and taken to an IEP meeting to be reviewed by individuals who are involved with the student's education ("IEP team"), including ESE teachers, regular education teachers, guidance counselors, and parents.
Although everyone who is directly involved with the student's education is invited to the IEP meeting, it is not necessary that each individual attend for the IEP to be valid. For instance, if parents or service providers do not attend, the IEP is not invalid. All members of the IEP team attending the IEP meeting are required to sign a signature page indicating their attendance.
The parents of the students are legally entitled to two notices of the IEP meeting, the first being at least ten days prior to the meeting. The notice can be written or verbal, but should be documented in the ESE file. Parents may waive their right to ten days' notice of the hearing.
One person is assigned as the school's Local Education Agency (LEA). An LEA must be present at all IEP meetings which are required to ensure that ESE guidelines are followed.
Students are required to be evaluated by service providers, such as speech-language pathologists, psychologists, social workers, and occupational therapists and to be
re-evaluated every three years. The re-evaluation must be
completed within three years from the calendar date of the earliest testing completed in the previous evaluation or re-evaluation.
Each service provider is expected to review the file and to complete a re-evaluation. However, a re-evaluation is not required if the student's IEP team determines that such
re-evaluation is not needed. Furthermore, re-evaluations are not required to draft an IEP.
Prior to any testing, evaluation or re-evaluation of a student, the consent of the parent must be obtained. The consent forms are valid for one year after the parent's signature is obtained.
Each student receiving ESE services should have a file which includes documentation, such as his/her IEP. Students who have more than one exceptionality (such as speech-language) will often have more than one file housed in the ESE office. Also, students who have been receiving ESE services for a long period of time often require more than one file folder to contain all of the documents.
The School District obtains funds from the government based upon the ESE status of the students in the district. Students who receive ESE services are given more funding than students in regular classes. The funding is allocated on a
per-student basis, and ESE students receive different levels of
funding depending on the classification of their disabilities. In order to qualify for the funds, IEP and other relevant documents must be in compliance with certain guidelines referred to as FTE or "full time equivalent."
There are two FTE periods during each school year wherein the ESE files must be compliant in order to obtain funds; the first one is in October and the second one is February.
Respondent's Employment at Haile Middle School
Respondent has been employed by the School Board as a teacher for 13 years. For the past several years, and at all times relevant to this proceeding, Respondent was an ESE teacher at Haile.
In 2005-2006, after the preceding ESE department chair was transferred to another school, Janet Kerley, principal at Haile, asked Respondent if she would serve as the ESE department chair. Respondent accepted the job and had served continuously as ESE department chair until early February 2008.
While serving as ESE chair, Respondent continued to work as an ESE teacher, and her position was designated as such by the School Board. As ESE department chair at Haile, Respondent received a stipend.2
In 2005-2006, when Respondent first became the ESE department chair, her work day was divided evenly between
teaching her scheduled ESE classes and ESE department chair duties.
Training for ESE Chair Position
No special training was provided for Respondent to serve as ESE department chair.
The School District assigned an ESE specialist to each secondary school, including Haile. The ESE specialist's role was to provide support to the ESE department chair. However, ESE specialists had no supervisory responsibilities for the ESE department chair.
In the 2006-2007 school year, Emma Mileham, the ESE specialist assigned to Haile that year, gave Respondent a checklist titled, "ESE Department Chair Responsibilities." She also distributed "monthly mind joggers," titled, "ESE Teacher Activities." The checklist of the department chair's responsibilities included reviewing ESE files.
During the 2007-2008 school year, Amy Lloyd, the ESE specialist assigned to Haile, interacted with Respondent once a week as part of the school's Child Study Team. However, Lloyd did not provide any list of job responsibilities to Respondent.
Kerley evaluated Respondent's work performance in the past and found her work to be satisfactory. Prior to the allegations that gave rise to this action, Kerley never
perceived deficiencies in Respondent's ability to maintain the ESE files.
During Respondent's 13-year tenure as a teacher in the School District, she has consistently received satisfactory evaluations and has never been the subject of a disciplinary matter.
Changes Impacting ESE Department in 2007-2008
Jerry Hernandez was appointed as the assistant principal at Haile for the 2007-2008 school year. Kerley designated Hernandez as the school's ESE administrator. As ESE administrator, Hernandez was responsible for ensuring compliance with FTE requirements, implementation of IEPs, and monitoring the ESE department chair.
In the 2007-2008 school year, two changes were implemented which impacted the ESE Department at Haile and those working in that area. First, as part of an overall change implemented by the School District, ESE teachers at Haile were required to use a new computer system for creating ESE documents (i.e., IEPs, notices, consent forms, etc.). Second, there were significant changes in job responsibilities of the ESE department chair at Haile implemented at the school level. Computer System Changes
Prior to the 2007-2008 school year, Haile was using a software program called Dynamo to assist in the maintenance of
ESE files. Dynamo was primarily based upon the use of "hard copies" of relevant documents and was limited to each user's computer.
At the end of the 2006-2007 school year, Haile switched from the Dynamo software to a web-based program
called the A3 system ("A3"). The main difference between Dynamo and A3 was that A3, as a web-based program, allowed individuals to view relevant documents from any computer by logging into the system.
After Haile switched from Dynamo to A3, the teachers and service providers were encouraged to input all previous IEPs drafted in Dynamo into the A3 system. In fact, after the School District switched to the A3 system, there was a "push" by administrators to have all IEPs inputted into A3. To accomplish this, Respondent typed IEPs drafted in Dynamo and those received from other states into the A3 system verbatim, so that teachers and other individuals would have access to the information from their computers. Also, other Haile employees, including ESE teachers Athena Jantzen and Alice Moreland, and speech-language pathologist, Marie Bryant-Jones, input Dynamo IEPs into the A3 system.
At the end of the 2006-2007 school year, the speech- language pathologist then assigned to Haile, Bryant-Jones, input goals for each student who received speech services into the A3
system. The next speech-language pathologist was free to revise the goals as she saw fit.
The fact that Respondent and ESE teachers were inputting IEPs originally drafted in Dynamo into the A3 system was common knowledge at Haile.
The School District provided training in the A3 system for ESE teachers at or near the end of the 2006-2007 school year. Additionally, on March 20, 2007, a district-sponsored
one-on-one training was offered to the staff of Haile. Respondent attended that session and the training staff spent that day reviewing and/or explaining the A3 system. The training staff also worked with and helped Respondent input the current IEPs in the A3 system in order "to speed up the process."
