STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DUVAL COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 13-0441
SHARON SANDERS,
Respondent.
/
RECOMMENDED ORDER
This case was heard on May 28 and 29, 2013, in Jacksonville, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Katy A. Harris, Esquire
David J. D‟Agata, Esquire City of Jacksonville General Counsel‟s Office
117 West Duval Street, Suite 480 Jacksonville, Florida 32202
For Respondent: T. A. Delegal, III, Esquire
Delegal Law Offices, P.A.
424 East Monroe Street Jacksonville, Florida 32202
STATEMENT OF THE ISSUE
Whether Respondent should be subject to demotion for directing staff to violate testing protocols related to the administration of the February 28, 2012, FCAT Writes test (FCAT test); for subsequently failing to report violations that were
known to Respondent at the time of the administration of the FCAT test; and for making inappropriate comments to staff regarding the investigation of the reported violations, as alleged in Petitioner‟s January 3, 2013, Notice of Discipline and, if so, the nature of the sanctions.
PRELIMINARY STATEMENT
On January 3, 2013, the Duval County Public Schools notified Respondent of the recommendation to be taken up by the Duval County School Board (School Board) that Respondent be reassigned from the position of principal to the position of assistant principal, with a corresponding adjustment in salary and schedule.
The Notice of Discipline alleged that Respondent “directed staff to violate testing protocols related to the administration of the FCAT Writing,” that Respondent “subsequently failed to report violations that were known to [her] at the time of the administration of the test,” and that Respondent “made inappropriate comments to staff regarding the investigation of the reported violations.” The School Board voted to approve the recommendation.
Respondent timely filed a petition disputing the allegations in the Notice of Discipline. The petition was referred by the School Board to the Division of Administrative Hearings on January 31, 2013.
The final hearing was initially scheduled for March 27 and 28, 2013. It was twice continued, reset for May 28 and 29, 2013, and held as scheduled.
At the final hearing, Petitioner presented the testimony of Kasey Williams, a guidance counselor at Windy Hill Elementary School (Windy Hill) and the school assessment coordinator for the FCAT test; Branaii Kennell, who at the time in question was a fourth-grade English and language arts teacher at Windy Hill, and a test administrator for the FCAT test; Robin Boney, who at the time in question was a fourth-grade math teacher at Windy Hill, and a proctor for the FCAT test; Thomas Scott, Director of Testing for the Duval County Public Schools; and Sonita Young, Chief Human Resource Officer for the Duval County Public Schools. Petitioner offered Petitioner‟s Exhibits 1A, 1B, 1C, 1D, 2-7, 9, and 11, which were received in evidence.
Respondent testified on her own behalf and presented the testimony of Becky Nelson, an instructional coach at Windy Hill and a test administrator for the FCAT test; Jennifer Turner, the assistant principal at Windy Hill; Katherine Payne, who at the time in question was a fourth-grade math teacher at Windy Hill and a proctor for the FCAT test; Beverly Hurst, a former Duval County teacher and current educational consultant; and Jessica Altman, an investigator for the Duval County school district.
Respondent offered Respondent‟s Exhibits 3, 13, 14, and 16,
which were received in evidence. Respondent‟s Exhibit 16 was identified in the Prehearing Stipulation as “Writer‟s Camp Morning Lesson Focus; DESP Minutes February 19, 2013.” Only the two-page Writer‟s Camp Morning Lesson Focus was offered and received in evidence.
A four-volume Transcript of the hearing was filed on June 21, 2013. An extension of time for filing Proposed Recommended Orders was granted, whereupon Petitioner and
Respondent timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2012) unless otherwise noted.
FINDINGS OF FACT
Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § 4(b), Florida Constitution;
§ 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees.
§ 1012.22(1)(f), Fla. Stat.
At all times relevant to this proceeding, Respondent, Sharon Sanders, was the principal at Windy Hill, a Duval County public school. She has been in the field of education for approximately 35 years, and has been with the Duval County public school system for 13 or 14 years. Ms. Sanders had been
the principal at Windy Hill for four-and-a-half years prior to her demotion, and previously served as the principal at Holiday Hill Elementary School for four years, with an intervening stint of a year or so as the school district‟s executive director of language arts. Since the demotion that forms the basis for this proceeding, Ms. Sanders has been the assistant principal at Landmark Middle School.
In her 35 years of service as an educator prior to the incidents that are the subject of this proceeding, Ms. Sanders had not been subject to any disciplinary action.
On March 6, 2012, the Duval County school district launched the investigation that resulted in the January 3, 2013, issuance of the Notice of Discipline. The investigators assigned by the school district were Mr. Thomas Scott, the district assessment coordinator, and Ms. Jessica Altman, a school district investigator.
General FCAT Testing Duties and Responsibilities
The Florida Department of Education issued a 2011-2012 Writing Test Administration Manual (DOE Manual) to govern and direct the process of administering the FCAT test. In order to ensure that the appropriate personnel were familiar with its contents, the DOE Manual provided that “[e]ven experienced district and school assessment coordinators and test administrators are responsible for reading and becoming familiar
with all information in this manual.” Ms. Sanders was not a district or school assessment coordinator, or a test administrator.
The DOE Manual establishes duties and responsibilities to be performed by the district assessment coordinator, school assessment coordinators, test administrators, and proctors for ensuring that standards for testing facilities, accommodations, pre-test and post-test procedures, and test administration are met. Other than general admonitions against violating test security applicable to anyone having exposure to the test or the process of its administration, the DOE Manual imposes no duties or responsibilities regarding FCAT testing on school administrators unless they hold one of the listed positions.
Ms. Sanders has never participated in FCAT testing as a member of the school administration, properly leaving duties and responsibilities for testing to the assigned school assessment coordinator and test administrators. During FCAT testing,
Ms. Sanders would generally go to her office and “let the testing coordinator and the teachers handle testing because they're the ones with the training and they're the ones with the expectation that they should handle it.” Ms. Sanders‟ position regarding her role in the FCAT-testing process is consistent with the DOE Manual.
Windy Hill FCAT Assessment Coordinator
At all times pertinent to this proceeding, Kasey Williams was the assigned FCAT school assessment coordinator for Windy Hill, having held that assignment for two years prior to the February 28, 2012, FCAT Writes exam. She had assisted as co-coordinator for a year previous to her assignment. Based on Ms. Williams‟ experience and training, Ms. Sanders had a justifiable expectation that she would be capable of performing the responsibilities assigned to her as set forth in the DOE Manual.
As a result of personal issues unrelated to her employment, Ms. Williams routinely arrived late for work. Although the Windy Hill school workday started at 7:40 a.m., Ms. Williams‟ normal arrival time was between 8:00 and 8:10. Ms. Sanders was willing to accommodate Ms. Williams, allowing her to work a flexible schedule “as long as she was doing her job and making sure everything was taken care of and she was willing to stay late and make sure everything was handled.” Whether she stayed late is difficult to determine, since
Ms. Williams rarely signed in and out of work, a task expected of and performed by other teachers and staff.
In the weeks leading up to the administration of the FCAT test, Ms. Williams‟ personal issues had gotten to the point that she was observed crying on numerous occasions, walking out
of her office on the telephone crying, and snapping at teachers and administrators. She was planning to move out of her home on the weekend following the FCAT test. Ms. Williams‟ job performance was affected by her personal situation.
Pre-FCAT Staff Meeting
Several weeks before the FCAT test, a meeting was held in Ms. Sanders‟ office to discuss preparations for the FCAT test. Attendees, in addition to Ms. Sanders, were Ms. Rebecca Nelson, Mr. Chris Bacca, and Ms. Branaii Kennell. Ms. Williams, as the school assessment coordinator, had been advised of the meeting and was expected to attend.
As the participants were assembling, Ms. Williams “stuck her head in” and advised that she would not be attending the meeting, but rather had an unspecified meeting “off-campus.” The purpose of the off-campus meeting was not explained. The greater weight of the evidence demonstrates that Ms. Williams knew of the pre-FCAT meeting, but chose to be elsewhere.
When Ms. Williams made her brief appearance at the meeting, Ms. Sanders, consistent with her practice when teachers miss faculty or planning meetings, advised her to “make sure you get with. . . one of us and find out what you need to know.”
Ms. Kennell knew that Ms. Williams was not at the meeting, but did not know why she was not there. In that
regard, Ms. Sanders was not certain that Ms. Kennell had arrived for the meeting when Ms. Williams made her appearance.
Items for discussion at the pre-FCAT staff meeting included where to do testing, assignment of teachers as administrators and proctors, accommodations for ESE students, the need for seating charts -- in general the “nitty-gritty things.” The issue of student seating was not discussed.
Harris Hall, a large, carpeted multipurpose room with an elevated stage, was suggested as the testing location because students had been going to Harris Hall since the beginning of the year for collaborative writing labs and writer‟s workshops. A consensus among the attendees developed that Harris Hall would be the setting that the children would be the most comfortable in, and would be an appropriate location for a preparatory Writer‟s Camp and the FCAT testing.
The plan was to have basic testing conducted on the floor level of Harris Hall, and to have ESE students test on the smaller stage level, with large flat-screen televisions and a white board used to visually separate the areas. The ESE teacher, Ms. Miller, was to be consulted to ensure that the arrangement was suitable to meet the accommodations required by her students‟ Individualized Education Programs (IEPs). If
Ms. Miller decided that Harris Hall was not suitable to
accommodate her students‟ IEPs, a different location would be provided.
Ms. Williams did not follow up with Ms. Nelson about the meeting, and there was no evidence that she followed up with any other attendee.
Ms. Williams‟ testimony that, by holding the pre-FCAT meeting as previously scheduled, “[m]y administrator chose to pretty much coordinate the FCAT without me” is not supported by the evidence, and is rejected. Based almost entirely on
Ms. Williams‟ self-serving statements, Mr. Scott determined, and made part of his report, that Ms. Williams was “excluded” from the meeting. Mr. Scott‟s investigatory finding is contrary to the greater weight of the evidence.
Harris Hall Preparation
As the FCAT test approached, and in order to ensure that Harris Hall could accommodate students for the Writer‟s Camp and the FCAT test, Ms. Sanders prepared a rough sketch showing tables and chairs on the floor level and the stage of Harris Hall. Ms. Sanders gave the sketch, which included the dates on which the tables and chairs were needed, to the school custodian.
The sketch was not intended to be a seating chart, but was for the purpose of making sure that tables and chairs were brought to Harris Hall so that the teachers and test
administrators involved in the Writer‟s Camp and the FCAT test would not have to get them on their own. It was then the responsibility of the test administrators to arrange them, and to make the final decisions as to where the children were to sit.
Writer‟s Camp
A “Writer‟s Camp” designed to familiarize students with, and prepare them for, the FCAT test has been conducted at Windy Hill for at least five years. A writer‟s camp was conducted at Holiday Hill Elementary School during the period when Ms. Sanders was the principal and Ms. Nelson was the instructional coach, and was implemented at Windy Hill when
Ms. Sanders and Ms. Nelson were reassigned to Windy Hill.
The purpose of Writer‟s Camp is to recognize the work of the students over the course of the year, and to build up their confidence through guest speakers and activities.
The Windy Hill Writer‟s Camp has become a model that is used at other schools in the district. Ms. Sanders had been asked by Sylvia Johnson, a district school administrator, to use her program as a model for other schools. In order to implement that request, Ms. Nelson has met with principals and fourth- grade teachers at elementary schools in the district to instruct them on developing writer‟s camps at their schools. The Windy
Hill Writer‟s Camp was generally the same as camps operated in at least six other elementary schools in the district.
Writer‟s Camp was to be held on February 21-24 and 27, 2013 in Harris Hall. Ms. Sanders authorized teachers who had been designated as test administrators for the FCAT test to develop the expectations for the camp, identify the speakers, develop the lessons, and plan how the students were to be broken into small groups. The agenda and schedule were developed by Ms. Nelson, Ms. Kennell, Mr. Bacca, and Ms. Hurst working as a team. Ms. Sanders did not participate in the planning. Rather, she provided the teachers and Ms. Hurst with the opportunity to work together.
