STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 10-4143
)
DEBORAH SWIRSKY-NUNEZ, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted by video teleconference at sites in Tallahassee and Miami, Florida, on May 2, 3, 4, 5, 6, August 2, 3, 4, 5, 15, 16,
17, 18, 19, and September 6, 2011, before Administrative Law Judge Edward T. Bauer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Christopher J. La Piano, Esquire
Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Maria del Carmen Calzon, Esquire
1825 Ponce de Leon Boulevard, #249 Coral Gables, Florida 33134
STATEMENT OF THE ISSUE
Whether Respondent committed the acts alleged in the Amended Notice of Specific Charges and, if so, the discipline, that should be imposed against Respondent's employment.
PRELIMINARY STATEMENT
At its regularly scheduled meeting on June 16, 2010, Petitioner School Board of Miami-Dade County ("Petitioner" or "School Board") voted to suspend Respondent Deborah Swirsky- Nunez without pay and to initiate proceedings to terminate her employment as an Instructional Supervisor of Exceptional Student Education.
Respondent timely requested a formal administrative hearing to contest Petitioner's action, and, on June 28, 2010, the matter was referred to the Division of Administrative Hearings for further proceedings. Thereafter, on July 16, 2010, Petitioner filed its Notice of Specific Charges, wherein it alleged, in relevant part that:
Respondent used her position as a School Board employee to manipulate the [McKay Scholarships for Students with Disabilities Program] in an attempt to fraudulently obtain funds from the State of Florida for her daughter, S.N. The funds were to be used to pay for S.N.'s tuition to a prestigious private high school, American Heritage School.
Subsequently, on July 30, 2010, Petitioner filed an Amended Notice of Specific Charges, which included an additional
allegation that Respondent engaged in a similar fraudulent scheme to obtain McKay scholarship funds for her son, J.N.
Based upon this alleged misconduct, Petitioner charged Respondent with misconduct in office (Count I), immorality (Count II), violation of responsibilities and duties (Count III), violation of the School Board's Code of Ethics (Count IV), and conflict of interest (Count V).
During the final hearing, Petitioner called the following witnesses: Jesse Bernstein, Judith Fain, Will Gordillo, Cheryl Daniels Farmer, Lawrence Davidson, Grace Lopez, Dr. Yolanda Sklar, Dr. Richard Rosen, Dr. Garnett Reynolds, Dr. Sue Buslinger-Clifford, Edna Waxman, Samantha Levine, Cecelia Dehlin, Joanna Richter, Pamela London, Rene Mantilla, Dr. Daniel Tosado, Curtis Ivy, Jewell Perlman, David Ferrer, Maria Hernandez, Freddie Woodson, Karen Stearns, Carol Risk, Nancy Webb, Dr. Kim Rubin, Michelle Weiner, and Dr. Ana Rasco.
Petitioner's Exhibits 1 through 15, 19, 20, and 23 through 35 were admitted in their entirety. In addition, portions of Petitioner's Exhibits 16, 17, and 18 were admitted.1/ Although Respondent did not testify, she presented the testimony of 13 witnesses: Richard Vidal, J.N., Dr. Laurie Karpf, Udyss Romano, Teresita Monteagudo, George Nunez, Will Gordillo, Susan Perless, Juan Ugalde, S.N., Mark Zaher, Laura Wilson, Dr. Frank Norwitch, and Curtis Ivy. Respondent's Exhibits 5, 6, 9, 11, 18, 20, 21,
22, 23, 24, 27, 28, 31, 44, 64, 67, 69, 70, 102, 103, 104, 114,
120, 121, 146, 233, 246, 280, 294, 320, 326, 331, 332, 333, 335,
and 336 were received into evidence in their entirety. Respondent also introduced portions of exhibits 113, 138, 163,
172, 253, 274, 290, and 325.2/
The final hearing transcript was filed on March 19, 2012. On March 27, 2012, Petitioner requested, and the parties were granted, an extension of time to file proposed recommended orders. Subsequently, on April 12, 2012, Respondent filed a motion requesting an extension of the proposed recommended order deadline to April 23, 2012, which was likewise granted. Both parties timely filed proposed recommended orders, which the undersigned has considered.3/
Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.
FINDINGS OF FACT
The Parties / Introduction
Petitioner is the entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida.
Respondent began her employment with the Miami-Dade County School District ("School District") on or about
October 14, 1986. Starting in 2004 and at all times relevant to
this proceeding, Respondent served as the School Board's Instructional Supervisor of Exceptional Student Education for Region II.
The duties associated with Respondent's position are enumerated in a written job description, and include: (1) recommending policies for the development and improvement of educational and support services for students with specific learning disabilities; (2) analyzing and monitoring programs for compliance with local, state, and federal requirements; and (3) monitoring ESE programs in a variety of areas, such as gifted, physically impaired, and specific learning disabilities. The written job description also contains examples of Respondent's duties, and reads, in relevant part:
EXAMPLE[S] OF DUTIES
Responsible for the development, implementation and monitoring of the ESE program for students with disabilities.
Provides technical assistance to the Regional Center and school sites regarding programs for students with disabilities. Compiles and analyzes [full-time equivalent] data to assist with this task and with the distribution of program sites for students with disabilities.
Supervises, develops, and implements procedures for ensuring that information relevant to policy and compliance of local, federal, and state legislation/mandates on the education of students with disabilities is disseminated to school site district personnel.
Develops and facilitates evaluations and audits of programs for students with disabilities. Attends individual education plan (IEP) team meetings, as needed, at region and district levels.
Ensures compliance with the Individuals with Disabilities Education ACT (IDEA) and monitors compliance of programs for students with disabilities.
Coordinates training for school personnel of the Student Progression Plain and Special Programs and Procedures for Exceptional Students with regards to grading, retention, promotion, graduation and programmatic needs of student in programs for students with disabilities.
* * *
Assists in monitoring activities, budgets, project expenditures and personnel for federal and state projects relating to students with disabilities.
Collects student performance data for students with disabilities and assists personnel with the selection of supplementary research-based curriculum targeting student achievement.
Although Petitioner concedes that Respondent has performed her assigned duties adequately, it contends that Respondent misused her position in order to obtain (or attempt to obtain) McKay Scholarship funds for her two children, S.N. and J.N. For the sake of clarity, the undersigned will begin with a description of the McKay Scholarship process, followed by separate discussions of the facts surrounding S.N. and J.N.
The McKay Scholarship Program
The John M. McKay Scholarships for Students with Disabilities Program, codified in section 1002.39, Florida Statutes, provides eligible disabled students——i.e., students for whom an individual education plan ("IEP") or accommodation plan has been written——with scholarships to attend a private school of choice, or, at the preference of the parent, a public school other than the one to which the student is assigned.
In order for a disabled student to qualify for a McKay Scholarship for an upcoming school year, section 1002.39 requires, in pertinent part, that the student have spent "the prior school year in attendance at a Florida public school."