To start a new IEP in A3, the user is required to click on "Copy IEP" on the computer page. Clicking "Copy IEP" makes an identical copy of the last IEP in the system, including goals and objectives for other information about the student. The dates for the previous IEP remains the same until the user manually changes the date. This copy is a "draft" which becomes the new IEP when the modified or updated information is input into the A3 system.
ESE Department Chair Changes in Responsibilities in October 2007
Prior to October 2007, ESE teachers at Haile were responsible for the ESE files of the students they taught, and each ESE teacher drafted the IEPs for their students. In October 2007, Hernandez told Respondent that as the department chair, she was now to assume responsibility for all of the ESE files at Haile. Hernandez explained to Respondent that this change was being made because the ESE teachers had complained to him that they could not, or no longer wanted to, take care of the ESE files and to teach their classes.
When Hernandez told Respondent that she was now responsible for maintaining all of the ESE files, Respondent informed Hernandez that she was not happy about that added responsibility. In response, Hernandez told Respondent not to worry about the files, indicating that they (the files) would "take care of themselves." Hernandez than told Respondent that she should concentrate on giving as much support to the teachers as possible.
In October 2007, when Hernandez assigned Respondent the responsibility for maintenance of all ESE files, there were approximately 170 ESE files that needed to be maintained in compliance with FTE guidelines.
Except for the foregoing, Hernandez never specifically informed Respondent of what her new duties were as ESE department chair.
In October 2007, after being given the responsibility for all ESE files, Respondent drafted IEPs into the A3 system for students she did not have in class by getting feedback from the students' teachers and reviewing the students' progress reports.
One ESE teacher at Haile, Athena Jantzen, continued to draft some of her own students' IEPs, as Respondent was overloaded with work.
Service providers, such as speech-language pathologists and psychologists, were still expected to draft and enter their own goals into the A3 system. If a student received only speech services, the speech-language pathologist was responsible for drafting the student's IEP and maintaining the file.
After being assigned the responsibility for all the ESE files, Respondent asked the ESE clerk to print copies of various active IEPs from A3. Respondent requested the copies so that a copy of the student's IEP could be included in each file related to that student. The IEPs and related documents were printed from the A3 system, not photocopied, and reflected a print date of October 17, 2007, on the top of each page.
The executed signature pages of the IEP which could not be printed from A3, were not photocopied by the ESE clerk and were not included in each file.
After being assigned the responsibility for all the ESE files, Respondent continued to teach her assigned ESE class and perform cafeteria duty on a daily basis. Respondent was also pulled almost weekly from her department chair responsibilities to cover additional classes.
Responsibilities Related to ESE Compliance Issues
As chairperson for the ESE Department, Respondent was charged with the maintenance and oversight of IEPs.
At Haile, the guidance counselor is designated as the school's LEA.
At Haile, the registrar was designated by the school administration to set up IEP and revision meetings.
The ESE clerk, who worked at Haile one day a week, was assigned to mail out the notices of meetings to the parents.
When students enrolled at Haile from another school, the registrar or guidance counselor would inform Respondent if the child required ESE services.
Error Reports
Respondent received an "error report" from the school's registrar almost weekly. The error report identified potential compliance issues with the ESE files, but did not
represent a completely accurate accounting of the files. For example, it would not identify compliance issues, such as a missing signature page for an otherwise valid IEP. Respondent used the error report to ensure that IEPs were timely updated and reviews for re-evaluations were timely initiated.
Hernandez, as ESE administrator, received an "error report" about three times a year.
Error reports were available to service providers who requested them. These error reports were obtained and used by some service providers to determine when the re-evaluations for which they were responsible were due.
Systems to Notify Service Providers of Re-Evaluation Dates
While ESE department chair, Respondent used the following three different systems to notify and/or remind service providers when students needed to be re-evaluated:
(1) the "white board" system; (2) the "file drawer" system; and
(3) the "binder" system.
At some point prior to the 2007-2008 school year, Respondent used the "white board" system. Under that system, Respondent listed the names of students whose re-evaluation date was approaching and the due date of the re-evaluation on a "white board" that was located in the ESE office. Respondent updated the "white board" monthly.
In the 2007-2008 school year, Respondent used the "file drawer" and "binder" systems to notify service providers of upcoming re-evaluation dates. The "file drawer" system consisted of placing all files that needed to be reviewed and/or files of students who were ready for testing in a file drawer designated and labeled for that specific category. In the case of a file review, Respondent would initiate the file review and then put the ESE file in a drawer labeled, "File Review." The service providers would simply go to the drawer and pull out student files to complete their review. Once the file review was completed and the student was ready for testing, the ESE file would be placed in the re-evaluation and/or evaluation drawer.
At the beginning of the 2007-2008 school year, Respondent informed all of the service providers assigned to Haile of the "file drawer" system. Among the service providers Respondent informed about the "file drawer" system were Krista Cournoyer, a school psychologist, and Julia Caldwell, a speech- language pathologist. Respondent specifically explained the use of the file drawers to them, because this was their first year working at Haile.
The "file drawer" system is a typical system used by schools in the School District, but schools are not required to
use that system. Instead, schools have the option of developing and using any system they choose.
Early in the 2007-2008 school year and at all times relevant to this proceeding, the "binder" system was initiated at Haile.3 Under that system, the names of students who required testing and re-evaluations were placed in a binder (notebook) in the ESE office. Respondent and Karen Ciemniecki, the ESE evaluator assigned to Haile, updated the information in the binder. The various service providers could utilize the information in the binder to determine which students they needed to test and/or re-evaluate.
Service providers were free to use either the "file drawer" or "binder" system to determine when they were to review a file and re-evaluate a student. In addition to utilizing those systems, the service providers could also obtain an error report which would provide information concerning re-evaluations which were due the following month.
Both the "file drawer" and the "binder" systems provided the service providers the means to determine when a review and re-evaluation was due, without the direct assistance of Respondent.
During the 2007-2008 school year, several service providers, including Ciemniecki and Caldwell, used the "file drawer" and/or "binder" systems to determine when student file
reviews, testing and re-evaluations were to be done. In addition to using the established systems, both Ciemniecki and Caldwell obtained error reports from either Respondent or Haile's registrar.