Consistent with the written schedule developed by the planning group, Writer‟s Camp was held for several hours per day for five days preceding the FCAT test, commencing on Tuesday, February 21, 2012. Writer‟s Camp did not take up the entirety of the school day, though it did focus on writing for more than the normal period. For the five days on which Writer‟s Camp was held, the written schedule allotted a total of 10 hours for Writer‟s Camp. The remaining 18.5 hours of the scheduled portion of the school days were to be devoted to math and science instruction, recess, lunch, “resource/common planning,” and “share time.” The written schedule generally reflected what was done on those days.
During the period that Writer‟s Camp was ongoing,
Ms. Payne found sufficient time to teach math and science in her classroom. Ms. Kennell testified that she did not teach other subjects except to go over homework and worksheets during the days on which Writer‟s Camp was held, but admitted that it is up to the teacher‟s discretion as to how much time they spend on various subjects in their classroom. Ms. Boney testified that she could not teach math to her fourth-grade students because of their participation in Writer‟s Camp. She acknowledged that she had up to two hours per day for subjects other than Writer‟s Camp, which time included lunch, recess, and bathroom breaks.
The greater weight of the competent, substantial, and credible evidence in this case indicates that there was sufficient time during the day for instruction in math and reading to take place, though not to the extent that it might have been taught without Writer‟s Camp. The fact that
Ms. Kennell and Ms. Boney felt that they were unable to teach other subjects appears to be a function of their own classroom organization, rather than a lack of time.
After the FCAT Writes test, most teachers temporarily increased their focus on other subjects so as to equalize the time spent on each subject. A district math coach came to Windy Hill for five Fridays after the FCAT test was done for a kind of informal math camp. Ms. Payne chose to take advantage of the
math coach and as a result believed that her students did not lose out on any math instruction as a result of Writer‟s Camp. Ms. Boney did not opt to use the services of the district math coach for reasons that were not well explained, although
Ms. Kennell and Ms. Boney had their students do “double block math” the week following Writer‟s Camp so that they did not miss anything. Since the specifics of classroom instruction are up to each teacher‟s discretion, the manner by which Ms. Kennell and Ms. Boney chose to make up the class time was by no means improper.
There is nothing inappropriate in concentrating on writing leading up to the FCAT Writes test, as long as there is a greater emphasis on the other subjects after the FCAT Writes test is complete. In that regard, Mr. Scott acknowledged that a school may conduct a writer‟s camp at the temporary expense of instruction in other subjects, as long as the time for those other subjects is balanced out with greater instruction at a later time.1/
Even though he acknowledged that a balancing of instructional time was appropriate, Mr. Scott did not discuss the Writer‟s Camp with Mr. Bacca, Ms. Payne, or Ms. Nelson, did not receive or review the written schedule and curriculum, and did not ask the fourth-grade teachers whether time in Writer‟s Camp had been subsequently balanced out with time devoted to
other subjects. As justification for his failure to ask questions that would reasonably bear on whether the Writer‟s Camp violated section 1008.22(4), Mr. Scott testified that “writing camp had been done in the past and it was not precedent
. . . for there to be a math camp or for there to be a reading camp.” Mr. Scott‟s assumption was without any support in the record of his investigation or of this proceeding.
Despite his failure to review the written schedule or to conduct meaningful interviews regarding the issue, Mr. Scott testified as to his understanding that students “spent five days in Harris Hall preparing for the FCAT Writes by doing practice prompts and that type of thing,” and that “from what I gathered,” Writer‟s Camp was all day long. Mr. Scott‟s understanding of the Writer‟s Camp schedule is unsupported by competent, substantial, and credible evidence in the record.
What is clear from the record of this proceeding is that Writer‟s Camp did not take up the entire day on the days of its administration, and that the time spent on focusing on writing before the FCAT test was “balanced out” with greater instruction in other subjects the following week. The manner in which such balancing was accomplished was within the discretion of the classroom teachers, and was not the decision of
Ms. Sanders or the school administration.
The School Assessment Coordinator Engages
Ms. Williams was an experienced school assessment coordinator. Ms. Sanders had no reason to doubt that
Ms. Williams would fail to perform her duties as the school assessment coordinator as she had done in the past in a very reliable fashion. Having assigned responsibility for the FCAT test preparations to the person designated in the DOE Manual as having such responsibility, a person she reasonably believed to be a competent member of her staff, Ms. Sanders was not remiss in having confidence that Ms. Williams would perform her duties.
Ms. Williams made no effort to engage in planning for the upcoming FCAT test until February 22, 2012, the day after Writer‟s Camp started, and four school days before the FCAT test was to be administered.
On that date, Ms. Williams sent an e-mail to
Ms. Sanders in which she stated that “[t]his one snuck up on me.”2/ She then testified at the hearing that “the FCAT always snuck up on us.” The evidence demonstrates that remainder of the staff appeared to be fully engaged in their preparations for the FCAT test, including Writer‟s Camp. The only person that the FCAT “snuck up on” was the person with the greatest assigned and expected responsibilities, Ms. Williams.
Ms. Sanders responded to Ms. Williams‟ February 22, 2012, e-mail by suggesting that Ms. Nelson would help with the
selection of proctors. Proctors were thereafter selected, and were in attendance during the administration of the FCAT test.
Ms. Sanders also advised Ms. Williams that Ms. Turner would “send information” to the teachers and proctors about picking up the manual on Friday, and meeting on Monday afternoon for training. Ms. Turner had no specific recollection of sending information, but it would have been consistent with her normal practice of complying with Ms. Sanders‟ requests to have done so.
Ms. Sanders responded and assisted Ms. Williams in a reasonable and appropriate manner. Her offer of modest assistance cannot reasonably be construed as an assumption of control over the duties of the school assessment coordinator.
In the days following her February 22, 2012, e-mail, Ms. Williams did little to fulfill her duties as the school assessment coordinator.
The only “preparation” performed by Ms. Williams involved her effort to locate partitions that she believed should have been placed at the testing tables to create visual barriers between students. As will be discussed in detail herein, Ms. Williams‟ belated effort to obtain partitions was rushed and disorganized. More to the point, there is little in the way of competent, substantial, and credible evidence that
Ms. Sanders was told of Ms. Williams‟ efforts until minutes before the test was to begin.
The DOE Manual requires that the school assessment coordinator train test administrators and proctors prior to the test. Such training is typically performed well in advance of the test. Ms. Williams determined that she could fulfill her obligation to train test administrators by providing them with copies of the DOE Manual on the afternoon before the FCAT test for them to review on their own. Ms. Williams asserted that she typed up “brief training notes” to hand out with the DOE Manual, though no other witness mentioned having received notes from
Ms. Williams.
With her distribution of the DOE Manuals, Ms. Williams “preparations” for the FCAT test were complete.
February 28, 2012 - Testing Day
On the day of FCAT testing, Ms. Williams showed up for work at approximately 8:10 a.m. Ms. Williams saw no problem with arriving late to work on testing day because, with regard to the necessary preparations, “usually most of it's done prior to the morning of testing.” To the extent that FCAT preparations were done, they were done in spite of her lack of preparation.
Ms. Turner encountered Ms. Williams as Ms. Williams arrived for work. It appeared to Ms. Turner that Ms. Williams
was having emotional problems as she was teary-eyed and visibly upset. Ms. Turner went with Ms. Williams to her office due to her concern for Ms. Williams‟ well-being. Ms. Turner spoke with Ms. Williams about her needing to move, her having ongoing family issues, and it having been a rough night for her.
Ms. Turner knew that Ms. Williams had responsibilities for the administration of the test, and wanted to make sure that she was alright.
Ms. Williams‟ account of the discussion differs from that of Ms. Turner. Ms. Williams testified that Ms. Turner “spent 40 minutes in my office berating me.” She further testified that Ms. Turner instructed her to pack her things and get ready to leave campus, a statement finding no support in the investigative report or otherwise in the record of this proceeding.
The preponderance of the competent, substantial, and credible evidence adduced at the hearing fails to support a finding that Ms. Turner berated Ms. Williams on the morning of the FCAT test, that she interfered with Ms. Williams‟ duties as school assessment coordinator, or that she suggested to
Ms. Williams that she needed to leave the school campus while the FCAT test was ongoing.
Ms. Williams estimated that her discussion with Ms. Turner lasted for approximately 40 minutes. Accepting
Ms. Williams‟ time estimate, she began to distribute FCAT test materials to the test administrators at approximately 8:50 a.m. Each of the four test administrators received his or her tests and materials in turn, counted them, and signed for them. The process took, in Ms. Williams‟ estimation, a total of ten minutes.
According to the security logs, Ms. Kennell entered Harris Hall at 8:50 a.m., Mr. Bacca and Ms. Miller at 9:00 a.m., and Ms. Nelson at 9:20 a.m. By the time Ms. Williams got to Harris Hall, the students were assembled “in the front corner with Mr. Bacca reading a book or talking to them.” Since
Mr. Bacca entered Harris Hall with his materials at 9:00 a.m., the time necessary for him to put his things down, assemble a group of fourth-grade students, and start to read to them, suggests that Ms. Williams showed up well after 9:00 a.m. for the 9:30 a.m. test.
The circumstances regarding Ms. Williams‟ appearance in Harris Hall, and the testing conditions that form the grounds for the School Board‟s Notice of Discipline, will be discussed in detail herein.
Ms. Williams returned to her office. Ms. Sanders then delivered her pep talk to the students. The talk was brief, whereupon Ms. Sanders went to her office. Ms. Sanders had no further involvement with the testing.
At the conclusion of the pep talk, Ms. Nelson took about 17 high-performing students to Room 21 for testing because that was where they had received the majority of their writing instruction during the year.
The remaining students were individually seated by the test administrators. The basic students were seated at tables at the floor level of Harris Hall, and the ESE Students were seated at tables on the stage.
Ms. Miller, the ESE teacher, and the person most qualified and knowledgeable about her students‟ IEPs and accommodations, had no issue with her students being tested on the stage. There was no evidence that the accommodations for the ESE students included anything other than additional time for testing.
Mr. Scott was critical of the arrangement, testifying that if a prompt had to be read to an ESE student, other students probably would have heard it. However, Mr. Scott did not review any of the IEPs to determine what accommodations were provided, did not know whether any verbal prompts were necessary or required, and otherwise had no evidence to suggest that the testing of the ESE students had the potential to, or did, cause a disruption to any student being tested in Harris Hall.
After the students were seated, Mr. Bacca read the testing scripts to the students and testing commenced.
Mr. Bacca gave the students the required warning with ten minutes remaining, and the basic testing ended as scheduled without incident.
At the conclusion of basic testing, and after a short break, Ms. Miller‟s ESE students resumed testing in Room 21, which had been vacated by Ms. Nelson‟s students. There, they were accommodated with additional time to complete their tests. Although Mr. Scott found it unusual for students to move during the break, there was no allegation or proof that allowing the ESE students to complete their testing in Room 21 was improper or a violation of FCAT testing protocols. In any event, there is no evidence that Ms. Sanders was aware of the move.
Ms. Kennell, Mr. Bacca, and Ms. Nelson took their completed test materials, which included the tests themselves, student work papers, scripts, security logs, and other documents to Ms. Williams as required. Although the test administrators were to have turned in their seating charts to Ms. Williams, they did not. Ms. Williams did not ask the test administrators about their seating charts. Further issues regarding the seating charts that form a basis for the School Board‟s Notice of Discipline, will be discussed in detail herein.
After basic testing was complete, Ms. Williams left the school campus. Further issues regarding Ms. Williams‟
departure that form a basis for the School Board‟s Notice of Discipline, will be discussed in detail herein.