§ 1002.39(2)(a)2., Fla. Stat. Relevant to the instant proceeding, a student is considered to have attended a public school during the "prior school year" if the student was enrolled and reported by a school district "for funding during the preceding October and February Florida Education Program surveys" (the October and February "FTE survey weeks"). Id.
To initiate participation in the McKay program, a parent must file an "intent to participate" with the Florida Department of Education (which is generally accomplished online at www.floridaschoolchoice.org) at least 60 days prior to the date of the first scholarship payment and while the disabled child is still attending public school. § 1002.39(9)(b), Fla.
Stat. A parent who files an intent to participate online is required to input the student's name, date of birth, and other background information.
Upon receipt of an intent to participate, the school district will verify that the student has an IEP in place and that the attendance requirements were satisfied——i.e., the student was enrolled in public school during the October and February survey weeks. In addition, within 30 days of receiving notification of the parent's intent, the school district must transmit the student's matrix level (a numerical score ranging from 251 to 255 that indicates the level of services necessitated by the student's disability) to the Department of Education.
The Department of Education, within ten days of receipt of the student's matrix level, must inform the applicable private school of the amount of the scholarship.
§ 1002.39(5)(b)1.c., Fla. Stat. The amount of the scholarship is determined primarily by the matrix level (and to a lesser extent by the grade and geographic geographic location of the student), with a higher matrix score entitling the student to greater funding.
Should a McKay scholarship student ultimately enroll in a private school, the Department of Education will provide documentation to the State's Chief Financial Officer, who will
disburse the scholarship funds in four equal installments during the months of September, November, February, and April.
§ 1012.39(10)(e), Fla. Stat. The warrants, which are made payable to the parent, are sent directly to the private school. Thereafter, the parent is required to restrictively endorse the warrants to the private school for deposit by the school. Id.
Events Concerning S.N.
Private Schooling and Testing for ESE
On or about July 23, 2004, Respondent and her husband enrolled their daughter, S.N.——who was about to begin sixth grade——at the American Heritage Academy ("American Heritage"), a private school located in Plantation, Florida. Thereafter, S.N. remained continuously enrolled at American Heritage until September 2009.
On the initial enrollment contract, as well as each of the re-enrollment contracts executed in 2005, 2006, 2007, 2008, and 2009, S.N.'s current address was listed as "1854 Northwest
107 Terrace, Plantation, Florida."
Although S.N. neither required nor received ESE services from the 2004-2005 through the 2007-2008 school years, Respondent began to take steps——starting in the spring of 2008——to have S.N.'s eligibility for such services evaluated through the Miami-Dade County School District.
Specifically, in or around April 2008, Respondent requested that Dr. Garnett Reynolds, a speech and language expert employed with the School District and supervised by Respondent, perform a speech and language evaluation of S.N. Dr. Reynolds agreed and conducted the evaluation (which must be performed before a student can tested for ESE eligibility) the same month, which resulted in normal findings.
Subsequently, during August 2008, Respondent approached Dr. Yolanda Sklar, a school psychologist assigned to Region II, where Respondent's office is located, and asked her to perform a psychological evaluation of S.N. Significantly, Respondent led Dr. Sklar to believe that: S.N. would be continuing her enrollment in private school; and that the evaluation would not be used for public school purposes——a falsehood, as revealed shortly. Dr. Sklar, who was surprised by the request, reluctantly agreed because she thought it possible that a lack of cooperation could adversely affect4/ her future performance evaluations.5/
The psychological evaluation of S.N., which Dr. Sklar performed at the North Regional Center at Respondent's direction, was completed on August 22, 2008. Due to Respondent's representation that the evaluation was not for public school purposes, Dr. Sklar employed a more "clinical model" than she otherwise would have.
After examining the results of S.N.'s tests, Dr. Sklar determined that although no serious behavioral issues existed,
S.N. suffered from a specific learning disability in processing speed.
S.N.'s Enrollment at Krop
On October 15, 2008, while S.N. was still enrolled at American Heritage, Respondent registered S.N. at Dr. Michael M. Krop High School ("Krop"), a school located in Region II (the region to which Respondent was assigned) of the Miami-Dade School District and where Respondent's husband previously served as principal. On that date, which was during the FTE survey period, Respondent appeared at the office of Krop's registrar, Grace Lopez, and announced that she wished to enroll S.N. immediately. Respondent further informed Ms. Lopez that Krop's principal at that time, Matthew Welker, approved of S.N.'s registration.
During the registration process, Respondent represented, and Ms. Lopez accepted, "3530 Mystic Pointe Drive, Unit 3009, Miami, Florida," as S.N.'s current address——a location zoned for Krop,6/ in contrast to the Northwest 107 Terrace address in Plantation, which had been provided to American Heritage as S.N.'s residence from 2004 through 2008. Although Ms. Lopez ordinarily conducts address verifications for new students, Ms. Lopez did not do so in connection with S.N.'s
address because she confirmed that the principal had authorized the registration.
Had Ms. Lopez performed such a verification, she would have discovered no connection between S.N. or her parents with the Mystic Pointe Drive address. Indeed, the evidence adduced during the final hearing in this matter demonstrates that at no time has S.N. ever resided at 3530 Mystic Pointe Drive, Unit 3009, or any other unit at 3530 Mystic Pointe Drive. Further, there is no credible evidence that Respondent expected to relocate to Mystic Pointe Drive at some time in the future.
Creation of IEP and Related Records
On October 15, 2008, the first day of S.N.'s enrollment at Krop, a staffing was held to determine her eligibility for special education services under the Individuals with Disabilities Education Act ("IDEA"). At that time, approximately 49 other students in the school district's Region II——one of whom attended Krop——were waiting to be staffed.
As a result of the staffing, which was conducted by Lisa Parker, an ESE placement specialist employed with the school district and a close personal friend of Respondent's, a determination was made that S.N. was eligible to receive ESE services under the IDEA. On the same day, October 15, 2008, Ms. Parker held an individual education plan ("IEP") meeting, during which an IEP (a written document that memorializes the
student's educational programs, goals, and necessary services) and a "matrix of services" (a document utilized by the State of Florida for funding purposes that contains the student's matrix score) were drafted for S.N.
Although Ms. Parker was not called as a witness during the final hearing, testimony was elicited from two of the IEP participants: Dr. Richard Rosen, a school psychologist; and Lawrence Davidson, a music and drama teacher at Krop.
Mr. Davidson, who had never observed S.N. in a general education setting, provided no input whatsoever during the development of the October 15, 2008, IEP. Instead, and notwithstanding his status as the "regular education teacher" involved in the process, Mr. Davidson merely read the document at the request of Ms. Elissa Rubinowitz, the ESE specialist assigned to Krop, and signed it based upon his belief that the accommodations enumerated in the IEP could be implemented in a general education setting.