Cournoyer, like the other service providers, was aware of the "file drawer" and "binder" systems and knew how to use them. Nonetheless, Cournoyer believed that the systems were inadequate and did not ensure that she would consistently know when the re-evaluations for which she was responsible were due.
Although the systems in place were not perfect, if utilized, they provided a reasonable means to determine when reviews and re-evaluations were due. Moreover, the error reports, if obtained and used, provided an additional source by which service providers could determine about a month in advance when re-evaluations were due.
There were times when there were files in the designated file drawer that Cournoyer needed to review. In those instances, Respondent removed those files from the drawer and handed them to Cournoyer, indicating that they needed to be reviewed.
Events Leading to Investigation
In January 2008, Cournoyer believed that it appeared that she was not completing re-evaluations in a timely manner. Cournoyer also believed that the reason for any delays in
completing the re-evaluations was that she did not get all the requisite forms for those re-evaluations until they were overdue.
On or about January 31, 2008, Cournoyer was conducting a file review for Student E.A. While reviewing the file, she noticed that an IEP meeting was conducted for this student on January 8, 2008. Upon reviewing the file, Cournoyer had two concerns. First, she had not been invited to that IEP meeting. Second, the documentation in the file indicated that the meeting occurred three weeks before Cournoyer was notified of the need to conduct a file review for this particular student.
While reviewing the file of E.A., Cournoyer noticed that the student was receiving services from Caldwell, the speech-language pathologist. She then gave the file to Caldwell who, upon review of the file, noticed that the speech goals were already written on the student's active IEP. Caldwell was concerned that she had not written those goals, as it had been her intent to dismiss the student from speech-language services, and that she had not been invited to the IEP meeting.
Caldwell discussed her concerns about the speech goals for E.A. with Respondent, who instructed her to set up a meeting to revise the IEP.
Cournoyer shared her concerns about "overdue"
re-evaluations in an email to Respondent, but disagreed that
there was a system in place that addressed her concerns. Dissatisfied with Respondent's response to her email, Cournoyer then sent an email to members of Haile's Child Study Team, including Lloyd, the ESE specialist. After receiving a response from Lloyd, Cournoyer sent an email about her concerns to the Haile administrators, including Hernandez, and ESE staff on or about February 1, 2008.
After receiving Cournoyer's email, Hernandez requested that she provide additional information about her allegations and concerns. In response to that request, Cournoyer provided Hernandez with a list of students and dates of re-evaluations that were overdue.
On Sunday, February 3, 2008, Hernandez and Cournoyer met at Haile and reviewed the ESE files. During that review, they found some files that were missing signature pages and that one IEP appeared to have an altered date on a consent form.
After conducting a preliminary investigation, Hernandez reported his findings to Principal Kerley who, in turn, contacted the School District's Office of Professional Standards ("OPS"). OPS then initiated an investigation of Respondent and the maintenance and formulation of the ESE files at Haile.
Respondent was placed on administrative leave on February 5, 2008, before the February 2008 FTE cut-off date.
During that leave, Respondent was prohibited from communicating with School District employees or entering the premises of Haile.
Prior to being placed on administrative leave, Respondent was not informed of the allegations against her.
The matter was assigned to Debra Horne, a specialist with OPS. After reviewing an email about the case from Hernandez, Horne decided to allow the ESE department to review the ESE files at Haile.4
On February 6, 2008, the ESE team, consisting of all the secondary ESE specialists and the ESE coordinator, Joe Roberts, conducted a preliminary review of the ESE files at Haile for compliance issues. That same day, Roberts memorialized the review team's preliminary findings in an email to the ESE director, Ron Russell. According to the email, the ESE team conducted a two-hour review of the ESE files and found about ten files with problems (i.e., missing signature pages, what appeared to be an altered consent form, and IEPs which appeared to be copied from previous year's IEPs).
The email memorializing the findings noted that the ESE office was not organized and that "many folders and confidential information were spread out in varying locations of the office, not in a secured fashion." The email also noted
that the team looked for "numerous folders [files] and could not locate them in the filing system."5
On February 29, 2009, Horne met with Roberts and Lloyd to review the ESE files and the ESE team's preliminary findings. Based on the review of the files, the OPS determined that 15 ESE files were non-compliant for FTE (funding) purposes and that another five ESE files had compliance issues that did not affect funding.
On March 13, 2008, Horne interviewed Respondent about the findings of the ESE review team. The purpose of the interview, which lasted most of the day, was to allow Dozier the opportunity to offer an explanation of the alleged compliance issues concerning specific ESE files.6
Prior to the March 13, 2008, interview, school officials did not notify Respondent of the allegations or allow her to respond to those changes.
After completing the investigation and interviewing Respondent, Horne published her findings in an investigative report.
The findings in the OPS investigative report and which are the bases of the charges against Respondent in this case involve the non-compliant ESE files referenced above. Specifically, the investigative report found and determined that: (1) 15 ESE files were non-compliant for FTE or funding
purposes; and (2) five ESE files had compliance issues that did not affect funding.
As a result of the 15 non-compliant ESE files, the affected students were returned to basic funding, causing a decrease in the overall funds available to the School District. Nevertheless, those identified students were provided with services in accordance with their IEPs.
Non-Compliant ESE Files Resulting in Loss of Funds Student A.C.
The investigative report found that there was no signature page in the ESE file of A.C. for the April 10, 2007, IEP. Without a properly-executed signature page, the IEP is invalid.
Respondent testified credibly that she did not know if she conducted the IEP meeting when the April 10, 2007, IEP was developed, but believed that A.C. may have had more than one file. This belief was based on the fact that A.C.'s primary disability was "language impairment," and A.C. received speech services. Typically, such students had two ESE files, one of which was kept by the speech-language pathologist.
The April 10, 2007, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile.
Respondent further testified credibly that she could have and intended to locate the signature page before the FTE window closed.
Student J.B.
The investigative report found that the ESE file of
J.B. did not contain a signature page for the November 6, 2006, IEP. Without a properly executed signature page, the IEP is invalid.
The November 6, 2006, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Moreover, there is no evidence that Respondent conducted or was present at this IEP meeting.
Respondent testified credibly that she could have and intended to locate the signature page for the November 6, 2006, IEP before the FTE window closed.