After Ms. Williams left campus, Ms. Miller completed the FCAT testing of her ESE students. She gave the testing materials to Ms. Turner, who placed them in Ms. Williams‟ locked and secured office.
The Investigation
After the conclusion of the FCAT test, a report was made to the school district that Mr. Bacca had received information regarding the testing prompt, and that he had shared that information with other teachers. The report resulted in the initiation of an investigation to determine the merits of the complaint. The investigation was assigned to Mr. Scott and Ms. Altman.
At approximately 9:30 on the morning of March 6, 2012, Mr. Scott sent an e-mail to Ms. Williams advising her that he would be coming to the school later that morning to start an investigation of the complaint. Ms. Williams was with
Ms. Kennell when the e-mail was received. Ms. Kennell told Ms. Williams that she believed the investigation was related to Mr. Bacca and the testing prompt.
Mr. Scott and Ms. Atwater arrived at Windy Hill at approximately 10:30 a.m. and went to see Ms. Sanders. Mr. Scott advised Ms. Sanders of the nature of his investigation, and
requested Ms. Sanders‟ cooperation in making teachers available for interviews. Ms. Sanders agreed to do so. Ms. Sanders expressed her support for her teachers, and advised Mr. Scott of her belief that the fourth-grade teachers at Windy Hill would not cheat on the FCAT test.
During their initial discussion, Ms. Sanders advised Mr. Scott of her concerns with Ms. Williams, and described some of her recent emotional difficulties. Ms. Sanders made inquiry as to the process for changing the school‟s assessment coordinator before the next round of tests. Mr. Scott provided the information to Ms. Sanders, which she subsequently implemented, assigning Ellen Rubens to be the assessment coordinator for the next round of FCAT testing.
Ms. Sanders walked with Mr. Scott through the school, and showed him the testing rooms. During their tour,
Ms. Sanders engaged in a very general discussion of Writer‟s Camp and of the reasons that Harris Hall was selected for testing. She showed Mr. Scott the student papers that remained on the walls of Harris Hall. At the time of the tour,
Ms. Sanders did not know whether the papers had been covered at time of test, and Mr. Scott asked no questions about them.
Mr. Scott and Ms. Atwater interviewed a number of students, along with Ms. Williams, Mr. Bacca, Ms. Payne,
Ms. Kennell, and Ms. Boney. Brief questionnaires used by Mr. Scott for his teacher interviews were preserved.
During the interviews, Ms. Nelson, who was a test administrator during the FCAT test and a participant in the pre- FCAT staff meeting, stuck her head into the room and asked
Mr. Scott and Ms. Altman if they needed to see her. They indicated that they did not. Ms. Nelson was never interviewed.
On March 8, 2012, Mr. Scott and Ms. Altman returned to Windy Hill to continue their interviews with the five teachers previously interviewed. The thrust of the investigation remained the allegation that Mr. Bacca had learned of the prompt prior to the FCAT test. Ms. Sanders allowed Mr. Scott to use her office to continue the interviews.
After Ms. Kennell appeared for her interview,
Ms. Sanders received a call from counsel for the Duval Teachers Union, David Hertz, who asked her to advise the teachers and the investigators that he was in route to the school, and to ask them to postpone further discussions until his arrival.
Ms. Sanders did not know who called Mr. Hertz. Ms. Sanders complied with Mr. Hertz‟s request, and acted appropriately in doing so.
Mr. Scott believed that Ms. Sanders‟ act of advising the teachers of Mr. Hertz‟s request was somehow improper, commenting that “[i]t‟s very unusual for a principal to tell us
that the Union lawyer is on their way.” He further testified that Ms. Sanders “inhibit[ed]” his investigation and “cause[d] a delay in some of the information happening quickly.” While
Ms. Scott may have preferred to conduct his investigation free from the interference of the teachers‟ legal counsel, there is no evidence that Ms. Sanders had any intent or reason to hinder the investigation when she forwarded Mr. Hertz‟s message, or that by so doing she inhibited the investigation. Rather, her actions were reasonable, appropriate, and in keeping with the legal rights of the teachers.
During one of the two days that she was on campus,
Ms. Altman advised Ms. Sanders to speak with her staff, instruct them not to discuss the investigation, and advise them that progressive discipline could result if they discussed the investigation amongst themselves. Further issues regarding
Ms. Sanders‟ delivery of Ms. Altman‟s message will be discussed in detail herein.
On or about March 12, 2012, Mr. Hertz provided the investigators with written statements from Ms. Kennell,
Mr. Bacca, and Ms. Boney. Follow-up interviews with those three teachers were conducted on March 13, 2012.
Approximately two weeks after the test, and after Mr. Scott and Ms. Altman had completed their interviews,
Ms. Williams discovered the Writer‟s Camp papers and decorations
that remained on the walls of Harris Hall. Ms. Williams photographed the papers, and sent the photographs to Ms. Altman.
No cheating regarding the testing prompt was uncovered in the investigation. The FCAT Writes test scores were validated by DOE, and the writing scores were released and counted as part of Windy Hill‟s school grade announced in June or July of 2012.
At some indeterminate point, the investigation turned from one regarding the testing prompt to one directed at
Ms. Sanders for alleged violations of testing conditions.
After the focus of the investigation turned to
Ms. Sanders, neither Mr. Scott nor Ms. Altman saw fit to conduct further interviews of Ms. Sanders or any other member of the Windy Hill staff regarding specific testing improprieties, including those for which allegations of disciplinary conduct against Ms. Sanders were sustained.
The bulk of the information relied upon by the investigators to sustain allegations against Ms. Sanders came from Ms. Williams. Mr. Scott had previously worked with
Ms. Williams, and believed her to be “a reliable test coordinator.” Mr. Scott glossed over the possible effect that Ms. Williams‟ personal issues may have had on the performance of her duties as the school assessment coordinator, testifying that in her interviews “[s]he was the same Kasey I had known the year
before.” When asked about his unquestioning acceptance of Ms. Williams‟ statements, Mr. Scott testified as follows:
Q: Because [Ms. Williams] was somebody who's been in your classes, you've worked with her, you've trained her, right? And you just assumed that she was telling you the truth, didn't you?
I had no other reason to believe she was not.
As will be discussed herein, Ms. Williams‟ had a clear self-interest in covering for her inadequacies. At the very least she had her attention directed to other concerns as the FCAT test approached, failed to make any meaningful preparations for the FCAT test, neglected her duty to train the test administrators and proctors, and knowingly falsified seating charts that she submitted to the Department of Education.
Mr. Scott went to considerable effort to minimize and dismiss the failings of Ms. Williams. After having admitted that Ms. Williams should have called his office with her purported concerns, as was standard procedure for all school assessment coordinators, Mr. Scott stated that “I don't think she felt comfortable that she could do that. I had to give her a comfort level to do that without retribution.” He further testified that Ms. Williams “was a person who did not feel comfortable calling my office because of retribution, as indicated by all the teachers I spoke to, other than Mr. Bacca
maybe.” Finally, he testified that “I felt that one of the reasons Kasey did not report and that they didn't, they feel there's retribution. They were very, very fearful that day in that room giving me testimony. There was -- fearful of retribution, what might happen in terms of their jobs.”
There is not a scintilla of competent, substantial, and credible evidence that Ms. Sanders expressed, implied, or intimated that there would be retaliation for anything associated with the FCAT test before, during, or after its administration. Furthermore, there is no evidence of retaliatory action being meted out for anything related to the FCAT test or subsequent investigation, despite the almost ten months that passed between the commencement of the investigation and the date of the disciplinary notice. The suggestion that Ms. Williams‟ description of events is entitled to any degree of credibility due to her professed fears of “retaliation,” is rejected.
The investigators‟ unquestioning acceptance of Ms. Williams‟ account of events -- particularly in light of their failure to interview material witnesses and to review
“best-evidence” materials, including the Writer‟s Camp schedule and the recording of the March 7, 2012, faculty staff meeting -- causes the undersigned to seriously question the completeness and accuracy of the conclusions drawn from the investigation.
In October 2012, more than seven months after the commencement of the investigation, Ms. Altman typed her first draft report. All notes of the student and teacher interviews that formed the basis of the report were then destroyed by Ms. Altman.
On or about October 20, 2012, Ms. Altman sent her first draft report to the chief human resource officer for the school district, Ms. Young, for her review and comments.
Ms. Young provided written comments and returned the edited draft document to Ms. Altman. The original draft report and Ms. Young‟s comments were then destroyed by Ms. Altman.
The only version of the investigative report entered into evidence is the version created after the School Board voted to sustain the demotion of Ms. Sanders. Copies of the investigative report created prior to the time that the School Board voted to demote Ms. Sanders were destroyed.
Upon finalization of the investigative report,
Ms. Young prepared and sent a memorandum to Nikolai Vitti, the Superintendant of Schools, that provided the results of the investigation, outlined the investigators‟ findings, and sustained the allegations against Ms. Sanders, concluding that the evidence “proves the allegation(s) to be true.
The Superintendant of Schools had the disciplinary matter referred to the School Board with a recommendation for
Ms. Sanders‟ demotion from the position of principal, and reassignment to the position of assistant principal.
The Charges
On January 3, 2013, Ms. Sanders was provided with notice of her recommended demotion when she was called to
Ms. Young‟s office and handed the Notice of Discipline. Prior to that time, Ms. Sanders assumed that the investigation into improprieties in the FCAT Writes test was closed, since the scores had been validated and released, and the school grade announced. She did not know that she was the target of an investigation, and had been provided with no opportunity to respond or to provide information regarding her role, or lack thereof, in any of the specific allegations.
Ms. Sanders, through her counsel, requested an opportunity to respond to the allegations before the School Board took action at its January 7, 2013, meeting. On the day of the School Board meeting, the request was denied.
Ms. Sanders was advised that she would have an opportunity to speak at the School Board meeting.
During the School Board meeting, Ms. Sanders again asked for time to respond to the allegations before action was taken. Her request, along with similar requests made by between
20 and 30 attendees, was denied.
The School Board approved the report, and voted to demote Ms. Sanders to the position of assistant principal.
Ms. Sanders challenged the action of the School Board, and this proceeding ensued.
The Notice of Discipline alleged that Ms. Sanders “directed staff to violate testing protocols, failed to report violations that were known to her at the time of the administration of the test, and made inappropriate comments to staff regarding the investigation of the reported infractions.”
The specific testing protocols alleged to have been violated by Sanders, as reflected in Ms. Young‟s memorandum sustaining the allegations, are identified and addressed as follows:
1008.22(4) - Writer‟s Camp
The Notice of Discipline alleged that Ms. Sanders violated section 1008.22(4) by “suspending a regular program of curricula for purposes of administering practice tests or engaging in other test-preparation activities for a statewide assessment.”
Ms. Sanders was never interviewed about her involvement with the Writer‟s Camp, how it was set up, or how many hours of the day it was held.
The circumstances of the planning and conduct of the Writer‟s Camp are set forth in detail above. The evidence
demonstrates that the Writer‟s Camp was developed and administered for the purpose of administering practice tests and engaging in test preparation activities that were determined by Windy Hill faculty and their education consultant to be appropriate to familiarize students with the organization, format, and directions for the FCAT test. The evidence demonstrates that the Windy Hill Writer‟s Camp was accepted by the district office as a model for use in other schools, and was, in fact, implemented at other Duval County schools.
The assumption made by Mr. Scott that Writer‟s Camp was a day-long event that subsumed the regular curricula, was made without having reviewed the actual schedule and without having interviewed material witnesses, and is contrary to the greater weight of the evidence. The increased time that was devoted to allowable FCAT test preparation activities during the five-day Writer‟s Camp was balanced out with greater instruction in math and other subjects over the following weeks, a practice recognized as appropriate by Mr. Scott.