The other IEP participant who testified during the final hearing, Dr. Richard Rosen, first learned of S.N.'s IEP on October 15, 2008, while picking up files at the Region II office. At that time, Respondent asked Dr. Rosen——who was assigned to several schools in Region II other than
Krop——to come into her office and read the psychological report prepared by Dr. Sklar. Dr. Rosen agreed, and proceeded to
review, in a cursory fashion, certain portions of Dr. Sklar's report (the test results in particular) in the presence of Respondent and Ms. Parker, the only other persons in the room. Ultimately, Dr. Rosen signed the IEP and concluded, based upon his incomplete review of Dr. Sklar's report, that S.N. possessed academic and information processing deficits. Dr. Rosen's overall participation in the IEP's creation lasted approximately five to fifteen minutes.
As demonstrated during the final hearing, the creation of S.N.'s IEP was accompanied by a number of procedural deficiencies of which Respondent, in light of her expertise in the field of exceptional student education, must have been aware. First, interventions should have been attempted in S.N.'s general education classes prior to a decision being made regarding S.N.'s eligibility for ESE services and the formulation of an IEP. Further, even assuming that it was not premature to make an eligibility determination (and create an IEP) for S.N. in October 2008, the normal procedure contemplated that the staffing and IEP meeting be held on a date when the school psychologist assigned to Krop, Dr. Mark Finkelstein, was present on campus. In addition, Dr. Sklar, the school district psychologist who conducted the testing of S.N., was not invited to participate in the process and was therefore unaware of the October 15, 2008, staffing and IEP meeting. Finally, the
undersigned accepts the final hearing testimony of Dr. Sue Buslinger-Clifford, a school district instructional supervisor for psychological services with considerable experience, who recounted that she has never witnessed——for any student——the successful development of an IEP in as short a period as S.N.'s was created.
As with the process that led to its creation, the substance of the IEP suffered from a variety of deficiencies. First, Dr. Buslinger-Clifford, who was accepted as an expert in the field of ESE referral and assessment, credibly testified that pursuant to state standards, Dr. Sklar's psychological report did not establish S.N.'s need for ESE services. In particular, Dr. Sklar's test results did not reveal the required disparity of at least 1.5 standard deviations between S.N.'s ability and achievement.7/ As an additional deficiency, Dr. Edna Waxman, a school district instructional supervisor for special education compliance whom the undersigned accepted as an expert in her field, credibly testified that "daily" specialized instruction in English and math was unwarranted. Finally, the IEP failed to specify the duration in which the supplementary aids and related services——i.e., collaboration, consultations, and therapy——would be provided to S.N.
The matrix of services for S.N., which Ms. Lisa Parker prepared on the same day as the IEP, also failed to comply with
state standards. In particular, "Domain A" of the matrix, which describes the level of modifications to the curriculum and learning environment needed by the student, was scored for S.N. as "level four"——the second highest level, which contemplates "different curriculum and/or extensive modification to [the] learning environment"——based upon Ms. Parker's determination that S.N. required assistance for the "majority of learning activities." Such a scorning was flawed, as the "Matrix of Services Handbook" and Dr. Waxman's credible testimony demonstrate that for a student's Domain A to be scored at level four based upon the need for assistance for the "majority of learning activities," evidence must be present that the student requires a special class setting or assistance within a general education class for more than 50 percent of the school day. No such evidence was documented in S.N.'s IEP.8/
Withdrawal from Krop, Subsequent Reenrollment, and Modifications to ESE Documents
As detailed above, S.N.'s matrix of services and IEP were completed on October 15, 2008, S.N.'s first day of enrollment at Krop. A mere eight days later, on October 23, 2008, Respondent withdrew S.N. from Krop.
During her brief period of enrollment, S.N. was present at Krop on four days: October 16, 17, 21, and 23; and absent on two occasions: October 20 and 22. Although S.N.
remained on Krop's campus on the days she was present for school, she rarely attended classes and instead chose, by her own admission, to frequent the cafeteria during all three lunch periods. Indeed, Mr. Davidson, the drama instructor who signed S.N.'s IEP as the "regular education teacher," does not recall
S.N. being present for his class on any occasion during October
2008.
On or about October 24, 2008, S.N. resumed classes at
American Heritage, where she remained continuously enrolled during her brief stint at Krop. The registrar of American Heritage, Cecelia Dehlin, testified credibly that she was unaware of S.N.'s period of enrollment at Krop during October 2008, and that such dual registration is not knowingly permitted by her institution——i.e., American Heritage would have required
S.N. to withdraw upon her enrollment at Krop.
Subsequently, on February 5, 2009, while S.N. was still enrolled at American Heritage and just four days before the start of the FTE survey week, Respondent once again registered S.N at Krop.9/
On the very next school day, February 9, 2009,
Ms. Parker revised S.N.'s IEP. Mr. Davidson, the only person involved in the process who testified during the final hearing, signed S.N.'s new IEP at the request of Krop's ESE specialist, Ms. Rubinowitz.
In addition to the revised IEP, Ms. Parker created a new matrix of services for S.N. As with the previous matrix drafted in October 2008, the new matrix improperly scored S.N. at "level four" with respect to Domain A (curriculum and learning environment).
In addition, Domain B, which measures the level of services necessary to address a student's social and/or emotional behavior, was scored at level four——one level greater than S.N.'s October 2008 matrix. This was improper, as
Dr. Sklar testified credibly that the information contained in S.N.'s IEP did not indicate a need for "daily counseling or specific instruction on social or emotional behavior," the purported basis for Ms. Parker's level four scoring.
Based upon the increase in S.N.'s Domain B from level three to level four, the overall matrix score increased from 252 to 253. Significantly, such an increase would entitle a McKay scholarship participant to a greater level of funding.
During S.N.'s enrollment at Krop during February 2009,
S.N. was present on February 9, 10, 11, 12, and 13——the five school days that constituted the FTE survey week——and absent on February 17, 18, and 19, three days in which S.N. was marked present at American Heritage.
Events of February 20, 2009
As discussed previously, it is necessary for a parent, as part of the McKay scholarship process, to file an intent to participate in the program prior to the student's withdrawal from public school.
On the morning of February 20, 2009, Ms. Rubinowitz, Krop's ESE specialist, appeared in the office of Krop's registrar and asked that S.N. be withdrawn. The registrar, Ms. Lopez, advised Ms. Rubinowitz that in the absence of a personal request from one of S.N.'s parents, no change in the child's registration status would be made.
Later that morning, Ms. Rubinowitz again requested that Ms. Lopez withdraw S.N. from Krop. On this occasion, however, Ms. Rubinowitz stated that she was attempting to expedite the withdrawal of S.N. on Respondent's behalf and that Respondent was on her way to the school. Ms. Lopez acceded to the request and made the necessary changes in the school district computer system to withdraw S.N. from Krop.
A short time later, Respondent arrived at Krop and insisted that S.N. be reenrolled immediately. As school registrars within the district are prohibited from making more than one enrollment change during a single day for a particular student, it was necessary for Ms. Lopez to telephone the
district's attendance services office to complete S.N.'s re- registration.
Roughly one hour later, Respondent once again appeared at Ms. Lopez' office and directed, in a sudden and unusual twist, that S.N. be withdrawn. Ms. Lopez thereafter contacted the district's attendance office and carried out Respondent's request.