The investigative report found that a second IEP for
J.B. indicated that it was drafted on January 25, 2008, but the registrar was informed it was drafted on October 23, 2007. However, there is nothing in the record to establish that the registrar made such a statement.
Student Z.L.
The investigative report found that the ESE file of
Z.L. did not contain a signature page for the March 19, 2007, IEP.
The IEP for Z.L. dated March 19, 2007, was drafted while Z.L. was attending Freedom Elementary School ("Freedom"), and, thus, was drafted by employees of Freedom. This IEP was valid through March 18, 2008.
Freedom is a school in the School District, and the IEP developed at that school was apparently put in the A3 system.
The March 19, 2007, IEP was printed on October 19, 2007, and was a copy of the IEP from Freedom dated March 19, 2007. Because the IEP printed in October 2007 was a copy of a valid IEP, no signature page was required.
No determination was made as to whether the original March 19, 2007, IEP, with the fully executed signature page, was ever sent by Freedom to Haile. The signature page could not be printed from the A3 system. Therefore, unless the original or a photocopy of the fully executed signature page of the March 19, 2007, IEP had been sent to Haile, the school would not have the signature page.
Student A.L.
The investigative report found that there was no temporary IEP written for A.L. after the student transferred to the School District in September 4, 2007, from an out-of-state school.
In September 2007, when A.L. enrolled at Haile, the student had a valid IEP from the out-of-state school district. The out-of-state IEP was for the period March 7, 2007, through March 6, 2008, if the student had remained in that state. Once the student was enrolled, the School District had six months from the student's enrollment date to develop a temporary IEP. Accordingly, a temporary IEP should have been developed on or before March 4, 2008.
A temporary IEP was not developed for A.L. prior to or by March 4, 2008, or as of March 13, 2008, when Respondent was interviewed by Ms. Horne.
Although the temporary IEP had not been developed prior to Respondent's being placed on leave, steps were being taken to develop the IEP prior to Respondent's being placed on leave. For example, Ciemniecki administered achievement tests to A.L. in late September 2007. Also, Cournoyer was reviewing the student's file and also testing the student.
Respondent was placed on leave February 5, 2008, about one month before the temporary IEP was required to be
developed. Thus, no conclusion can be reached as to whether Respondent would have taken the necessary steps to ensure that the temporary IEP was developed by March 4, 2008. On the other hand, it is equally apparent that after being placed on leave, Respondent was prevented from and could not take any steps to ensure that a temporary IEP was developed for A.L. Therefore, it can not be concluded that Respondent is responsible for the failure to timely develop a temporary IEP.
The credible testimony of Respondent was that she intended to take steps to ensure that an IEP was drafted within six months of A.L.'s enrolling in the School District.
An issue was raised regarding what appeared to be inconsistent dates on the Informed Notice and Consent for Evaluation/Re-evaluation ("Informed Notice and Consent") form. That form included spaces in which the following was to be provided: (1) the referral date; (2) the parent's signature, either giving or denying consent for the evaluation; and (3) the date of the signature. The referral date printed or typed on the form is February 26, 2006. The parent's signature, giving consent for the evaluation, was dated September 24, 2007.
The concern expressed was that the date of the referral, February 26, 2006, was more than a year and a half prior to A.L. enrolling in the School District. This discrepancy was explained by the credible testimony of
Respondent. According to that testimony, the above-referenced consent form was from the Dynamo computer system and had been used to make copies of blank forms to be used. However, the "referral date," February 26, 2006, had been printed or typed on the original form, and that date had been inadvertently left on the form prior to copies of the form being made.
Student S.H.
The investigative report concluded that S.H.'s IEP dated April 26, 2007, was invalid because it was created at Haile four or five months prior to the student's enrolling in the School District on September 5, 2007.7
The ESE file of S.H. contained a valid IEP dated April 26, 2007, that was drafted while the student was living out-of-state and enrolled in an out-of-state school. That IEP would have been valid through April 25, 2008, had the student remained in the out-of-state school district.
In addition to the out-of-state IEP, the ESE file of
S.H. also contained another IEP dated April 26, 2007, which indicated that, as of that date, the student was attending Haile. There was also a fully executed signature page for this April 26, 2007, IEP, which had been signed by the parent, Respondent, and six other individuals. In addition to the parent and Respondent, six others signed the signature page of that IEP.
Contrary to the allegations, the IEP for S.H. created at Haile was not created on April 26, 2007, four months before the student enrolled in the School District. Respondent testified credibly that she input the data from the out-of-state IEP into the A3 system. However, while inputting information in A3 for the student's new IEP, she neglected to change the IEP plan date from April 26, 2007, to the new IEP plan date.
The testimony of Respondent is supported by a careful review of contents of the IEP. For example, the IEP clearly indicates that the student is now enrolled at Haile as a "transfer [student] from out of state."8
The signature page of the Haile IEP also mistakenly shows that the IEP was developed on April 26, 2007. However, the upper right corner of that signature page indicates that the signature page form for S.H.'s Haile IEP was printed from the A3 system at 7:18 a.m., on October 29, 2007, almost two months after S.H. enrolled in the School District. As noted above, only blank signature page forms can be printed from A3. Therefore, the signatures had to be placed on the signature page some time after the form was printed.
Respondent's failure to change the plan date of the student's out-of-state IEP to the plan date of the new IEP created at Haile, was due to human error.
Student S.R.
The investigative report found that S.R.'s ESE file did not contain an IEP, a notice of IEP meeting, or signature page.
S.R.'s ESE file contained a valid IEP dated February 8, 2007, drafted while the student was at Gene Witt Elementary ("Witt"), a school in the School District. The IEP was drafted by employees at Witt and was valid through February 7, 2008.
The file also contained an IEP with a plan date of February 7, 2008 (the same as the Witt IEP), indicating that the student was attending Haile at the time of the IEP. Respondent testified credibly that she typed the data contained in the Witt IEP, which was in the Dynamo System, into the A3 system so that the data would be available to other teachers.
Respondent testified credibly that she had no intent to make it appear that S.R. was attending Haile in February 2007. Respondent further testified credibly that when an individual inputs data into the A3 system, the school that the individual is assigned to automatically "pop[s] up" in A3 as the student's school.
The document included in the investigative report that is the basis for discipline against Respondent is a copy of S.R.'s IEP that was created at Witt dated February 8, 2007.