The School Board has failed to prove that the Writer‟s Camp was contrary to the allowable scope of activities described in section 1008.22(4)(e) by a preponderance of the competent, substantial, and credible evidence in this proceeding.
1008.24(1) - Test Security
The Notice of Discipline alleged that Ms. Sanders violated section 1008.24(1) by “knowingly and willfully” violating test security rules for the following specified reasons:
Failure to follow security rules for distribution and return of secure test as directed, or failure to account for all secure test materials before, during and after testing.
The facts underlying this count are those related to the allegation that Ms. Sanders did not allow Ms. Williams to monitor testing rooms, and that Ms. Sanders did not allow
Ms. Williams to supervise make-up administrations, both of which were pled as violations of the DOE Manual.
The specific findings that apply to this count are set forth in detail in the analysis of the corresponding DOE Manual violation counts, which are incorporated as to this count.
In addition to the findings of fact incorporated in this analysis, the evidence demonstrates that FCAT test materials were distributed and accounted for in compliance with applicable standards before and during the FCAT test. The only potential irregularity in the return of the completed FCAT tests was that occasioned by Ms. Williams‟ decision to leave campus to attend to her personal affairs before ESE testing was complete.
To ensure the integrity of Ms. Miller‟s test materials in Ms. Williams‟ absence, Ms. Turner accepted those tests and locked them in Ms. Williams‟ office pending her return.
The evidence demonstrates that Ms. Sanders did not know of Ms. Williams‟ departure from campus prior to the completion of testing on February 28, 2012, nor was she advised of Ms. Turner‟s acceptance of Ms. Miller‟s ESE class FCAT tests.
In light of the findings of fact made regarding Ms. Williams‟ ability to monitor testing rooms and supervise
make-up administrations, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow security rules for the distribution and return of the FCAT test and testing materials as directed, or that she “knowingly and willfully” failed to account for all FCAT tests and testing materials before, during, and after testing.
Failure to follow test administration directions specified in the test administration manuals
The Notice of Discipline alleged that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals.
The DOE Manual provides that it is the responsibility of the test administrator to administer the FCAT test in accordance with the directions.
The greater weight of the competent, substantial, and credible evidence demonstrates that the test administration directions, including scripts and prompts, were followed to the letter. The only potential breach was that of Ms. Kennell, who told the students that they should not forget their conclusions as the test was winding down. There is absolutely no evidence that Ms. Sanders was advised of that possible minor irregularity.
There is no evidence in the record of this proceeding that Ms. Sanders failed to follow test administration directions specified in the test administration manuals.
The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals.
Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section.
By this count, the School Board has, essentially, thrown the kitchen sink at Ms. Sanders in a broad and general count with little specificity. Thus, the undersigned concludes that the only way this count can be addressed, consistent with accepted tenets of due process, is to limit the “acts prohibited
in this section” to those pled and specifically identified elsewhere.
In addressing this count, the undersigned incorporates the findings of fact as to each of the acts alleged in the Notice of Discipline.
In light of the findings of fact made as to each of the acts alleged in the Notice of Discipline, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” participated in, directed, aided, counseled, assisted in, or encouraged any act alleged to have violated the provisions of section 1008.22 or section 1008.24, the DOE Manual, or the educators‟ Code of Ethics.
Violations of the DOE Manual
The Notice of Discipline alleged that Ms. Sanders failed to adhere to the following requirements of the DOE Manual:
School Assessment Coordinator not able to monitor testing rooms:
The Notice of Discipline alleged that Ms. Sanders caused Ms. Williams, the school assessment coordinator, to be unable to monitor the testing rooms in accordance with the DOE Manual.
As set forth previously herein, Ms. Williams appeared in Harris Hall on the morning of February 28, 2012, well after 9:00 a.m. Students had already assembled, and Mr. Bacca was reading to them. Ms. Sanders had entered the room, was speaking with students, and was preparing to deliver her “pep talk.”
When she entered Harris Hall, Ms. Williams was still visibly upset. She began to gather, count, and place and tape partitions onto the tables, which will be discussed in greater detail herein.
The evidence supports Ms. Sanders impression that Ms. Williams “was stressed out and she was stressing teachers and students out.” In order to minimize the effect of
Ms. Williams‟ hurried efforts, and to avoid “a big discussion about whether or not we were going to use those partitions in front of the students right before their test started,”
Ms. Sanders recommended that Ms. Williams return to her office in order to start to normal testing procedures.
Ms. Sanders‟ request that Ms. Williams return to her office was driven in part by the need to have the FCAT test started on time. During the FCAT test, all of the other children at the school are on “lockdown” to minimize movement around the school and potential distractions for the fourth- grade students being tested. Essentially, everyone stays in place until basic testing is finished. Therefore, it was
important that the testing be started on time so as to be completed by lunchtime.
In order to ensure that testing staff can quickly locate the assessment coordinator if needed, it has been the normal FCAT testing protocol at Windy Hill for the assessment coordinator to be located at a central location when the testing is in progress, typically in the assessment coordinator‟s office. It had been determined during previous tests that the assessment coordinator should not be “roaming” about the school grounds. Thus, the instruction that Ms. Williams return to her office was consistent with the standard testing protocol at Windy Hill, and was not a new or unusual practice.
Windy Hill staff members not engaged in test administration are stationed in or near the assessment coordinator‟s office to act as “runners” at the direction of the assessment coordinator in the event of an emergency, which can range from a student getting sick to an unauthorized person walking into the testing area. However, there is nothing to prevent the assessment coordinator from personally handling an incident.
The greater weight of the evidence demonstrates that, although Ms. Sanders advised Ms. Williams to return to her office to start the testing process, she did not direct
Ms. Williams “to go to her office and stay there,” or tell Ms. Williams that she could not leave her office.
To the extent Ms. Williams remained in her office during the basic testing, such was consistent with the normal testing protocol at Windy Hill.
Mr. Scott‟s conclusions that Ms. Williams “was constrained” from performing her duties as a school assessment coordinator, and his statement that “Ms. Sanders chose to take over that responsibility [of assessment coordinator] when she sent Ms. Williams to her office,” both of which were based predominantly on Ms. Williams‟ statements, are contrary to the greater weight of the evidence and are rejected.
Basic testing was completed prior to 11:00 a.m.
Mr. Bacca, Ms. Kennell, and Ms. Nelson returned their testing materials to Ms. Williams at that time.
Ms. Miller moved her ESE students to Room 21 to complete their testing so that Harris Hall could be freed up for other uses. Therefore, Ms. Miller did not return the test materials for her students to Ms. Williams when basic testing was completed.
After the return of the basic testing materials, but while Ms. Miller‟s ESE student tests were still out,
Ms. Williams went to the office of Jennifer Green, the school‟s
speech pathologist.3/ Ms. Green‟s office is not in the same building as Ms. Williams‟ office.
Ms. Williams admitted that she was emotionally upset as she sat in Ms. Green‟s office, but attributed it to
Ms. Turner‟s interaction with her earlier that morning. She further testified that she had gone to Ms. Green‟s office “to ask her to take care of some things that needed to be taken care of while I was forced off campus.” Having previously found that Ms. Williams was not forced off campus by Ms. Turner,
Ms. Williams‟ testimony that she was emotionally upset as a result of anything to do with the FCAT test or her duties as the school assessment coordinator is not accepted.
Ms. Turner received the information that Ms. Williams was in Ms. Green‟s office, upset and crying, and having a conversation with Ms. Green. She reported that information to Ms. Sanders, who instructed Ms. Turner that “if she‟s finished testing, that‟s fine with me. Tell her she can go home and do what she needs to do.” Since it was later in the day,
Ms. Sanders believed that ESE testing had been completed, and could think of no reason for Ms. Williams to be in Ms. Green's office in a different building if testing had not been completed. Ms. Sanders testified credibly that her instruction to Ms. Turner was not intended to mean that Ms. Williams was to leave before testing was finished.
The intent behind Ms. Sanders‟ instruction to
Ms. Turner was one of compassion and support for Ms. Williams, allowing her to deal with what was understood by many at Windy Hill to be a difficult and troubling personal situation. There is no credible evidence that Ms. Sanders intended to restrict Ms. Williams from performing her duties as the school assessment coordinator if she was capable of doing so, or to authorize her departure from school grounds before testing was complete.
After discussing the issue with Ms. Sanders,
Ms. Turner spoke with Ms. Williams and told her that “if testing is finished, . . . why don't you go home. You've got some stuff going on. You're trying to move. You need to find a home, that kind of thing. Why don't you go home.” Ms. Turner testified credibly that she did not order Ms. Williams to leave the campus before testing was completed.
Ms. Williams decided to act on the offer to go home.
She advised Ms. Turner that she had not yet received tests from Ms. Miller. Ms. Turner, who considered herself to be a friend of Ms. Williams, and understood that she was upset and had been so since her arrival at school that morning, allowed her to leave even though the last of the tests had not been returned.
Ms. Turner walked with Ms. Williams to her car. As with Ms. Sanders, Ms. Turner‟s act was driven by concern for Ms. Williams‟ well-being. She testified credibly that she was
not “marching” Ms. Williams out of the office. Ms. Turner‟s account is accepted.
After Ms. Williams‟ departure, Ms. Turner accepted the responsibility of taking delivery of Ms. Miller‟s tests and testing materials in Ms. Williams‟ absence and, upon receipt, locked them in Ms. Williams‟ office for her to handle. Given the circumstances, that was the only viable course of action. There has been no suggestion in this case that any of
Ms. Miller‟s materials were missing, or that security was breached so as to cause the invalidation of the test scores.
There is no evidence that Ms. Sanders knew that Ms. Williams left campus before testing was complete, or that Ms. Turner had agreed to accept delivery of Ms. Miller‟s tests on her behalf.
Ms. Sanders was never interviewed about her alleged instruction that Ms. Turner order Ms. Williams off campus while testing was ongoing.
Despite the fact that Ms. Turner‟s account of the incident would appear to be critical to any reasoned investigation, neither Mr. Scott nor Ms. Altman interviewed Ms. Turner. Mr. Scott -- either in an effort to discount
Ms. Turner‟s subsequent testimony or to minimize the effect of the failure to interview her -- testified that he “absolutely” believed, based on his “interactions with Ms. Turner” that
Ms. Turner “was influenced by Ms. Sanders.” Since Mr. Scott did not interview Ms. Turner, those “interactions” are a mystery.
In any event, there is no legitimate reason for an investigator to decline an interview with a material witness because of a subjective belief that the witness may have been influenced by events. Furthermore, there is no evidence to support a finding that Ms. Turner‟s testimony in this case was shaded or influenced in any way by the fact that she served as
Ms. Sanders‟ assistant principal.
Although Mr. Scott understood that Ms. Turner “escorted” Ms. Williams off campus -- an understanding that is not supported by the evidence -- he was not able to determine that Ms. Sanders directed Ms. Williams to leave. In addition, Ms. Altman testified candidly that she uncovered no evidence or information that Ms. Sanders was aware that Ms. Williams left campus prior to the conclusion of the day‟s testing.
Mr. Scott‟s determination that Ms. Sanders had taken over the testing process or assumed the responsibilities of the school assessment coordinator when she instructed Ms. Williams to return to her office, and later allowed her to go home to attend to her pressing personal affairs, is not supported by the evidence and is rejected.
The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment
coordinator to monitor the testing rooms. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Student Seating
Seating Arrangements
The Notice of Discipline alleged that Ms. Sanders failed to ensure that students were seated at least three feet from one another, and that they were not facing one another.
Testing in Harris Hall4/ was done at conference-type tables. The estimated size of the tables varied from
Ms. Kennel‟s estimate of 8 feet in length, to Ms. Boney‟s estimate of 12 to 15 feet in length. The most persuasive evidence was that provided by Mr. Scott and Ms. Sanders who described the tables as being 10 feet in length.