At approximately 12:30 p.m. on February 20, 2009, the same date S.N. was withdrawn from Krop, re-enrolled, and withdrawn for a final time, Respondent went online to flordashoolchoice.org and filed an intent for S.N. to participate in the McKay scholarship program.10/
Petitioner contends, and the undersigned agrees, that the only logical explanation for the unusual events of
February 20, 2009, is that Ms. Rubinowitz withdrew S.N. prior to Respondent's submission of the online intent, which necessitated S.N.'s brief re-enrollment so that Respondent could file the intent in accordance with the McKay guidelines——i.e., before S.N.'s withdrawal from public school. These events, along with the fact that S.N. was not withdrawn from American Heritage until September 2009, confirm that S.N.'s enrollment at Krop was precipitated entirely by Respondent's desire to obtain a McKay Scholarship for her child, and not, as S.N.'s testimony
suggests, by supposed misbehavior on S.N.'s part at American Heritage.
Other Events / Investigation
In or around April 2009, Ms. Karen Stearns, an employee of American Heritage whose duties include the oversight of McKay scholarships for eligible students, learned of Respondent's intent for S.N. to receive McKay Scholarship funds for the upcoming 2009-2010 school year. This confused
Ms. Stearns, as she could not understand how S.N.——who, to the best of her knowledge, had not attended public school at any point during 2008 and 2009——could meet the McKay program's attendance requirements. Ms. Stearns raised these concerns with Respondent, who stated untruthfully that S.N. qualified for a McKay scholarship due to possible litigation against the school district for failing to provide S.N. with proper accommodations.
Unsatisfied with Respondent's explanation, Ms. Stearns contacted an employee with the Florida Department of Education's office of individual education and parental choice and inquired about S.N.'s eligibility. In turn, the Department of Education contacted Ms. Judith Fain, who is employed in the division of special education with the Miami-Dade County School District.
Using her computer, Ms. Fain looked up S.N. in the school district's Integrated Student Information System ("ISIS"). From the entries in ISIS, Ms. Fain confirmed that the
prerequisites for McKay eligibility appeared to be satisfied:
an IEP for S.N. had been completed and S.N. had been enrolled in public school during the October 2008 and February 2009 FTE survey weeks.
Based upon the information provided by Ms. Fain in May 2009, the Department of Education notified American Heritage that S.N. was eligible to receive a McKay scholarship.
Subsequently, on June 5, 2009, the school district received an anonymous complaint from an individual using the alias "Lincoln Brower." The complaint, which was sent by e- mail, alleged that S.N. did not meet the eligibility requirements for the McKay program and that Respondent had misused her position to commit fraud.
On or around the date the anonymous complaint was submitted (but prior to Respondent learning of the allegations), Respondent contacted Ms. Dehlin at American Heritage and requested that S.N.'s outstanding tuition balance for the upcoming school year be reduced pursuant to the McKay scholarship. Ms. Dehlin complied, and modified Respondent's payment plan to reduce the tuition by $11,307, the McKay funding amount that American Heritage anticipated it would receive from the State of Florida during the 2009-2010 school year.
Almost immediately thereafter, Respondent engaged in a pattern of behavior that is entirely consistent with——and has
been interpreted as——an attempt to conceal wrongdoing on her part. First, on June 10, 2009, Respondent came to the American Heritage campus and directed Ms. Stearns to terminate S.N.'s participation in the McKay program, destroy the school's copy of S.N.'s IEP, and dispose of the McKay Scholarship Program affidavit that had been executed less than a week earlier.
Although Ms. Stearns removed S.N. from the McKay program on the date of Respondent's request, Ms. Stearns retained possession of S.N.'s IEP and the McKay affidavit.
Subsequently, on June 16, 2009, Respondent contacted Ms. Stearns to confirm that S.N. had been withdrawn from the McKay program. Ms. Sterns advised that S.N. had been withdrawn as Respondent requested. A few days later, Respondent called Ms. Stearns yet again and asked if S.N.'s McKay documents had been destroyed. Ms. Sterns admitted that the documents had not been destroyed pursuant to the instructions of Mr. Laurie (one of the school's administrators), at which point the call ended. Several minutes later, however, Respondent appeared at American Heritage and asked to speak with Mr. Laurie concerning the records.
During the approximate period of time that Respondent withdrew S.N. from participation in the McKay program,
Dr. Daniel Tosado (an assistant superintendent with the school district) and Mr. Freddie Woodson (the district's deputy
superintendent for school operations) determined that an investigation should be initiated regarding the allegations raised in the anonymous complaint. To that end, Mr. Woodson forwarded the complaint to the school district's Office of the Inspector General ("OIG") and decided, after a discussion with Mr. Tosado, that S.N.'s cumulative file should be retrieved.11/
Contents of S.N.'s Cumulative File
During the final hearing in this matter, a copy of S.N.'s cumulative file was received in evidence, the contents of which included: a Krop student enrollment form; Dr. Sklar's evaluation; the October 15, 2008, IEP and matrix of services; the February 9, 2009, IEP and matrix of services; a "notification of meeting," dated October 15, 2008, which listed Dr. Sklar as an invitee; a "notification of meeting" to review S.N.'s accommodations, dated February 9, 2009; a document titled, "Secondary CST Request for Evaluation (Documentation of Screening and Prereferral Activities," dated October 9, 2008; a speech and language evaluation report, dated October 15, 2008, which listed Dr. Garnett Reynolds as the examiner; and an observation form regarding S.N., dated October 2008, purportedly drafted by a math instructor named "Levine."
As demonstrated through the credible testimony of various witnesses, at least four of the documents included in S.N.'s cumulative file are fraudulent in one or more respects.
First, Dr. Sklar testified that she had no involvement with the October 9, 2008, "Secondary CST Request for Evaluation," and that her signature was forged on the document. Dr. Sklar further testified that contrary to the face of the October 15, 2008, "notification of meeting," she was not invited (and had no knowledge of) S.N.'s October IEP meeting.
In addition, the undersigned accepts Dr. Reynolds' testimony that she did not draft or have any involvement with the October 15, 2008, speech and language evaluation report that bears her name as the "preparer." As detailed previously,
Dr. Reynolds prepared a speech and language report for S.N. in April 2008, a copy of which is not contained in S.N.'s cumulative file.
Finally, Ms. Samantha Levine, S.N.'s math teacher at American Heritage during 2008-2009, testified credibly that although she filled out an observation form for S.N. during 2008, the document contained in S.N.'s cumulative file that bears her name and "signature" as the observer is not genuine and overstates the severity of S.N.'s academic difficulties. In particular, the inauthentic observation form contained in S.N.'s cumulative folder indicates falsely that S.N. was "excessively" (the most severe rating of the five options pre-printed on the form, which range from "never" to "excessively") distractible, prone to daydreaming, reluctant to speak in group situations,
and self-conscious. Further, and most significant, "Section X" of the fraudulent observation form contains a notation that a "significant disparity" exists between S.N.'s ability and achievement, which was neither observed by Ms. Levine nor marked on the observation form she actually completed.