That IEP was printed from A3 on October 19, 2007. Because the IEP is a copy of a valid IEP, no signature page was required. Likewise, no notice of the IEP meeting was required.
No evidence was presented to establish that the notice and fully executed signature page of the subject IEP were ever received by Haile.
Student E.M.
The investigative report found that the ESE file of
E.M. did not contain a signature page for the April 11, 2007, IEP, and, thus, the IEP was invalid.
E.M.'s April 11, 2007, IEP notes that the student's primary exceptionality is "language impaired." During the March 2008 interview, Respondent informed the OPS investigator that she believed E.M., as a language-impaired student, had two ESE files, one of which was maintained by the speech-language pathologist.9
Respondent testified credibly that she could have and intended to locate the signature page or schedule another IEP meeting before the FTE window closed.
The April 11, 2007, IEP was drafted during the previous school year and prior to Respondent becoming responsible for the maintenance of all ESE files at Haile.
Student M.D.
The investigative report found that the ESE file of
M.D. did not contain a valid IEP. According to the report, Respondent gave a plan date of November 2, 2007, to the registrar, but failed to create an IEP on that date.
On November 2, 2007, a parent conference was called and conducted by Ms. Moreland, a teacher at Haile. Respondent did not attend the parent conference, but about mid-meeting, Moreland went to Respondent's office. Moreland then told Respondent that the team originally intended to remove M.D. from mainstream classes, but during the parent conference decided against it.
The November 2, 2007, date may have been incorrectly given to the registrar as the IEP plan date.10 However, the meeting conducted on that date was a parent conference, and unlike IEP plan dates, are not reported to the registrar.
It is alleged that the report of the conference and IEP revision sheets were incomplete. However, as a result of the team's decision that M.D. services remain the same (he would remain in mainstream classes), there was no need for the partially completed revision form to be included in M.D.'s ESE file. Thus, Moreland should have discarded that form.
M.D.'s ESE file included a valid IEP dated
February 8, 2007. This IEP was valid through February 7, 2008.
The short-term objectives from M.D.'s 2007 and 2008 IEPs were identical. The latter IEP was dated March 6, 2008, after Respondent was on administrative leave and Jantzen was interim department chair.
Student E.R.
The investigation found that E.R.'s sixth-grade IEP appeared to be copied "exactly" from the student's fifth-grade IEP. The concern was that the information copied from the fifth-grade IEP to the sixth-grade IEP did not accurately reflect an appropriate measurable annual goal in the area of math.
The annual measurable goal on E.R.'s fifth-grade IEP and copied on the student's sixth-grade IEP was that the student "will satisfy fifth grade math requirements." However, during the investigation, it was established that the student was performing above the fifth-grade level in math at Haile. Thus, that previous math goal should have been changed.11
The fifth-grade IEP was developed on December 7, 2006, when E.R. was enrolled at Freedom Elementary School ("Freedom") and remained effective through December 6, 2007.
E.R. was enrolled as a sixth-grader at Haile in the 2007-2008 school year. Therefore, the fifth-grade IEP was effective the first few months of E.R.'s sixth-grade year at Haile.
Pursuant to the administration's instructions, after
E.R. enrolled at Haile, Respondent input the information from the December 2006 IEP into A3.12 Although E.R. was in the sixth grade, the IEP was effective until December 6, 2007.
The December 7, 2006, IEP, upon which the OPS refers, was printed on October 19, 2007, and is a copy of the IEP developed at Freedom, except that E.R.'s school and grade had been changed. The student's school was changed from "Freedom" to "Haile" and the current grade was changed from fifth to sixth.13
Respondent testified credibly that she did not know who changed the grade and school on E.R.'s December 2006 IEP. Moreover, no evidence was presented as to who made those changes. However, undoubtedly, on October 19, 2007, E.R. was enrolled at Haile and was in the sixth grade.
Respondent testified credibly that in inputting E.R.'s December 7, 2006, IEP, developed at Freedom, into the A3 system, she did not intend to make it appear that E.R.'s December 7, 2006, IEP was developed at Haile.
Student C.D.
The investigative report found that Respondent gave the registrar an IEP plan date on January 30, 2008, but A3 indicated the meeting was held the following day. Having the IEP meeting on the following day would not necessarily be a
violation.14 However, C.D.'s ESE file did not contain a notice of a January 30 or 31, 2008, IEP meeting, an IEP, or a signature page for either of those dates. If a meeting were held on either of those days, a notice of the meeting and a signature page should be in the file.
C.D.'s ESE file contained a valid IEP dated February 5, 2007, that was valid through February 4, 2008.
Respondent testified that she intended to draft another IEP and hold a meeting before the deadline, which would have brought the file into compliance with the FTE requirements. Notwithstanding Respondent's testimony, there was no indication that an IEP plan meeting had been scheduled on or before February 4, 2008, and that notices of such meeting had been sent to parents and other appropriate individuals.
Unless an IEP plan meeting had been scheduled and properly noticed, regardless of Respondent's intent, an IEP could not have been developed on or before the February 5, 2007, IEP expired.
Student J.D.
The investigative report found that the goals from J.D.'s 2008 IEP are identical to the student's 2007 IEP, which was effective from January 26, 2007, through January 25, 2008, unless and until a new IEP was developed.
A new IEP ("2008 IEP") was developed for J.D. on January 14, 2008, and was effective from that date until January 13, 2009.
During her March 2008 interview with OPS, Respondent informed Horne that she was taught that the goals of a student who was not meeting with success could be carried over to the next year.
Other district employees confirmed that it was common practice to carry over goals from one year to the next.
J.D.'s 2007 IEP indicates that Jantzen was the contact person for the IEP and that Respondent was not invited to the IEP meeting.
J.D.'s 2008 IEP indicates that Respondent was not invited to the IEP meeting. Jantzen signed the signature page of this IEP as the ESE teacher, and Nosal, Moreland, Edmonson, and J.D.'s parent also signed the page.
Jantzen, the current ESE department chair at Haile, testified credibly that a student's goals could be carried over to the next year, if deemed appropriate. According to Jantzen, it would be proper to include a note on the IEP regarding the reason(s) why the goals were carried over. However, there is no indication that Jantzen did so in J.D.'s file.
Student M.M.
The investigative report found that M.M.'s IEP dated April 4, 2007, did not include an LEA signature.