By applying simple mathematics, six students may be seated at a table 10 feet in length without being less than three feet apart.5/
There was no persuasive evidence as to the width of the tables. The only estimates provided were those of
Ms. Williams, who described the width as “maybe” three feet plus a few inches, and Ms. Kennell, who described the tables as “maybe 3 feet wide.” The lack of competent, substantial evidence as to the width of the tables constitutes a failure of proof on the part of the School Board, the size of the tables
being a material element of the allegation that students were seated too closely.
Ms. Kennell testified that students were seated six to a table, with one on each end, and two on each side. Her testimony was persuasive that the students on the sides were facing the students on the other side.
Even though the evidence supports a finding that students were seated facing each other -- though not that they were seated too close together -- that fact alone does not prove that such a violation was attributable to Ms. Sanders.
The DOE Manual makes it clear that test administrators have the direct and primary responsibility to prepare the testing facilities, and includes the instruction that the test administrators are to:
Arrange the room so the each student will have enough workspace for the test materials. There must be at least three feet between students. Make sure that students are not facing each other when seated at tables and are not in seating (stadium or staggered) that allows them to easily view other students‟ writing.
The DOE Manual also makes it the responsibility of the school assessment coordinator to “[e]nsure that students are not facing each other when seated and are not in seating (stadium or staggered) that allows them to easily view other
students‟ writing . . . . Make sure there is at least three feet between students to prevent cheating.”
Neither the DOE Manual nor any other authority cited makes it the responsibility of a school principal to make decisions regarding student seating. Ms. Sanders testified convincingly that the decision as to how students were to be seated was best made by test administrators, stating that “I would not go into a teacher's classroom and say, you need to seat your children here, here, and here. That would be something a teacher would decide.” Her understanding is consistent with the duties and responsibilities established in the DOE Manual.
Ms. Sanders‟ hand-drawn sketch was not a seating chart, and does not support an inference that Ms. Sanders had assumed responsibility or control from the school assessment coordinator and test administrators for seating students.
If Ms. Williams had made a timely request for additional resources for the FCAT test, Ms. Sanders would have directed the school custodian to provide her with help and with what was needed before the test was to begin. There were more tables and chairs in the building and, if anyone had indicated that they were needed, there was ample time to have brought them to Harris Hall. No one suggested to Ms. Sanders that the
students could not be properly seated, or that additional seating was needed.
Ms. Sanders did not know how the test administrators and proctors arranged seating. She gave her motivational speech on the morning of testing, and left before students were seated.
Ms. Kennell testified that the “teachers were responsible for the seating of the students. That wasn‟t the principal‟s duty.”
Mr. Scott acknowledged that the test administrator is responsible for the administration of the FCAT test. As applied to the decision to seat students at the tables, he stated “[t]hat would have been [Mr. Bacca‟s] responsibility.”
Ms. Altman admitted that there was no evidence that Ms. Sanders ever directed that students sit less than three feet apart.
The School Board has alleged that Ms. Sanders violated the DOE Manual regarding the seating of students for testing. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible
evidence.
Partitions
Although not pled with specificity, the School Board argued that problems with seating -- if they had been proven --
could have been resolved if partitions had been used to separate students seated at the tables.
Ms. Williams stated that “[w]e‟ve been given permission from the District coordinator to use partitions in cases where we can‟t sit them 3 feet apart.” Mr. Scott admitted that there was nothing in the DOE Manual that allows the use of dividers or partitions. Having reviewed the DOE Manual, the undersigned agrees that it does not address the issue.
During the Writer‟s Camp, partitions were not used to separate or divide students seated at a table.
Ms. Hurst testified that it would not be appropriate to practice without dividers or partitions at tables, and then administer an exam with partitions and dividers in place. To do so would subject the students to different conditions, which would likely reflect on their performance.
Ms. Williams first discussed the issue of partitions with Mr. Bacca on Friday, February 24, 2012. While Writer‟s Camp was ongoing, Ms. Williams entered Harris Hall, apparently for the first time after she became aware of the FCAT test. She expressed her concern with student seating. Her concern was directed to the effect that improper seating arrangements might have on her certificate.
Ms. Williams made her statements in the presence of the students who were participating in Writer‟s Camp.
Ms. Kennell testified that Ms. Williams “[w]asn‟t any louder than she normally is.” Ms. Kennell thought that she may have been loud enough for students to hear, though she could not be certain if they did. In the investigative report, Mr. Bacca was reported to have stated that Ms. Williams expressed her concern that the decision to not use partitions would cause someone to lose their job in the presence of students, and that her statement had impacted the students in a negative way.
Mr. Bacca‟s statement as set forth in the investigative report is corroborated by Ms. Kennell‟s testimony, both of which are accepted.
By the time Mr. Bacca brought the issue of partitions to Ms. Sanders‟ attention, the practice testing was complete. Mr. Bacca and Ms. Sanders discussed the fact that the students had not practiced with partitions, which was a concern.
Ms. Sanders recognized that dividers are not mentioned in the DOE Manual or DOE directions. She noted the size of the room, and thought that as long as the students were spaced out, they could be accommodated without dividers. There is no evidence that Mr. Bacca suggested that students could not be appropriately seated. For those reasons, it was decided that partitions would not be needed.
Ms. Sanders understood that Mr. Bacca related their discussion to Ms. Williams. Ms. Williams did not thereafter
seek to express her disagreement to Ms. Sanders, or to otherwise ask Ms. Sanders to explain the decision to her.
Since the issue of student seating had been discussed as early as the pre-FCAT staff meeting, and since no one suggested to Ms. Sanders that students could not be seated with plenty of space, Ms. Sanders reasonably understood that the issue was being managed by the test administrators.
Ms. Williams testified that she approached
Ms. Sanders at a party being held at the home of “Pastor G” on Sunday, February 26, 2012, to inquire about where she could obtain some partitions. The alleged discussion was not corroborated by Ms. Sanders, who had no recollection of having had a discussion with Ms. Williams regarding partitions until the morning of the test. Given the totality of the evidence in this proceeding, the undersigned credits the testimony of
Ms. Sanders.
The investigative report indicates that Ms. Williams sent an e-mail to four teachers late in the evening of Sunday, February 26, 2012, indicating that she was in search of partitions to use on the following Tuesday morning.
At some point prior to the FCAT test, Ms. Williams asked Ms. Turner if she knew where she could get some partitions. The most reasonable inference that can be drawn from the evidence is that the inquiry was made on Monday,
February 27, 2012. Ms. Turner directed Ms. Williams to a third- grade teacher that she believed may have had some -- either
Ms. Marcham or Ms. Boney. The discussion was limited to who might have had partitions, not whether or not they should be used. There is no evidence that Ms. Turner advised Ms. Sanders of the discussion.
On Monday afternoon, Ms. Williams and Ms. Boney had a discussion regarding partitions. Ms. Boney had some partitions, but they were too flimsy. They discussed trying to get better ones and taping them down to the tables. In Ms. Boney‟s opinion, the effort to get partitions was not planned out.
By the morning of February 28, 2012, Ms. Kennell had located some pre-made partitions, and had some that had been made the day before by substitute teachers. She brought them to Harris Hall. She believed that she had plenty of time to go around and ask for more partitions. Her attempt would have been rushed, but she felt that she could have done it.
Minutes before the test was to start, when
Ms. Sanders had already begun speaking with students, Ms. Boney appeared in Harris Hall with some free-standing three-fold partitions. Others available on the morning of the test would have to have been taped down.
Ms. Williams appeared at Harris Hall well after 9:00 a.m. on the morning of testing with the intent to set up
partitions. As to the reason for her hurried and last minute efforts, Ms. Williams testified that “[w]e couldn‟t set them up prior to [Tuesday morning] because we have car riders coming in and out of [Harris Hall] every day.” That purported reason is not consistent with the evidence as to the availability of partitions prior to the morning of the FCAT test.
Ms. Williams did not know whether the number of partitions gathered up by Ms. Kennell and Ms. Boney was sufficient. Even as she was directed to return to her office, Ms. Williams stated to Ms. Sanders that “I don't know if there are enough partitions.” There is no competent, substantial evidence that, even if partitions were necessary, Ms. Williams had arranged for a sufficient number to be available before testing was to begin.
Ms. Williams expressed her belief that in the few minutes remaining before testing was to begin, she could have counted out the partitions, gotten more if necessary, and placed the partitions and taped them to the tables without distracting students or disrupting test procedures. Ms. Williams‟ belief is far-fetched.
After her arrival in Harris Hall, Ms. Williams commenced gathering up and placing partitions, not knowing whether there were enough to go around, in a hurried and agitated manner. Ms. Sanders justifiably felt that
Ms. Williams‟ actions were detrimental to the students, and she did not want them to be upset before the testing began.
Ms. Sanders instruction to Ms. Williams to return to her office so that testing could commence was an appropriate way of dealing with the issue given Ms. Williams rushed and disruptive efforts. It was not done with intent or effect of taking over the duties of the school assessment coordinator, or of assuming the responsibility of seating students.
There is no evidence that Ms. Sanders‟ decision to forego the use of partitions was made with any understanding that students could not be appropriately seated at the tables and chairs available. She did not believe that partitions were allowed by the DOE Manual -- which they do not appear to be -- and was not aware of Mr. Scott‟s ad hoc determination that they were allowable.
There is no evidence that Ms. Sanders acted in any way except that calculated to be in the best interests of the students. Her actions were not designed or intended to encourage cheating amongst the students, to influence the test results, or for any improper purpose.
The School Board did not allege the issue of partitions as a separate basis for its disciplinary decision apart from that of student seating. To the extent the issue is determined to be included as a basis for discipline, the School
Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that the decision to forego the use of partitions was unreasonable or improper under the circumstances, or that the decision violated any provision of the DOE Manual.
Visual aids not removed or covered in testing room
The Notice of Discipline alleged that Ms. Sanders failed to ensure that visual aids in Harris Hall were removed or covered prior to the administration of the test.
During Writer‟s Camp, students practiced writing and did sample tests. As the camp progressed, certain pieces that were done by students were taped to the wall of Harris Hall, along with maps and materials related to local colleges and universities, and a large sign that said “Mapping Our Way to a
“6”!”
The papers and decorations from Writer‟s Camp
remained on the wall on the day of testing and after.
As indicated previously, it is regarded as a sound practice for a school assessment coordinator to inspect the testing venue a day or two before the test, a practice acknowledged as appropriate by Mr. Scott. In that regard, the DOE Manual directs the school assessment coordinator as follows: “In your walk-through of the school prior to testing, check for
and remove all unauthorized visual aids posted in classrooms or affixed to student desks.”
Ms. Altman confirmed that it is the school assessment coordinator's responsibility to remove any unpermitted visual aid from the walls of the testing venue.
As the trained school assessment coordinator,
Ms. Williams was in the best position to recognize whether the papers and decorations were a problem, particularly since she had failed to conduct training for the test administrators and proctors that may have refreshed their knowledge of the issue.
Ms. Williams testified that she could not inspect Harris Hall on the Monday prior to the test because students were, according to the schedule, having Writer‟s Camp until 11:00 a.m. She testified that she could not perform her duty of walking through Harris Hall after Writer‟s Camp was done for the day because “I believe I had a meeting off campus, so I was going to do things Tuesday morning.” That explanation is not credible. Ms. Williams met with Ms. Boney to discuss partitions, and distributed the DOE Manuals to test administrators on the Monday afternoon prior to the FCAT test. There was no suggestion that a purported “meeting off campus” interfered with those on-campus activities. The evidence demonstrates that Ms. Williams had time to inspect Harris Hall if she had been interested enough to do so. Instead, she
neglected her duty to inspect Harris Hall in any meaningful or timely manner prior to testing.