In its Proposed Recommended Order, Petitioner asserts, as it has throughout this proceeding, that the fraudulent items described above were created by Respondent or by another individual at Respondent's behest. Respondent, on the other hand, contends that that one or more unknown persons placed the inauthentic documents in the cumulative file in an attempt to "frame" her and bring her family into disgrace.
Although there is no direct proof of Respondent's involvement, there is sufficient circumstantial evidence to demonstrate, by a preponderance of the evidence, that the documents were created at Respondent's direction or by Respondent herself. First, there is no doubt that Respondent was highly motivated——at least until June 2009, after the anonymous complaint was filed——to secure the approval of a McKay scholarship for S.N. Respondent was so motivated, in fact, that she was willing to lie to fellow school district employees to facilitate the process: Respondent provided a phony address to Krop's registrar to secure the registration of S.N. (which led to the creation of an IEP, a McKay program prerequisite, in
record-setting time and with 49 other children waiting to be staffed) and falsely stated to Dr. Sklar that any evaluation of
S.N. would be used only by American Heritage. Months later, when questioned about S.N.'s eligibility for the McKay scholarship by American Heritage's registrar, Respondent untruthfully stated that S.N. satisfied the attendance criteria as a result of litigation against the school district. Respondent is further incriminated by her repeated requests, after the submission of the anonymous complaint, to American Heritage's registrar to destroy the IEP and McKay affidavit, as well as her subsequent (and sudden) appearance at American Heritage upon learning that the items were still in the school's possession. Finally, the undersigned finds it significant that the fraudulent observation form bears the surname of one of S.N.'s teachers at American Heritage——a detail not likely at the ready disposal of individuals within the Miami-Dade County School District who may wish to harm Respondent.12/
Even assuming, arguendo, the evidence detailed above is insufficient by itself to establish Respondent's involvement in the creation of the fraudulent documents, Respondent's refusal during this proceeding to testify (or answer discovery requests) permits the undersigned to draw an adverse inference13/ against her. The circumstantial evidence, enhanced by the adverse inference, is more than sufficient to demonstrate
Respondent's culpability in the creation of the inauthentic records.
Events Concerning J.N.
J.N.'s Disability / School Enrollment
It is undisputed that Respondent's son, J.N., suffers from a birth defect that impairs the use of his right wrist. Consequently, J.N., who is right handed, finds it more difficult than most other students to write neatly during long assignments and "bubble in" Scantron forms.
Beginning in the fall of 2002 through the completion of fifth grade in the summer of 2008, J.N. continuously attended Central Park Elementary School in the Broward County School District. From kindergarten through fourth grade, J.N. received neither ESE nor gifted services.
During the summer of 2007, several months before J.N. was to begin fifth grade, Respondent contacted Dr. Kim Rubin, the principal of Virginia A. Boone Highland Oaks Elementary ("Highland Oaks") in the Miami-Dade County School District. During the conversation, Respondent advised Dr. Rubin that although J.N. would continue to attend school at Central Park Elementary in Broward County, she wished to temporarily enroll
J.N. at Highland Oaks so he could be tested for gifted services——which, according to Respondent, could be accomplished more quickly in Miami-Dade County. Respondent also stated that
J.N. needed an identification number in order for him to be evaluated for gifted eligibility by a Miami-Dade School District employee. Although Dr. Rubin was aware that the registration of
J.N. would run afoul of school district protocol, she decided to permit the registration in order to preserve a "collegial relationship" with Respondent.
Significantly, at no time did Respondent mention to Dr. Rubin that she also intended for J.N. to be tested for ESE services. Indeed, Dr. Rubin testified credibly that had she known Respondent planned to have an IEP created for J.N. related to a disability, she would have never authorized the creation of a student identification number. This is because, as Dr. Rubin explained, a student with a disability entitles the school where the child attends to a greater FTE funds disbursement, which carries significant financial implications for the school district.
On or about June 21, 2007, J.N. was enrolled at Highland Oaks pursuant to Dr. Rubin's authorization. During the registration, Respondent provided the registrar with "3530 Mystic Pointe Drive Apartment 3009, Miami," as J.N.'s address. As noted previously, however, no connection existed between that address and Respondent's family. Indeed, J.N. admitted during his final hearing testimony that he has never resided at any location in Miami.
Creation of IEP / McKay Scholarship Participation / Cumulative File Discrepancies
On June 25, 2007, an IEP for J.N. was prepared by one or more Miami-Dade County school district employees, which reads, in relevant part, that he had been determined eligible for the "Other Health Impaired, Specific Learning Disabled, [and] Gifted" programs.
On August 7, 2007, J.D. was withdrawn from Highland Oaks——where he never actually attended——and, shortly thereafter, began fifth grade at Central Park in Broward County.
During J.N.'s fifth grade year, Central Park was provided with a copy of the Dade County IEP dated June 25, 2007. Ultimately, one or more employees of Central Park adopted the IEP and transposed the information contained therein onto Broward County forms.
In early 2008, Respondent applied for, and was granted, a McKay Scholarship for J.N. in the amount of $7791. Those funds——a byproduct of the IEP developed in Miami-Dade—— were subsequently applied toward J.N.'s tuition at American Heritage Academy, where he attended school during the 2008-2009 academic year.
As discussed previously, an investigation of Respondent ensued during June 2009 following the Miami-Dade County School District's receipt of the anonymous complaint.
Pursuant to the investigation, Mr. David Ferrer, a school district employee who serves as a liaison to the court system, picked up J.N.'s cumulative file at Highland Oaks on September 1, 2009. Mr. Ferrer provided J.N.'s file to Ms. Maria Hernandez, an administrator who serves as the custodian of records at the district level. Ms. Hernandez testified credibly that she promptly locked J.N.'s cumulative folder in a location to which only she had access and that the file has remained undisturbed since that time.
During the final hearing in this matter, the contents of J.N.'s cumulative file in Ms. Hernandez's custody were received in evidence. As with S.N.'s folder, several documents contained in J.N.'s file are fraudulent: an "observation of student behaviors" form, dated May 30, 2007, which bears the name "Webb" as the observer; and the June 25, 2007, IEP.
With respect to the "observation of student behaviors" document, Ms. Nancy Webb, J.N.'s fourth grade teacher at Central Park during the 2006-2007 school year and the only faculty member with the surname "Webb", credibly testified that the form is not genuine and that she never filled out an observation document in connection with J.N. Further, the undersigned accepts Ms. Webb's testimony that J.N.'s true level of academic performance in mathematics is understated in the document——i.e.,
the inauthentic observation form reflects that J.N. was on grade level, when in fact he was above grade level.