Respondent informed OPS that it was probably an oversight that the LEA failed to sign the signature page. Respondent testified credibly that she would not have held a meeting if an LEA was not present, and it was likely that she anticipated an LEA coming or that the LEA was in attendance, but failed to sign the sheet.
Typically, in the School District, the ESE department chair is the designated LEA at his/her respective school. However, at Haile, the school's guidance counselor, not the ESE department chair, is the designated LEA. If and when the guidance counselor at Haile is unavailable to serve as LEA, other individuals at the school, including Respondent, as the ESE department chair, were authorized to act as LEA.
The failure to obtain the signature of an LEA at the April 4, 2007, IEP meeting was an oversight. Respondent was at that meeting and signed the signature page as the ESE teacher/evaluator. In the absence of the guidance counselor or another person designated as LEA, Respondent could have signed as LEA in addition to signing as ESE teacher/evaluator.
Respondent was not aware that the LEA had not signed the form until she (Respondent) was interviewed by OPS. If
Respondent had become aware of the problem prior to being placed on administrative leave, she could have taken one of two steps to correct the situation before the FTE window closed.
To correct the omission of the LEA signature, Respondent could have scheduled another IEP meeting if no LEA was present. According to Hernandez, corrective action could have been taken by having the LEA sign off after the meeting, if that person had attended the meeting, but forgot to sign.15
Due to her oversight, Respondent took no corrective action to obtain the signature of an LEA on M.M.'s IEP dated April 4, 2007. As a result of this oversight, the IEP was not compliant for the October 2007 or the February 2008 cut-off
date.
Student B.R.H.
The investigative report found that B.R.H.'s IEP
dated March 6, 2007, did not include an LEA signature. The effective period of that IEP was March 6, 2007, through March 5, 2008.
Respondent signed the signature page of the March 6, 2007, IEP as the ESE teacher/evaluator.
In addition to signing the signature page as the ESE teacher/evaluator, Respondent, as ESE department chair, also could have signed as LEA if the primary LEA representative was not at the meeting.
The corrective action discussed in paragraph 148 could also have been taken if the LEA representative attended the meeting, but left without signing the signature page.
Respondent was not aware of the omission of the LEA signature until it was called to her attention during the March 13, 2008, OPS interview. Had Respondent been aware of that omission prior to that time, she could have taken appropriate corrective action.
Because Respondent was unaware of the situation prior to that time, no corrective action was taken prior to the October 2007 FTE cut-off date.
Student J.G.
The investigative report determined that the ESE file of J.G. could not be found. Despite that determination, it was not established when this student enrolled at Haile and/or if that student's ESE file was ever delivered to Haile. Moreover, at this proceeding no testimony or evidence was presented as to whether the ESE file was found after Respondent was placed on administrative leave.
As ESE department chair, Respondent was responsible for maintaining the ESE files. However, in this instance, it is unknown when, and if, J.G. enrolled in Haile and/or if the student's file was ever delivered to the school.
Assuming, though not finding it, that J.G's ESE file was at Haile, no evidence was presented that Respondent intentionally or otherwise concealed the file.16
The credible testimony of Respondent was that she did not conceal J.G.'s ESE file.
Student B.M.
The investigative report found that B.M.'s ESE file could not be found.
It was not established that B.M. was a student at Haile, whether the student enrolled at Haile, or if B.M.'s ESE file was ever delivered to Haile. Also, no evidence was presented at the hearing as to whether the file was found since Respondent was placed on administrative leave.
During the March 13, 2008, OPS interview, Respondent informed Horne that she did not know B.M. Also, Respondent testified credibly that she did not know B.M. and never saw B.M.'s ESE file.
There was no evidence presented at the hearing that Respondent intentionally concealed the ESE file of B.M. or that the file was ever at Haile.
Alleged Deficiencies Not Resulting in Loss of Funds Student E.A.
The investigative report found that Respondent falsified an Informed Notice and Consent form for E.A. This
finding was based on a comparison of two Informed Notice and Consent forms for E.A.
Informed Notice and Consent forms: (1) advise parents that their child has been recommended for an evaluation, re-evaluation and/or file review; (2) indicate the types of assessments that may be used; (3) provide parents the option to either give or deny consent for the evaluation; and (4) provide a signature and date line for parents to complete. Informed Notice and Consent forms also provide spaces for information, such as the student's name, address, school, grade, and teacher's name ("identifying information").
On both of the Informed Notice and Consent forms for E.A., the identifying information had been written in the appropriate spaces, and the parent had signed and indicated that consent was given for the proposed evaluation.
The two Informed Notice and Consent forms were different in several ways as set forth below.
On the first Informed Notice and Consent form, someone had written in the student's grade as "6." The middle portion of the form, which describes the student's proposal for evaluation, was not completed. Finally, the parent's signature was on the form, but the "date" line next to his/her signature was not completed.
On the second Informed Notice and Consent form:
in the space for the student's grade, the number "8" was written over what appeared to be a "6," indicating that the student was in eighth grade, not sixth grade; (2) the middle portion relating to the proposal for evaluation had been completed; and (3) the date, April 23, 2007, previously not on the form, was written next to the parent's signature.
The finding in the investigative report assumes that the first Informed Notice and Consent form (which was incomplete) was prepared and signed by the parent when E.A. was in the sixth grade, and the form was copied and modified when the student was in eighth grade. Those alleged modifications included changing the student's grade and inserting a date next to the parent's signature.
Respondent testified that she may have changed the grade from "6" to "8" on the second form and did not know if she had added the date next to the parent's signature. While Respondent is not sure how the foregoing occurred or who did it, she explained that, with respect to the grade, it was possible that she wrote the "8" over the "6," because the grade had been initially entered incorrectly.17
According to the OPS report, during the March interview, Respondent advised the investigator that the file she (Respondent) was given to review was E.A.'s speech file and not
the student's ESE file. Respondent told Horne during that interview that she was "almost certain that there was another consent form."
At hearing, Respondent testified credibly that she believed that there was another consent form elsewhere.18
Based on the record, no determination can be made as to when the date next to the parent's signature was written on the Informed Notice and Consent form or who wrote that date.19
Based on the record, no determination can be made as to who or when E.A.'s grade level was changed from "6" to "8" or whether that change was made to correct an error.20
Student L.H.
The investigative report found that the Informed Notice and Consent form for L.H. was falsified by Respondent.