Ms. Williams stated that she had no time to notice the items on the wall upon her appearance in Harris Hall on February 28, 2012, because she was told by Ms. Sanders to leave. Ms. Williams‟ suggestion that in the few minutes before testing was to commence she could have performed all of her duties regarding the testing venue that she should have done days in advance is unrealistic and rejected. Furthermore, there was no testimony as to how the assembled students may have reacted to a rushed and hurried act of tearing down their work, but common sense suggests that it would have been distracting at best, and likely upsetting to some.
The DOE Manual provides that it is the responsibility of the test administrator to:
Remove or cover all visual aids on student desks or displayed in the room, including word lists, spelling lists, word definitions, punctuation charts, transitional devices, organizational patterns, etc. Students may not have access to any unauthorized aids. Discuss any concerns with your school assessment coordinator.
Ms. Kennell stated that the materials were not something that would be used by a teacher for instructing children. She understood that there were to be no instructional
materials on the walls, but saw no need to take down the papers and decorations.
Ms. Nelson was in Harris Hall a few days before the administration of the FCAT test to make sure the room was ready for testing. Ms. Nelson could not recall what was on the walls, but had she seen anything inappropriate, she would have taken it down or covered it up.
Ms. Boney testified that she thought the materials were testing violations, but did not see fit to remove them because “[i]t wasn't my duty to take them off.” Not only did Ms. Boney take no steps to act on her purported concern, she did not tell anyone of her belief that the papers and decorations might be a violation.
When Ms. Sanders entered Harris Hall on the morning of the test, her purpose was to deliver her “pep talk” to the children and leave. She did not inspect the room, and did not notice what was on the walls. No one, including Ms. Boney, suggested to Ms. Sanders that there was anything posted that would have been a concern.
Having had an opportunity to review the photographs of the papers and decorations, Ms. Sanders did not believe that they were instructional materials. Since the materials contained no information regarding the prompt that was to be the subject of the February 28, 2012, test, she saw no reason to
believe that the papers would help the students to do well on the test.
The papers and decorations from Writer‟s Camp do not correspond to the examples of prohibited visual aids provided by the DOE, i.e., they were not word lists, spelling lists, word definitions, punctuation charts, transitional devices, or organizational patterns. The greater weight of the evidence demonstrates that the papers and decorations were not unauthorized visual aids.
The School Board has failed to prove, by a preponderance of the evidence, that the materials on the walls were unauthorized visual aids, that Ms. Sanders ever saw the papers and decorations, or that Ms. Sanders, rather than the assessment coordinator or test administrators, was responsible for removing any such materials.
Seating charts not properly maintained
The Notice of Discipline alleged that Ms. Sanders failed to ensure that seating charts were properly maintained.
The February 28, 2012 FCAT test was the first FCAT test for which student seating charts were required.
During the pre-FCAT planning meeting that
Ms. Williams chose to skip, the requirement that student seating charts were to be made by the test administrators was briefly discussed. Ms. Kennell testified that, despite her attendance
at the pre-FCAT planning meeting, she was unaware that she had to do a seating chart because she had not received the required training from Ms. Williams.
Mr. Scott testified convincingly that it is the responsibility of the school assessment coordinator to train the test administrators to make seating charts and turn them in with the completed tests, and that it is the responsibility of the school assessment coordinator to collect the seating charts at the end of testing.
Ms. Williams admitted that it was purely her duty to communicate the need for seating charts to the teachers, and that she knew of nothing in the DOE Manual that created a duty on the part of a school principal to do anything with regard to seating charts.
Ms. Williams did not train the test administrators to make seating charts, or to turn them in with the completed tests, nor did she collect the seating charts at the end of testing.
Ms. Williams testified that she instructed the teachers “at least six times” to make sure that they prepared seating charts. Her testimony was not substantiated by any other witness, and the suggestion that she provided multiple instructions to the test administrators is not credible. The greater weight of the evidence demonstrates that Ms. Williams
gave no instruction to the test administrators regarding seating charts.
Ms. Nelson and Ms. Miller were able to glean sufficient information from the DOE Manual or otherwise to know that they were to prepare seating charts, and they did so. They did not, however, know enough to turn them in at the conclusion of testing with their testing materials. Mr. Bacca and
Ms. Kennell did not maintain seating charts.
On Friday, March 2, 2012, Ms. Williams administered the last of the make-up tests. As she prepared the tests and materials for submission to the DOE, she discovered that she did not have seating charts from any of the test administrators.
She went to each of the four test administrators to ask for seating charts. Ms. Nelson and Ms. Miller gave her their charts. Mr. Bacca and Ms. Kennell did not have seating charts for the children in their classes.
After make-up testing was complete, Ms. Turner was going to use the restroom located across the hall from
Ms. Williams‟ office. Ms. Williams was having a discussion with one of the fourth-grade teachers about missing seating charts, and they made mention of the situation to Ms. Turner.
Having never done a seating chart, and having not known of the requirement for seating charts until that moment, Ms. Turner advised Ms. Williams to figure out what she was
supposed to do. Since she was not the school assessment coordinator or a test administrator, it was Ms. Turner‟s expressed intent that the testing coordinator and the teachers having that knowledge figure out who was sitting where.
Ms. Turner testified credibly that she did not suggest that
Ms. Williams falsify the seating charts. Rather, she wanted it done accurately.
In order to meet the requirement that she submit seating charts with the other test materials, Ms. Williams decided to make up seating charts “out of the clear blue sky.” As explanation for her falsification of the seating charts, Ms. Williams asserted that she was instructed to do so by
Ms. Turner. The greater weight of the evidence demonstrates that Ms. Turner did not instruct Ms. Williams to fabricate seating charts, or to otherwise act improperly in their preparation.
Ms. Turner never discussed the issue of the seating charts with Ms. Sanders. Ms. Altman testified candidly that she uncovered no evidence or suggestion that Ms. Sanders was aware of any inaccuracy or problem in the seating charts, or that
Ms. Sanders was otherwise involved with them.
Despite the complete lack of evidence against Ms. Sanders with regard to the seating charts, Mr. Scott testified, based solely on Ms. Williams‟ self-serving
statements, that Ms. Williams fabricated seating charts “at the request of Administration, from my understanding.” Mr. Scott never interviewed Ms. Turner or anyone else from “Administration” who may have had information regarding such a serious allegation.
The undersigned would have not the least bit of hesitation in recommending the most severe sanctions available if the evidence suggested that Ms. Sanders, or any other person in authority, instructed Ms. Williams -- either directly or by any reasonable implication -- to falsify records. However, the preponderance of competent, substantial, and credible evidence in this case demonstrates that such an instruction was never given. Rather, when asked to perform her duty as the school assessment coordinator to see to it that seating charts were provided, Ms. Williams accomplished that task by simply making them up.
The School Board has alleged that Ms. Sanders failed to properly maintain seating charts for the FCAT test. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
School assessment coordinator not able to supervise make-up administrations
The Notice of Discipline alleged that Ms. Sanders prevented Ms. Williams from being able to supervise make-up FCAT test administrations.
After having departed for the day on February 28, 2012, Ms. Williams e-mailed Ms. Sanders to ask if she could come back, finish the make-ups, and pack up tests. Ms. Sanders responded in the affirmative. In general, it was Ms. Sanders‟ expectation that Ms. Williams would make sure everything for the FCAT test was properly done and turned in.
Ms. Nelson administered a make-up test on the morning of February 29, 2012. Ms. Williams should have, and could have, been on campus for that test but elected not to return since all of the make-up tests had not been completed. Ms. Williams‟ decision was hers, not Ms. Sanders‟.
Ms. Williams attended a training off-campus on
March 1, 2012. She returned to campus and administered a make- up test on the morning of March 2, 2012. She thereupon packed up and delivered the testing materials to the district office.
The evidence does not support a finding that
Ms. Sanders either prevented or discouraged Ms. Williams from supervising make-up FCAT test administrations on February 29, 2012, or otherwise.
The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment coordinator to supervise make-up test administrations. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
No training for test administrators or proctors
The Notice of Discipline alleged that Ms. Sanders failed to ensure that test administrators and proctors received training.
The DOE Manual provides that it is the responsibility of the district assessment coordinator to “ensure that all school administrators, school assessment coordinators, test administrators and proctors receive adequate training prior to test administration.” The district assessment coordinator failed to ensure that such training occurred.
The DOE Manual further provides that the school assessment coordinator is responsible for training all test administrators and proctors. The evidence demonstrates that Ms. Williams did not offer or perform training for test administrators and proctors.
Neither the DOE Manual nor any other cited authority makes it the duty or responsibility of a school principal to
conduct or ensure that test administrators and proctors have received training.
Training of school assessment coordinators was held in mid-January, 2013 for the test to be administered in late February. The idea behind offering training well in advance is to provide plenty of time to prepare for the FCAT test and conduct the test properly.
Ms. Kennell and Ms. Boney testified that training of test administrators and proctors is usually done weeks before the test.
In her February 22, 2012, e-mail, Ms. Williams asked Ms. Sanders to help her to make arrangements for training.
Ms. Sanders offered the modest assistance of Ms. Nelson and Ms. Turner. There is no evidence that such assistance was not provided. Under no reasonable assessment of the facts can Ms. Sanders‟ response to Ms. Williams be construed as an
assumption of the duties of the school assessment coordinator to train test administrators and proctors.
In lieu of training, Ms. Williams intended to provide copies of the DOE Manual to the fourth-grade teachers on the Friday before testing so they could read them over the weekend. She did not do so, blaming her neglect on Ms. Turner‟s alleged
-- but unsubstantiated -- failure to advise teachers and proctors to pick up manuals from Ms. Williams on that Friday.
No test administrator or proctor received training from Ms. Williams. All Ms. Williams did to fulfill her duty was to give the test administrators copies of the DOE Manual on the afternoon before the FCAT test. The test administrators were thereafter left to their own devices. Ms. Kennell, who left campus on Monday afternoon before school let out, did not receive the DOE Manual until the morning of the FCAT test, and did not have an opportunity to read it. In her view, things were rushed and last minute.
The evidence suggests that Ms. Williams did not give the test proctors, who were also entitled to training, a copy of the DOE Manual. Despite meeting with Ms. Williams on the afternoon of February 27, 2012 regarding partitions, Ms. Boney did not receive a DOE Manual or even minimal training. All
Ms. Boney received was the “booklet” that she was to pass along to Ms. Kennell.
Ms. Williams testified that she typed up “brief training notes,” and gave them to the test administrators along with the DOE Manuals. No other witness mentioned having received training notes. No training notes were introduced as evidence. The contents of the training notes were not described. The greater weight of the evidence indicates that training notes were not provided to test administrators.
What is clear is that Ms. Williams failed to take any initiative to perform even the most rudimentary “training,” and made no meaningful effort to timely provide DOE Manuals to the test administrators and proctors, as was her job. Her failure in that regard was in spite of, and not because of, Ms. Sanders‟ offer of assistance.
The evidence is overwhelming that Ms. Williams, due to her own neglect, failed to provide the training that was her responsibility under the DOE Manual.
No one advised Ms. Sanders that Ms. Williams had not provided training.
Ms. Altman, relying exclusively on Ms. Williams‟ account, concluded that Ms. Sanders and Ms. Nelson had prevented Ms. Williams from conducting the training. That conclusion was drawn without having interviewed Ms. Sanders or Ms. Nelson regarding FCAT training.
The investigatory conclusion that Ms. Sanders prevented, prohibited, or blocked Ms. Williams from conducting FCAT training is not supported by a shred of competent, substantial, and credible evidence. Furthermore, the suggestion that Ms. Sanders either knew of or was responsible for
Ms. Williams‟ misfeasance is without evidentiary support.
The School Board has alleged that Ms. Sanders failed to properly adhere to the requirement in the DOE Manual
regarding training for test administrators and proctors. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Allegation of Failing to Report Violations that were Known to Respondent at the Time of the Administration of the Test
The Notice of Discipline alleged that Ms. Sanders “failed to report violations that were known to [Ms. Sanders] at the time of the administration of the test.”