Turning to the June 25, 2007, IEP, only one Miami-Dade school district employee whose name appears on the document was called as a witness in this matter: Ms. Michelle Weiner, a curriculum supervisor. Ms. Weiner credibly testified that during the summer of 2007, she signed a document——possibly J.N.'s IEP——at Respondent's request, but did not look at what she was signing based on her faith in Respondent's professionalism. However, as Ms. Weiner was out of town on
June 25, 2007, she further testified that her "signature" on the document might have been forged. Either way, Ms. Weiner was not present for the IEP meeting and had no input whatsoever during the process; as such, her name should not appear on the document as a participant.
Although there is insufficient proof that Ms. Weiner's signature was forged on J.N.'s IEP, sufficient circumstantial evidence exists——e.g., Respondent's lie to Dr. Rubin about the purpose of J.N.'s registration at her school and Respondent's provision of a false address to the registrar——that the bogus observation form (bearing the name of a Broward County teacher of J.N.'s, a detail Miami-Dade employees would have no reason to know) was either drafted by Respondent or by another individual at her behest.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Basis for Discipline / Burden of Proof
As Respondent is a member of Petitioner's supervisory staff, her employment contract can be terminated only for the reasons enumerated in section 1012.33(6)(b), Florida Statutes, which provides:
Any member of the district administrative or supervisory staff . . . may be suspended or dismissed at any time during the term of the contract; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or being convicted or found guilty of, or entering a plea of guilty, regardless of adjudication of guilt, any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education.
In order to terminate Respondent's employment, as Petitioner seeks to do in this proceeding, Petitioner must demonstrate by a preponderance of the evidence that Respondent committed the violations as alleged in the Amended Notice of Specific Charges. McNeill v. Pinellas Cnty. Sch. Bd., 678 So.
2d 476, 477 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990).
The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see
also Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir. 2005)(holding trial court properly defined the preponderance of the evidence standard as "such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true").
Misconduct in Office (Count I)
The undersigned will begin with Petitioner's contention that Respondent committed "misconduct in office," which is defined by the State Board of Education as a:
[V]iolation 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.
Fla. Admin. Code R. 6B-4.009(3).
In turn, the Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-
and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B-1.006), provide in pertinent part as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida
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.
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.
* * *
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
* * *
Obligation to the public requires that the individual:
* * *
Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
Shall not use institutional privileges for personal gain or advantage.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(emphasis added).
"As shown by a careful reading of rule 6B-4.009, the offense of misconduct in office consists of three elements:
(1) A serious violation of a specific rule that (2) causes (3) an impairment of the employee's effectiveness in the school system." Miami-Dade Cnty. Sch. Bd. v. Regueira, Case No. 06- 4752, 2007 Fla. Div. Adm. Hear. LEXIS 208 (Fla. DOAH Apr. 11, 2007). For ease of reference, the second and third elements can be conflated into one component: "resulting ineffectiveness." Id.
Turning to the merits, Petitioner alleges, and the undersigned agrees, that Respondent's conduct ran afoul of multiple provisions of the Principles of Professional Conduct. First, Respondent violated rule 6B-1.006(4)(b), which prohibits an educator from intentionally misrepresenting facts about an educational matter in direct or indirect public expression, by:
lying to her colleague, Dr. Sklar, concerning the intended use of S.N.'s evaluation; providing false addresses to the registrars of Krop and Highland Oaks; and/or misleading
Dr. Rubin concerning the reason she desired to temporarily register J.N. at Highland Oaks. See Broward Cnty. Sch. Bd. v. Harris, Case No. 10-10094, 2011 Fla. Div. Adm. Hear. LEXIS 319 (Fla. DOAH Nov. 23, 2011)(finding violation of rule 6B- 1.001(4)(b) where educator falsely informed administrator that the integrity of FCAT testing booklets had been compromised).
In addition, Respondent violated rule 6B-1.006(5)(a), which requires an educator to maintain honesty in all professional dealings, either by virtue of the conduct enumerated in the preceding paragraph or her involvement in the creation of the fraudulent documents located in the cumulative files of S.N. and J.N. See Gallagher v. Desjarlais, Case No. 00-2767, 2000 Fla. Div. Adm. Hear. LEXIS 5435 (Fla. DOAH Oct.
31, 2000)(concluding that educator failed to maintain honesty in professional dealings by lying to his administrator about the cause of a fire that occurred on school grounds).
Further, it is evident that Respondent took advantage of her status as a high-level district employee to facilitate and/or expedite events that were necessary to the McKay scholarship process, to wit: the registration of S.N. at Krop during the 2008 FTE weeks; S.N.'s re-enrollment, withdrawal, re-
re-enrollment, and final withdrawal from Krop during the February FTE period; J.N.'s registration at Highland Oaks, which led to the creation of an IEP in the Miami-Dade County School District——where Respondent never intended for J.N. to attend school; and the drafting of S.N.'s IEP, which was accomplished in record-setting time and at the expense of 49 students in Krop's geographic region who were already awaiting an IEP staffing. Such feats could not have been accomplished by an ordinary parent, and Respondent's behavior in this regard constitutes a plain violation of rule 6B-1.006(4)(c), which prohibits an educator from using institutional privileges for personal gain or advantage.
The conclusion that Respondent violated the foregoing rule provisions does not end the inquiry, however, as Petitioner must also demonstrate that the misconduct caused in impairment in Respondent's effectiveness in the school system. Although Petitioner adduced no specific evidence of impairment, it is well-settled that:
"[M]isconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness.
Miami-Dade Cnty. Sch. Bd. v. Grey, Case No. 10-9324, 2011 Fla. Div. Adm. Hear. LEXIS 18, *33 (Fla. DOAH Mar. 8, 2011); Purvis
v. Marion Cnty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(holding impaired effectiveness could be inferred by nature of misconduct, which included resisting arrest and testifying falsely under oath during a criminal trial; "[t]his is a level of misconduct which would support the inference that Purvis' effectiveness as a teacher has been impaired, even though no parent, student or co-worker was called as a witness to say so"); Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127, 128 (Fla. 2d DCA 2000)(holding that teacher's misconduct, which resulted in "loss of control" in classroom, permitted an inference of ineffectiveness); Miami-Dade Cnty. Sch. Bd. v.
Lefkowitz, No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS 675,
*23-24 (Fla. DOAH July 31, 2003)("The School Board failed to prove by a preponderance of the direct evidence that
Mr. Lefkowitz's actions were so serious that they impaired his effectiveness as a teacher. Nonetheless, based on the findings of fact herein, it may be inferred that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami-Dade County public school system")(citation omitted).
With the foregoing authority in mind, the undersigned is persuaded that Respondent's acts of duplicity warrant an inference that her performance in the system has been impaired;
as such, Respondent is guilty Misconduct in Office and just cause exists to terminate her employment. See Broward Cnty.