On the student's Informed Notice of Consent form, the date next to the parent's signature was January 25, 2008. The date of the parents' signature on that form appeared to have been changed to January 25, 2007. The investigative report found that the "8" in the year 2008 appeared to have been written over what seemed to have been a "7" in the year 2007.
No evidence was presented to establish who wrote an "8" on the form, indicating that the form was signed by the parents on January 25, 2008.
No evidence was presented as to when the parents actually signed the Informed Notice and Consent form.
The credible testimony of Respondent was that she did not change the date on the consent form and did not know who had done so.
Student B.H.
It is alleged that the ESE file of B.H. did not contain a notice of an IEP meeting and should have since the student's current IEP was to expire on February 6, 2008.
No evidence was presented to establish that Respondent directed or instructed the ESE assistant or registrar to send out notices of an IEP meeting for B.H. or that the notices were sent out.
Respondent testified that she intended to make the file compliant by sending a notice to the parents before the deadline. Despite Respondent's intentions, unless a notice had been sent out prior to February 5, 2008, and unless she took extraordinary measures, the IEP plan meeting could not be convened and no IEP was developed for B.H. on or before February 6, 2008, when the student's IEP expired.21
Student A.T.
The investigative report determined that the IEP for
A.T. dated October 4, 2007, did not include a signature page.
According to the investigative report, during the March 2008, interview with Respondent, the investigator "reviewed the concern for A.T." (no signature page for the October 2007 IEP). The investigator then advised Respondent that the School District could have lost funding, but the problem was caught in time, and an IEP meeting was held to obtain the signatures. Finally, the investigator told Respondent, "Please explain." Respondent answered by telling the investigator that she could not remember.
The investigative report makes no mention of Horne providing any file of A.T.'s to Respondent during the above- described discussion.
After the allegation related to the missing signature page was made and Respondent was placed on leave, a signature page for A.T.'s October 4, 2007, IEP, which included Respondent's signature, was found.22
Apparently, before the signature page for the October 4, 2007, IEP referenced in paragraph 189 was located and after Respondent was placed on leave, school officials completed two signature pages for that IEP. These signature pages were backdated to correct the "missing signature page" issue. Ultimate Findings
The School Board lost funding due to 15 ESE files being non-compliant with applicable statutes and regulations.
However, those non-compliant issues were the result of human errors, mistakes, omissions and oversights of those responsible for the files, including, but not limited to, Respondent.
The record is void of any evidence that the ESE files' non-compliance issues were the result of Respondent’s committing intentional acts to falsify the ESE records and/or to misrepresent the facts relative to the ESE students. Finally, there is no evidence that the errors, mistakes, and omissions attributed to Respondent resulted from her intentionally or deliberately neglecting her duties and/or refusing to adhere to the directives of supervisors and/or applicable laws, regulations, and School Board policies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
The superintendent of the School District has the authority to make recommendations for dismissal regarding school employees pursuant to Subsection 1012.27(5), Florida Statutes.
The School Board has the authority to dismiss School Board employees pursuant to Subsections 1001.42(5) and 1012.22(1)(f), Florida Statutes. Moreover, the School Board is authorized to dismiss instructional staff with professional
service contracts at any time, if such dismissal is based on "just cause." See § 1012.33(1), Fla. Stat.
Subsection 1012.33(1)(a), Florida Statutes, defines "just cause" as follows:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
The School Board, in its Policy and Procedure Procedures Manual, Section, Section 6.11, has enumerated offenses that constitute "just cause" for dismissal. Those offenses include the following: (1) misconduct in office;
willful neglect of duty; (3) violation of applicable Florida Statutes; (4) violation of the Code of Ethics of the Education Profession in Florida; (5) violation of the Principles of Professional Conduct for the Education Profession in Florida; and (6) violation of the School Board Policy and Procedure Manual.
Florida Administrative Code Rule 6B-4.009 defines the charges listed in Section 1012.33, Florida Statutes, and upon which dismissal may be based and provides in pertinent part:
6B-4.009 Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may
be pursued are set forth in Section 231.36,[23] Florida Statutes. The basis for each of such charges is hereby defined:
* * *
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule
6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
The Amended Administrative Complaint alleges that during the 2007-2008 school year, Respondent falsified IEPs which she prepared and/or oversaw, by placing in the IEPs information that was false in violation of Florida Administrative Code Rules 6B-1.006(3)(d) and (f); 6B-1.006(5)(a) and (h); and 6B-1.001(2) and (3).
The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006 and provides in relevant part the following:
(3) Obligation to the student requires that the individual:
* * *
(d) Shall not intentionally suppress or distort subject matter relevant to a student's academic program.
* * *
(f) Shall not intentionally violate or deny a student's legal rights.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information on any document in connection with professional activities.
The Code of Ethics of the Education Profession in Florida is set forth in Florida Administrative Code 6B-1.001 and provides in pertinent part:
Code of Ethics of the Education Profession in Florida.
* * *
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.
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.
The Amended Administrative Complaint also alleges that during the 2007-2008 school year, Respondent prepared and/or oversaw IEPs which contained inaccurate information, which did not apply to the student who was the subject of the IEP, and which, otherwise, did not comply with applicable and controlling laws, regulations, and policies. It is alleged that the foregoing alleged conduct by Respondent constitutes misconduct, a willful neglect of duties, and violated School Board policies relating to ESE.
The School Board, as Petitioner, has the burden of proof in this disciplinary proceeding and must meet that burden by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); and Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).
The School Board failed to meet its burden of proof in this case.
The School Board failed to establish by a preponderance of evidence that during the 2007-2008 school year, Respondent falsified IEPs which she prepared and/or oversaw by placing in the IEPs information that was false.
Having failed to prove the factual allegation in paragraph 199, the School Board has failed to prove that
Respondent: (1) intentionally suppressed history subject matter relevant to a student's academic program in violation of Florida Administrative Code Rule 6B-1.006(3)(d); (2) intentionally violated or denied a student's legal rights, in violation of Florida Administrative Code Rule 6B-1.006(3)(f); (3) failed to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B-1.006(5)(a); (4) submitted fraudulent information on any documents in connection with professional activities, in violation of Florida Administrative Code Rule 6B-1.006(h); (5) failed to strive for professional growth and seek to exercise the best professional judgment and integrity, in violation of Florida Administrative Code Rule
6B-1.001(2); and (6) failed to strive to achieve and sustain the highest degree of ethical conduct, in violation of Florida Administrative Code Rule 6B 1.001(3).