The evidence in this case, as recited herein, does not support a finding that Ms. Sanders failed to report violations of FCAT testing standards that were known to her at the time of the administration of the test.
Ms. Sanders appointed a school assessment coordinator who, based on past performance, she trusted to competently perform her duties. Except with regard to the disputed issue of the need for partitions -- an issue that was not proven to be a violation -- no issue regarding Ms. Williams‟ concerns with testing conditions, or of her neglect and malfeasance regarding the FCAT test, were brought to the attention of Ms. Sanders by the faculty or staff of Windy Hill.
Ms. Sanders‟ understanding of testing violations, until her receipt of the Notice of Discipline, was limited to the allegation that Mr. Bacca had learned of and divulged the
testing prompt, an allegation that was brought to her attention after-the-fact by Mr. Scott and Ms. Altman.
Ms. Sanders knew of no irregularities in the administration of the February 28, 2012, FCAT test at the time of the administration of the test. The suggestion that
Ms. Sanders had taken over the duties of the school assessment coordinator, and that knowledge of alleged testing violations should be therefore imputed to her, is not supported by any competent, substantial, and credible evidence.
The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders failed to report violations that were known to her at the time of the administration of the test.
Allegation that Respondent Made Inappropriate Comments to Staff Regarding the Investigation of the Reported Violations
The Notice of Discipline alleged that Ms. Sanders “made inappropriate comments to staff regarding the investigation of the reported violations.”
On or about March 6, 2012, Ms. Altman advised Ms. Sanders of the investigation. She did not reveal the
precise nature or target(s) of the investigation, only that it involved teacher improprieties related to the administration of the FCAT test.
March 7, 2012, was an early release day. After students were released for the day, Ms. Sanders attended a regularly scheduled early-release staff meeting. All teachers were required to attend.
The allegation that Respondent made inappropriate statements to staff came as the result of her statements at the faculty staff meeting. Since the School Board did not specify what comments were “inappropriate,” or what might make a comment “inappropriate,” the allegation is so vague and non-specific as to raise issues of a lack of meaningful notice and due process. However, having heard the recording of the meeting, reviewed the transcript, and taken testimony from attendees, the undersigned is prepared to make findings as to whether any comment might reasonably be construed as “inappropriate,” given the facts of this case.
Ms. Sanders was never interviewed about her allegedly threatening and inappropriate comments.
The staff meeting was taped by one of the attendees.
Thus, a record of exactly what was said and not said was available. Ms. Altman testified that she learned of the recording during the investigatory interviews, and spoke to the person who had the recording. However, in one of the more baffling elements of the investigation, neither Mr. Scott nor Ms. Altman obtained a copy of the recording, and never listened
to it before making their conclusions as to what was said by Ms. Sanders. Thus, Mr. Scott and Ms. Altman proceeded to form conclusions regarding statements made at the meeting without any reference to the available best evidence of that meeting.
Comments Regarding Discussions of the Investigation, and Progressive Discipline for a Violation
While she was on the Windy Hill campus conducting interviews, Ms. Altman advised Ms. Sanders that she should instruct her staff that they were not to discuss the investigation, and that progressive discipline could result if they discussed the investigation.
Ms. Altman testified that she intended Ms. Sanders to advise only the handful of teachers that had been interviewed that they were not to discuss the investigation. Ms. Sanders testified that she understood Ms. Altman‟s advice to be that she was “to pull my staff together and have a conversation with them about an open investigation and that -- how serious that was and that they were not to talk about [the] open investigation.”
Ms. Sanders‟ interpretation was reasonable. She thereafter complied with Ms. Altman‟s advice.
When Ms. Sanders appeared at the staff meeting, she was very emotional as a result of the allegations directed towards the fourth-grade teachers. She expressed her trust that
the fourth-grade teachers had done nothing improper, and asked the faculty to rally their support.
Ms. Sanders dutifully related Ms. Altman‟s instruction that faculty members were not to discuss the investigation. Ms. Sanders included co-workers, friends, and family in her admonition. The instruction that faculty could not discuss the matter with family members may have been overly restrictive, but it was not improper or inappropriate.
Ms. Sanders believed it to be warranted, given the seriousness of the allegations, and it was a restriction that she complied with herself.
Ms. Sanders also related Ms. Altman‟s instruction that discussing the investigation could result in progressive discipline. Progressive discipline is a means of administering discipline in steps, starting with a verbal warning, then a written reprimand, proceeding to suspension, and eventually termination. Based on her knowledge of other investigations, Ms. Sanders viewed the instruction provided to the faculty as a first-step verbal warning of the prohibited conduct. She understood that a breach of the prohibition would thus be subject to discipline at the next step. Ms. Sanders‟ expression of her understanding, which was given in an effort to keep her teachers from getting into trouble, was not inappropriate.
Due to the vagueness of the School Board allegation, certain of the conclusions and statements referenced in the investigative report and witness testimony must be addressed.
Ms. Boney testified that Ms. Sanders privately asked her to pray before the staff meeting, and publically asked her to pray at the end of the meeting. Ms. Sanders did not corroborate Ms. Boney‟s testimony regarding a pre-meeting prayer, and such a private request -- if made -- was not during the faculty meeting and would not support the allegation as pled. The recording of the faculty meeting, which is the best evidence of the meeting, provides no evidence of a request having been made during the meeting. Thus, the allegation that Ms. Sanders asked Ms. Boney to pray, such as it is, is not supported by a preponderance of the evidence.
Ms. Williams testified that Ms. Sanders stated that “nothing was anonymous and she would find out who made the phone call.” A simple review of the recording would have revealed her statement to be false. Ms. Sanders commented on the fact that the complaint was made anonymously, and stated her understanding that calls made to the district office were not anonymous to the district because the district used caller ID. Contrary to
Ms. Williams‟ account, Ms. Sanders plainly stated during the meeting that “I don‟t know who the individual is, and, frankly, I don‟t want to know . . . . And they‟re not going to tell me
who it is. . .” Furthermore, the meeting concluded with her stating that “[t]his is not going to become a witch hunt. This is no longer about the person who called in the report. We‟re going to walk out this door and get back up because what‟s done is done.” Thus, any suggestion that Ms. Sanders intended to ferret out the source of the phone call as stated by
Ms. Williams is completely unfounded.
Ms. Kennell testified that Ms. Sanders said that if any “snoops” came on campus, the teachers should not talk to them but should ask for a lawyer, a statement that was memorialized in the investigative report. The statement has no basis in fact. The instruction given by Ms. Sanders was clearly that staff was not to discuss the investigation with “family, your friends, your neighbors,” or with other staff members. There was no reference to lawyers at all. Having listened to the recording and read the transcript, and having heard testimony from attendees, the undersigned finds nothing to support that Ms. Sanders suggested in any way that staff was not to cooperate with the investigation.
Ms. Young testified that “some of the comments were inappropriate . . . the tone of the conversation and certainly that the way the message was received by those who have shared this information was very threatening.” Although she read the transcript,6/ Ms. Young admitted that she had not listened to the
recording of the meeting. She was therefore in no position to gain a sense of the tone of the conversation. Had she listened to the recording, she would have heard expressions of support and determination, laughter, and positive comments from a faculty faced with difficult circumstances. While Ms. Sanders was emotional and upset, and tended to repeatedly drive home Ms. Altman‟s instructions, her comments, taken in their entirety and in context were not inappropriate or threatening. If some perceived Ms. Sanders‟ comments as threatening, it was not due to the substance or delivery of the comments themselves.
Ms. Young also testified that Ms. Sanders‟ statements caused “great concern by the teachers that there would be some type of retribution.” There is no evidence whatsoever in the record of this proceeding that would support an attribution of retaliatory intent or conduct on the part of Ms. Sanders, and the suggestion that faculty members had legitimate and well- founded fears of retaliation is rejected.
The allegation regarding Ms. Sanders‟ statements at the March 7, 2012, faculty meeting appears to be directed to the supposition that she made her statements with the intent to intimidate staff or to discourage others from reporting illegal conduct regarding the FCAT. That conclusion cannot be reasonably drawn from the record. Having heard the recording of the meeting, and the testimony of the participants, it is clear
that Ms. Sanders delivered an accurate accounting of what she had been told to do by Ms. Altman. There is no competent, substantial, and credible evidence in the record of this proceeding that Ms. Sanders would not cooperate, or would encourage others to not cooperate with the investigation.
Furthermore, if staff was “intimidated,” their intimidation was due to their own subjective but incorrect impressions of
Ms. Sanders‟ comments.
The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding a prohibition against discussing the investigation, and the discipline for a breach of the prohibition. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Comments Regarding Ms. Sanders‟ Faith, including Biblical References
The School Board also appears to contend that
Ms. Sanders‟ references to her faith, including recitation of verses from the Bible, constituted a violation of standards applicable to school administrators. How such comments might be construed as being ones “regarding the investigation of the reported violations” is unclear. In any event, both Mr. Scott and Ms. Young testified that references to religion and scripture at a faculty staff meeting were “inappropriate.”
The only standard referenced in the Notice of Discipline to which a reference to one‟s faith and to scripture might reasonably apply is rule 6B-1.001(3), which has since been transferred to rule 6A-10.080(3), and which provides that:
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.
Thus, the School Board‟s allegation suggests that Ms. Sanders‟ references to her faith and scripture was conduct that was, to a degree, unethical.
The March 7, 2012, faculty staff meeting, coming close on the heels of her being notified of the allegation that a member or members of her staff had been alleged to have cheated in the administration of the FCAT, was a troubling matter for Ms. Sanders. Ms. Sanders acknowledged that she was very emotional by what she perceived as an unwarranted complaint against a group that she regarded as her “family.” She expressed concern not only for the fourth-grade teachers involved, but for the effect that allegations of cheating would have on the students at Windy Hill.
In dealing with the issue, Ms. Sanders presented a description of her beliefs. She made it clear that she was not trying to tell anyone what to believe, but was offering it
“because this is the only way I know that I can do this job everyday.” The context and words of her comments made it clear that she was not proselytizing. Rather, as stated by
Ms. Sanders, “it was not to persuade them. It was to let them know this is bad, I'm upset, you're upset . . . . But this is who I am. If you don't believe what I believe, that's okay.”
The undersigned recognizes the historical precedent and importance of the doctrine generally known as the separation of church and state, which derives from the establishment clause of the United States Constitution7/ and the Florida Constitution.8/ The question in this case, however, is not whether Ms. Sanders‟ comments may have violated the establishment clause -- a question best suited for resolution by the judicial branch -- but whether a non-proselytizing reference to one‟s faith and to scripture, delivered in a meeting of adult faculty and in the context of a trying and emotional occurrence, results in a conclusion that an educator has failed to strive to “achieve and sustain the highest degree of ethical conduct” so as to warrant the imposition of disciplinary sanctions.
Ms. Sanders stated that, she had done the best of her ability to handle a very difficult situation. It is clear that her quoting of scripture was not intended to bring anyone to her point of view. Though her emotion and concerns could have, and perhaps should have, been channeled differently, neither the
substance nor the delivery of her comments at the March 7, 2012, faculty meeting was “inappropriate” under the circumstances, nor were they less than “ethical conduct.”
The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding the investigation of the reported violations as a result of her references to her faith and to scripture so as to violate applicable provisions of the Code of Ethics. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Violations of the Code of Ethics Rule 6B-1.001(2)
The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(2), which has been transferred and now exists as rule 6A-10.080(2). That rule provides that:
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.
Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that Ms. Sanders‟ actions were motivated by her professional and personal concern for the students at Windy Hill, particularly those involved in the FCAT test. The
greater weight of the evidence also demonstrates that
Ms. Sanders‟ actions with regard to the February 28, 2012, FCAT test and the subsequent investigation of alleged testing irregularities constituted a reasonable and appropriate exercise of her best professional judgment and integrity. There is no competent, substantial and credible evidence to the contrary.