Sch. Bd. v. Harris, Case No. 10-10094, 2011 Fla. Div. Adm. Hear. LEXIS 319 (Fla. DOAH Nov. 23, 2011)(concluding that educator's acts of misconduct, which included lying to an assistant principal concerning a testing issue, warranted an inference that her performance was impaired); Miami-Dade Cnty. Sch. Bd. v. Spivey, Case No. 06-1073, 2007 Fla. Div. Adm. Hear. LEXIS 126 (Fla. DOAH Feb. 28, 2007)(inferring impaired effectiveness where educator engaged in "deceitful or dishonest conduct" in connection with his professional duties); Broward Cnty. Sch. Bd. v. Sapp, Case No. 01-3803, 2002 Fla. Div. Adm. Hear. LEXIS 1574 (Fla. DOAH Sept. 24, 2002)("[A]s a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion"); Gallagher v. Desjarlais, Case No. 00-2767, 2000 Fla. Div. Adm. Hear. LEXIS 5435 (Fla. DOAH Oct. 31, 2000)
("Petitioner proved by clear and convincing evidence that Respondent is guilty of personal conduct that seriously reduces his effectiveness as a school board employee. Trust is an important component of the relationship that must exist among teachers and between administrators and a teacher. Respondent's dishonesty seriously undermines this trust").
Immorality (Count II)
Petitioner further contends, in Count II of the Amended Notice of Specific Charges, that just cause exist to terminate Respondent's employment based upon her commission of an act of "immorality," which is defined as:
[C]onduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Fla. Admin. Code R. 6B-4.009(2) (emphasis added).
Pursuant to the foregoing definition, Petitioner must demonstrate——in order to dismiss Respondent for immoral conduct——that she engaged in behavior "inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to [1] disgrace the teaching profession and [2] impair [Respondent's] service in the community." McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476,
477 (Fla. 2d DCA 1996)(italics in original).
In the instant case, Petitioner presented no evidence establishing the applicable "standards of public conscience and good morals." Fla. Admin. Code R. 6B-4.009(2); McNeill, 678 So. 2d at 477. As a result, the undersigned cannot determine whether Respondent violated such public standards, and must therefore conclude that Petitioner has failed to meet its burden
of proof with respect to this charge. Broward Cnty. Sch. Bd. v. Deering, Case No. 05-2842, 2006 Fla. Div. Adm. Hear. LEXIS 367,
*12 (Fla. DOAH July 31, 2006)(finding educator not guilty of immorality where school board "did not offer any persuasive evidence establishing the applicable 'standards of public conscience and good morals'").
Responsibilities and Duties (Count III)
Turning to Count III of the Amended Notice of Specific Charges, Petitioner alleges that Respondent is in violation of Section I of School Board Rule 6Gx13-4A-1.21, which reads:
All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Contrary to Petitioner's assertion, it has failed to demonstrate any violation of the foregoing rule. First, there is no evidence that Respondent engaged in "unseemly conduct" or used abusive or profane language in the workplace. See Miami- Dade Cnty. Sch. Bd. v. Brooks, Case No. 04-4478 (Fla. DOAH Oct. 17, 2005)("The Rule [6Gx13-4A-1.21] does not define 'unseemly conduct.' In ordinary usage, the word 'unseemly' usually
suggests inappropriateness manifesting indecency, bad taste, or poor form . . . . Brooks's conduct . . . was not indecorous in that sense, and thus he is not guilty of having acted in an 'unseemly' fashion"), adopted in toto Nov. 18, 2005.
Nor has Respondent violated the requirement of Section I that employees conduct themselves in a manner that will "reflect credit" upon themselves and the school system, as Petitioner has presented no evidence of an objective standard of conduct to evaluate Respondent's actions. Id. ("Consequently, if Rule 6Gx13-4A-1.21 makes it a disciplinable offense to behave in a way that causes someone not to hold the employee or the school system in high regard, then the decision-maker could apply the Rule in accordance with the rule of law only if he were able to conceptualize an objective standard of conduct, a neutral principle for defining reasonably esteem-worthy behavior under the circumstances at hand . . . . The School Board neither proved nor argued for the existence of such a standard of conduct. Without a neutral principle to apply, the undersigned, were he to attempt to pass judgment on Brooks's behavior, would be merely voicing a personal opinion——the very antithesis of the rule of law . . . . [T]o the extent the School Board has charged Brooks with a general failure to behave in a manner that reflects credit on himself and the school system, it has failed
to offer sufficient evidence to sustain the charge."). For these reasons, Respondent is not guilty of Count III.
Code of Ethics (Count IV)
In Count IV of the Notice of Specific Charges, Petitioner alleges that there is just cause to terminate Respondent's employment based upon a violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, which provides, in pertinent part:
INTRODUCTION
All members of The School Board of Miami- Dade County, Florida, administrators, teachers and all other employees of Miami- Dade County Public Schools, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. . . .
* * *
FUNDAMENTAL PRINCIPLES
The fundamental principles upon which this Code of Ethics is predicated are as follows:
* * *
Cooperation – Working together toward goals as basic as human survival in an increasingly interdependent world.
Fairness – Treating people impartially, not playing favorites, being open minded, and maintaining an objective attitude toward those whose actions and ideas are different from our own.
Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying.
Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong.
Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.
Pursuit of Excellence – Doing your best with the talents you have, striving toward a goal, and not giving up.
Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people
on their merits. It takes three major forms: respect for oneself, respect of other people, and respect for all forms of life and the environment.
Responsibility – Thinking before you act and being accountable for your
actions . . . .
Each employee agrees and pledges:
To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles.
To obey local, state and national laws, codes and regulations.
To support the principles of due process to protect the civil and human rights of all individuals.
To treat all persons with respect and to strive to be fair in all matters.
To take responsibility and be accountable for his or her actions.
To avoid conflict of interest or any appearance of impropriety.
To cooperate with others to protect and advance the District and its students.
To be efficient and effective in the delivery of job duties.
* * *
CONFLICTS OF INTEREST
Employees shall employ independent objective judgment in performing their duties, deciding all matters on the merits, free of partiality or prejudice and unimpeded by conflicts of interest or other improper influences. No employee shall engage in conduct, which creates a conflict of interest. A conflict of interest shall be defined as a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. A conflict of interest shall exist upon use by an employee of the authority of his/her office or the use of any confidential information received through his/her employment for the private pecuniary benefit of the employee, or the employee's immediate family . . . either directly or indirectly, without disclosure to the appropriate school district official.
(emphasis added).
In its Proposed Recommended Order, Petitioner contends that Respondent ran afoul of the Code of Ethics by failing to act fairly in all matters and/or by engaging in conduct that created a conflict of interest. The undersigned agrees that Respondent behaved unfairly by lying to her colleagues (and misusing her status as a School Board employee) in order to
obtain preferential treatment for her children, in violation of the Code of Ethics, and that an inference of impaired effectiveness may be drawn as a result of such behavior; it is therefore unnecessary to address the alternative argument that Respondent violated the Code of Ethics by creating a conflict of interest.
For these reasons, Respondent is guilty of violating School Board Rule 6Gx13-4A-1.213, as alleged in Count IV of the Amended Notice of Specific Charges.
Conflict of Interest
Finally, Petitioner that Respondent is in violation of School Board Rule 6Gx13-4A-1.212, Conflict of Interest, which provides:
No School Board employee shall corruptly use or attempt to use his or her official position or perform his or her official duties to secure a special privilege, benefit, or exemption for himself, herself, or others. Section 112.313(6), F.S.