The School Board failed to establish by a preponderance of evidence that during the 2007-2008 school year, Respondent prepared and/or oversaw IEPs which contained inaccurate information which did not apply to the student who was the subject of the IEP and which otherwise did not comply with applicable and controlling laws, regulations and policies.
Having failed to prove the factual allegation in paragraph 202 by a preponderance of evidence, the School Board has failed to prove that Respondent engaged in acts which
constitute misconduct, willful neglect of her duties, and violation of School Board policies relating to ESE.
Even if it is assumed that the conduct alleged in paragraph 202 had been proven, no evidence was presented to demonstrate that the alleged conduct was "so serious as to impair [Respondent's] effectiveness in the school system." Such proof is required to establish "misconduct" within the meaning of Florida Administrative Code Rule 6B-4.009(3).
Even if it is assumed that the conduct alleged in paragraph 202 had been proven, that conduct does not constitute "willful neglect of duties" as that term is defined in Florida Administrative Code Rule 6B-4.009(4) (requiring that the alleged and established conduct be "constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given with proper authority."
The School Board failed to meet its burden of proof in this case and did not prove by a preponderance of evidence the allegations in the Amended Administrative Complaint.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Petitioner, Manatee County School Board, enter a final order:
Finding Respondent, Annette D. Dozier, not guilty of the charges alleged in the Amended Administrative Complaint; and
Reinstating Respondent with back pay and benefits.
DONE AND ENTERED this 23rd day of December, 2009, in Tallahassee, Leon County, Florida.
S
CAROLYN S. HOLIFIELD
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 23rd day of December, 2009.
ENDNOTES
1/ All statutory references are to Florida Statutes (2008), unless otherwise noted.
2/ The stipend was about $18.00 a pay period.
3/ The "binder" system was developed by Karen Ciemniecki, an ESE evaluator assigned to Haile. Ciemniecki had seen this system used at other schools to which she was assigned and believed that it would be effective at Haile. Respondent apparently agreed to use the "binder" system developed by Ciemniecki.
4/ This decision was based on Horne's opinion that the ESE department had the expertise to perform this task.
5/ The OPS report notes that files are sometimes checked out or removed by ESE teachers and/or other appropriate personnel. It
is unknown as to whether any attempt was made to determine if such personnel had checked out one or more ESE files.
6/ During the interview, Respondent was provided with either specific documents, files or parts of files related to the students about whom she was being questioned.
7/ A note indicates that the School District could not claim funds for services when student was not in the district.
Presumably, that would be from April 26, 2007.
8/ The new Haile IEP reflects that the student's grade level and home address are different from what was on the out-of-state IEP. For example, on the out-of-state IEP, the grade level was seven and the home address was an out-of-state address; on the new Haile IEP, the grade level was eight and the home address was in the School District.
9/ There is no indication that the ESE team reviewing the files checked to determine if the speech-language pathologist had E.M.'s second file.
10/ The registrar did not testify, and no evidence was presented to establish what, if any, information regarding a November 2, 2007, meeting was given to the registrar.
11/ The ESE teacher and the regular education teacher were responsible for this goal. To the extent that goal should have been changed, it appears that it would be appropriate for those teachers to take appropriate steps to accomplish that goal.
12/ This action was consistent with the directive of the school administration to make sure all the ESE files (IEPs) were input into A3.
13/ It is unclear, if, as noted above, the name of the current school automatically "pop[ped] up" when the information was being imputed into A3.
14/ It is unknown what, if any, information was given to the registrar and whether a meeting was held on January 31, 2008.
15/ Hernandez testified that under these circumstances, the LEA have signed and dated the IEP signature page after the meeting. This corrective action would require the parent's express waiver of another IEP meeting.
16/ The OPS investigative report notes that teachers and service providers with a need to use the ESE files could check out those files from the ESE office. The report also notes that persons retrieving files from the ESE office were required to sign out for those files, but they did not always do so. In those instances, there was no record of who last had the file should it turn up missing.
17/ Documents in the record show that similar changes were made by others after Respondent was placed on administrative leave. See Petitioner's Exhibit 1, pages 58, 154 and 175.
18/ Horne testified that the ESE team who reviewed the ESE files for the investigation did not always provide her with the student's complete file for the interview she conducted with Respondent. Instead, the ESE team gave her the documents about which they had questions. The investigative report does not indicate that any effort was made to locate the student's regular ESE file and determine if there was another Informed Notice and Consent form.
19/ There is no evidence that any attempts were made to contact the parent to determine if she wrote in the date on the form and, if so, when he/she did so.
20/ Respondent's Exhibit 1, page 5, shows that on the Report of Conference form dated January 10, 2007, the grade level of E.A. was written over to indicate that the student was in seventh grade.
21/ In this instance, the ESE specialists contacted B.H.'s legal guardian who elected to waive the ten-day notice of the meeting and an emergency meeting was then conducted by telephone.
22/ It is noted that the signature page did not have an LEA signature, therefore, corrective action was required.
23/ Currently Section 1012.33, Florida Statutes (2009).
COPIES FURNISHED:
Dr. Eric Smith Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Tim McGonegal, Superintendent Manatee County School Board
215 Manatee Avenue West Bradenton, Florida 34206-9069
Thomas Martin Gonzalez, Esquire Christopher Bentley, Esquire Thompson, Sizemore, Gonzalez
and Hearing, P.A.
201 North Franklin Street, Suite 1600 Tampa, Florida 33602
Robert J. Shapiro, Esquire Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069
Melissa C. Mihok, Esquire Kelly & McKee, P.A.
1718 East Seventh Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 02, 2010 | Agency Final Order | |
| Dec. 23, 2009 | Recommended Order | Petitioner did not have just cause to terminate teacher's employment where the evidence failed to establish that she falsified ESE records or willfully neglected her duties regarding those records. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ADAM SOUILLIARD, 08-003880TTS (2008)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs SAMUEL PARRONDO, 08-003880TTS (2008)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs RELLEN HOUSTON CLARK, 08-003880TTS (2008)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs COLLEEN QUINN, 08-003880TTS (2008)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs ELIZABETH FELIX, 08-003880TTS (2008)