(emphasis added).
While there is no question that Respondent engaged in repeated acts of dishonesty vis-à-vis her efforts to secure McKay scholarships for her children, there is insufficient record evidence that she acted with corrupt intent. See Siplin
v. Comm'n on Ethics, 59 So. 3d 150, 151 (Fla. 5th DCA 2011). As such, Respondent is not guilty of Count V.
Based on the foregoing findings of fact and conclusions of Law, it is
RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment.
DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida.
S
EDWARD T. BAUER
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 16th day of May, 2012.
ENDNOTES
1/ The following portions of Exhibits 16, 17, and 18 were admitted: pages 373-374, 401-402, 464-472, 520-527, 546-551,
555-557, 576, and 580 of Petitioner's Exhibit 16; pages 598-621
of Petitioner's Exhibit 17; and pages 623, 626-630, 684, 689-
692, and 670 of Petitioner's Exhibit 18.
2/ The following portions of Exhibits 113, 138, 163, 172, 253,
274, 290, and 325 were admitted: pages 1-9, 51-53, 109-111, 222-
226, 243-245, 250, 1404, 1465, 2132-2141, 2289-2294 2322, 2676,
2678, and 3808-3816 of Exhibit 113; pages 2-6 of Exhibit 138;
page 67 of Exhibit 163; page 3 of Exhibit 172; the bottom half
of exhibit 253; pages 2, 4, and 5 of Exhibit 274; pages 1-2 of
exhibit 290; and pages 8-16 of Exhibit 325.
3/ On April 24, 2012, Respondent filed two pleadings: "Respondent's Motion to Accept Corrected Proposed Recommended Order as Timely Filed," which is hereby granted; and a "Motion to Strike Testimony or in the Alternative Finding that Said Testimony Cannot be the Basis for Findings of Fact," which is hereby denied for the reasons articulated in Petitioner's Response, filed May 1, 2012.
4/ Although Dr. Sklar conceded that Respondent did not secure her participation through the use of threats or coercion, Dr. Sklar was aware that Respondent had, at various times in the past, engaged in unpleasant interactions with other School District employees.
5/ As part of a reorganization that occurred the previous month (July 2008), Dr. Sklar was removed from Respondent's direct supervision. However, it was unclear to Dr. Sklar as to what role Respondent would play in evaluating her future performance.
6/ Respondent's use of a false address allowed her to avoid the application of School Board Rule 6Gx-13-5A-1.08, which establishes the procedures that must be followed in order to transfer a child who resides outside of Miami-Dade County into Miami-Dade public schools.
7/ To be clear, Dr. Buslinger-Clifford did not testify that S.N. could not have qualified for ESE services pursuant to other criteria. Instead, Dr. Buslinger-Clifford emphasized that Dr.
Sklar's report (the only testing that was conducted) did not establish a need for ESE.
8/ Notwithstanding Ms. Parker's incorrect scoring of "Domain A," there is no evidence that the overall matrix score of 252 (which is derived by combining the scores from five different domains, and ranges from 251 to 255) was in error.
9/ The undersigned rejects S.N.'s explanation during the final hearing that her February 2009 enrollment at Krop was precipitated by incidents of misbehavior at American Heritage.
10/ For S.N.'s address, Respondent did not enter the "Mystic Pointe Drive" location that she had given to Krop's registrar, but rather, "1854 Northwest 107 Terrace, Plantation, Florida," the correct address that had been provided to American Heritage each year since 2004.
11/ Shortly thereafter, Dr. Tosado drove to Krop and signed out S.N.'s entire cumulative file from the school's registrar, Ms. Lopez. Although Dr. Tosado briefly glanced at the contents of the file to ensure that he had been correctly provided with S.N.'s documents (as opposed to the file of another student), he did not take an inventory or otherwise review the file's contents. After picking up S.N.'s cumulative folder, Dr. Tosado returned to his office and locked the file in his credenza.
Approximately three days later, Mr. Curt Ivy, the OIG employee assigned to investigate the anonymous complaint, reported to Dr. Tosado's office and took possession of the cumulative file. Although Mr. Ivy made two photocopies of S.N.'s file——one of which he provided to the Office of the State Attorney——he did not take an inventory.
Subsequently, Mr. Mark Zaher, a director of district and school operations who serves as the district's liaison to the court system, received a subpoena from the Office of the State Attorney for S.N.'s educational records. Mr. Zaher promptly contacted Krop, the location where he expected the file to be as S.N.'s last school of record, only to learn that the cumulative folder had been signed out by Dr. Tosado and forwarded to the OIG. This seemed unusual to Mr. Zaher, as he believed that a student's cumulative file could not be accessed for investigative purposes by anyone——even the superintendent of schools——unless under subpoena. Ultimately, the OIG provided Mr. Zaher with S.N.'s original cumulative file.
Notwithstanding the lack of an inventory and the somewhat unusual events surrounding the movement of S.N.'s cumulative file, Respondent has adduced no persuasive evidence that one or more persons "planted" documents in the folder in an effort to falsely implicate her of wrongdoing.
12/ Although Respondent presented unrebutted expert testimony that her signature was simulated on one of the documents found in S.N.'s IEP, such a fact does not compel a conclusion that Respondent is the victim of a "framing." On the contrary, it is far more likely——in light of the incriminating circumstantial
evidence——that Respondent's signature was simulated at her behest.
13/ See Hoover v. Knight, 678 F.2d 578, 582 n.1 (5th Cir. 1982)(observing, in the context of a Miami-Dade County employee's termination proceeding, that "the hearing examiner would not be constitutionally forbidden from drawing adverse inferences from an invocation of the privilege against self- incrimination"); Atlas v. Atlas, 708 So.2d 296, 299 (Fla. 4th DCA 1998)("[A] court may drew an adverse inference against a party in a civil action who invokes the Fifth Amendment privilege against self-incrimination").
COPIES FURNISHED:
Christopher J. La Piano, Esquire Miami-Dade County School Board
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Maria del Carmen Calzon, Esquire 1825 Ponce de Leon Boulevard, #249 Coral Gables, Florida 33134
Alberto M. Carvalho, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 912
Miami, Florida 33132-1308
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 19, 2012 | Agency Final Order | |
| May 16, 2012 | Recommended Order | Respondent is guilty of committing misconduct in office and violating the school board's Code of Ethics. Recommend termination of Respondent's employment. |
DADE COUNTY SCHOOL BOARD vs. RAIMUNDO MANUEL DANTE, 10-004143TTS (2010)
SCHOOL BOARD OF DADE COUNTY vs. FRED L. CROSS, 10-004143TTS (2010)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs DEBORAH SWIRSKY-NUNEZ, 10-004143TTS (2010)
MIAMI-DADE COUNTY SCHOOL BOARD vs JOSE FLEITES, 10-004143TTS (2010)
DADE COUNTY SCHOOL BOARD vs. MARCOS SAMUEL BANOS, 10-004143TTS (2010)