The School Board has alleged that Ms. Sanders failed to direct her primary professional concern to the students at Windy Hill and for the development of the students‟ potential, and that she failed to exercise her best professional judgment and integrity. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Rule 6B-1.001(3)
The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(3), which has been transferred and now exists as rule 6A-10.080(3). That rule provides that:
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.
Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that, with regard to the February 28,
2012, FCAT test and the subsequent investigation of alleged testing irregularities, Ms. Sanders acted in a manner that was designed to, and did, achieve and sustain the highest degree of ethical conduct. There is no competent, substantial and credible evidence to the contrary. Given the facts of this case, there is no reason why Ms. Sanders should not have the respect and confidence of her colleagues, of students, of parents, and of other members of the community.
The School Board has alleged that Ms. Sanders failed to achieve and sustain the highest degree of ethical conduct, and that her actions resulted in a loss of the respect and confidence of her colleagues, of students, of parents, and of other members of the community. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence.
Conclusion
The School Board failed to prove the allegations in the Notice of Discipline by a preponderance of competent, substantial evidence. Ms. Sanders did everything expected or required of a principal in administering the FCAT test and in responding to allegations of irregularities. She was, however, faced with a school assessment coordinator who thoroughly neglected her duties, and who was all too willing to deflect personal responsibility for her failings onto others. Far from
trying to find a scapegoat, Ms. Sanders‟ defense of the allegations in this case was warranted and effective. Thus, the Notice of Discipline and other charges that form the basis of this proceeding should be dismissed.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Standards
Section 1012.22(1)(f), Florida Statutes, cited by Petitioner as authority for its action, provides that a district school board shall
Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of [chapter 1012]:
* * *
(f) Suspension, dismissal, and return to annual contract status. — The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to
annual contract except as provided in this chapter.
Subsection 1012.33(1)(b), Florida Statutes, provides that a principal‟s contract “shall contain provisions for dismissal during the term of the contract only for just cause, in addition to such other provisions as are prescribed by the district school board.” Pursuant to subsection 1012.33(1)(b), just cause includes “the following instances, as defined by rule of the State Board of Education:. . . misconduct in office, incompetency, . . . gross insubordination, [or] willful neglect of duty ”
The demotion of a principal to a subordinate position constitutes their removal and dismissal from the position of principal. Thus, the provisions of section 1012.22 and section 1012.33 apply to this proceeding.
Florida Administrative Code Rule 6A-5.056(2) establishes the criteria for suspension and dismissal of school personnel for misconduct in office, and provides that:
“Misconduct in Office” means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6B-1.001, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student‟s learning environment; or
Behavior that reduces the teacher‟s ability or his or her colleague‟s ability to effectively perform duties.
Florida Administrative Code Rule 6A-5.056(3) establishes the criteria for suspension and dismissal of school personnel for incompetency, and provides that:
“Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
“Inefficiency” means one or more of the following:
Failure to perform duties prescribed by law;
Failure to communicate appropriately with and relate to students;
Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;
Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or
Excessive absences or tardiness.
“Incapacity” means one or more of the following:
Lack of emotional stability;
Lack of adequate physical ability;
Lack of general educational background; or
Lack of adequate command of his or her area of specialization.
Section 1008.22(4) provides, in pertinent part, that:
. . . a district school board shall prohibit each public school from suspending a regular program of curricula for purposes of administering practice tests or engaging in other test-preparation activities for a statewide assessment. However, a district school board may authorize a public school to engage in the following test-preparation activities for a statewide assessment:
(e) Administering a practice test or engaging in other test-preparation activities for the statewide assessment which are determined necessary to familiarize students with the organization of the assessment, the format of the test items, and the test directions. . .
Section 1008.24(1) provides in pertinent part, that:
It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education . .
. or, with respect to any such test, knowingly and willfully to:
Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing;
Fail to follow test administration directions specified in the test administration manuals; or
Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section.
The terms “knowingly” and “willfully” were not defined by the legislature when it enacted chapter 1008, Florida Statures. Thus, to construe their meaning, one must refer to the terms‟ plain and ordinary meanings, which are discerned from a dictionary. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 104 (Fla. 2011).
The term “knowingly” is defined as:
With knowledge; consciously; intentionally.
A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Black‟s Law Dictionary 784 (5th ed. 1979).
The term “willful,” of which “willfully” is the adverb form, is defined as:
Proceeding from a conscious motion of the will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.
An act or omission is “willfully” done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with pad purpose either to disobey or disregard the law.
Black‟s Law Dictionary 1434 (5th ed. 1979).
The term “knowingly and willfully” when used “in reference to violation of a statute, means consciously and intentionally.” Black‟s Law Dictionary 784 (5th ed. 1979).
Rule 6B-1.001, which has been transferred and now exists as rule 6A-10.080, and is entitled Code of Ethics of the Education Profession in Florida, provides, in pertinent part, that:
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.
It is well-established that the terms of the Code of Ethics of the Education Profession in Florida are "so general and so obviously aspirational as to be of little practical use in defining normative behavior." Miami-Dade Cnty. Sch. Bd. v. Brenes, Case No. 06-1758 (Fla. DOAH Feb. 27, 2007; Miami-Dade Cnty. Sch. Bd. Apr. 25, 2007). Thus, substantive violations are generally measured against the more substantive and specific Principles of Professional Conduct for the Education Profession
in Florida in rule 6A-10.081. The School Board did not allege any violations of rule 6A-10.081.
The Burden and Standard of Proof.
Petitioner seeks to impose disciplinary sanctions on Respondent which do not involve the loss of a license or certification. Thus, Petitioner has the burden of proving the allegations in its Notice of Discipline by a preponderance of the evidence. Cropsey v. Sch. Bd. of Manatee Cnty., 19 So. 3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch. Bd. of Dade Cnty., 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill v. Pinellas
Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo
v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).
The preponderance of the evidence standard “is defined as „the greater weight of the evidence,‟ Black's Law Dictionary 1201 (7th ed. 1999), or evidence that „more likely than not‟ tends to prove a certain proposition.” Gross v.
Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000). See also Haines v. Dep‟t of Child. & Fams., 983 So. 2d 602, 606 (Fla. 5th DCA 2008).
The allegations of fact set forth in the charging document are the facts upon which this proceeding is predicated. Trevisani v. Dep‟t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005). See also Cottrill v. Dep‟t of Ins., 685 So. 2d 1371,
1372 (Fla. 1st DCA 1996). Due process prohibits the School Board from disciplining a teacher based on matters not specifically alleged in the notice of charges. See Pilla v. Sch.
Bd. of Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995);
Texton v. Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see also Sternberg v. Dep't of Prof'l Reg., 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985) ("For the hearing officer and the Board to have then found Dr. Sternberg guilty of an offense with which he was not charged was to deny him due process."). Thus, the scope of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep‟t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).
Conclusion
As set forth in the findings of fact herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent violated any of the specific statutes, rules, or provisions of the DOE Manual pled in the Notice of Discipline.
As to alleged violations of 1008.24(1)(e)-(g), and as set forth in the findings of fact herein, even if facial violations of the conduct referenced in those sections had been proven -- which they were not -- Petitioner failed to prove, by a preponderance of the evidence, that any such violation by Respondent was done knowingly and willfully.
As set forth in the findings of fact herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent “directed staff to violate testing protocols related to the administration of the FCAT Writing.”
As set forth in the findings of fact herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent “subsequently failed to report violations that were known to [her] at the time of the administration of the test.”
As set forth in the findings of fact herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent “made inappropriate comments to staff regarding the investigation of the reported violations.”
For the reasons set forth herein, the Notice of Discipline should be dismissed in its entirety.
The parties have not cited to specific authority for the undersigned to award reinstatement and back pay as a remedy for Respondent‟s wrongful demotion. However, to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes such relief, Ms. Sanders should be reinstated and awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order dismissing the Notice of Discipline in its entirety.
DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY 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 August, 2013.
ENDNOTES
1/ Mr. Scott testified that the exception for test preparation activities in section 1008.22(4)(e) means that allowable test preparation may be for “a day, not a week.” When asked from what source one might glean that information, Mr. Scott stated “[t]hat would have been -- I'm just telling you that that's the interpretation that I'm trained with as the State assessment coordinator.” There is nothing in section 1008.22(4) or otherwise in the record of this proceeding to substantiate the unwritten interpretation described by Mr. Scott. Given the totality of the evidence, including the fact that the Windy Hill Writer‟s Camp was a model for other schools, Mr. Scott‟s interpretation regarding the “one day” limitation that he has applied to section 1008.22(4)(e) is not accepted.
2/ Mr. Scott did not see the February 22, 2012, e-mail during his investigation.
3/ Mr. Scott testified that he did not know that Ms. Williams had gone to Ms. Green‟s office, testifying that “[a]s far as I knew, she was in her testing office.” Thus, not only did
Mr. Scott and Ms. Altman fail to interview Ms. Turner, a key witness to the events of the day, they did not interview Ms. Green, stating that “[t]his is the first I've ever heard [of] a speech therapist.”
4/ Although the decision to test in Harris Hall was not listed as an allegation supporting the decision to demote Ms. Sanders in the Notice of Discipline, Petitioner has implicitly argued that testing in Harris Hall was improper.
As indicated previously, the decision to test in Harris Hall was made as a collaborative decision at the pre-FCAT planning meeting. The basis for the decision was that students had been going to Harris Hall for writing instruction since the beginning of the year, and that testing in the same venue would maximize the students‟ level comfort and familiarity in their surroundings while being tested.
It is generally recognized that conducting testing in the same environment as instruction and training is beneficial, and allows the students to be comfortable and at ease when they take what is undoubtedly a stressful test. As stated by Ms. Hurst:
when it gets close to test time, I want [the students] to know what the paper is going to look like. I want them to know where the prompt is going to be. I want them to see the paper that they're going to write on. I want them to feel what it's going to be like. We did test simulations in every place that I've worked so that kids could feel like, yeah, I know what's going to happen, now all I need to do is take my knowledge and put it on this sheet of paper.
There is no evidence that the decision to test in Harris Hall was made for any reason other than the best interests of the students. It was not done to facilitate cheating, to influence the test results, or for any improper purpose whatsoever. The fact that the test scores have been validated suggests that the DOE agrees.
The DOE Manual makes it the responsibility of the school assessment coordinator to “[t]est in classrooms whenever possible, and to “[a]void testing students in areas designated for large groups (e.g., the cafeteria, gymnasium, auditorium, library).” However, the DOE Manual also makes specific provision for testing large groups of up to 90 students in a room. In that case, proctors are required for rooms with 31 or more students, and “[i]t is recommended that a proctor be assigned to rooms with 30 or fewer students whenever possible.” Thus, the DOE Manual is inconsistent and unclear in its instruction regarding testing in classrooms versus testing in “large groups.”
The fact that Petitioner did not plead the issue of testing in Harris Hall as a specific basis for the disciplinary decision prevents it from being used as support for that decision.
However, had it been specifically pled, the School Board failed to prove by a preponderance of the competent, substantial, and credible evidence, that testing in Harris Hall was a violation of any specific standard.
5/ Ms. Boney testified that “as far as I could tell,” students were seated closer than three feet apart. Given Ms. Boney‟s inability to accurately estimate the length of the tables, her estimate of student spacing does not rise to the level of competent, substantial evidence necessary to support the allegation.
6/ The transcript was prepared on April 15, 2013, well after the issuance of the Notice of Discipline, the commencement of litigation, and the scheduling of the final hearing. Thus, her review of the transcript was undertaken in the context of preparations for the pending final hearing.
7/ U.S. Const. amend. I.
8/ Fla. Const. art. I, §2.
COPIES FURNISHED:
Katy A. Harris, Esquire Office of General Counsel
117 West Duval Street Jacksonville, Florida 32202
T. A. Delegal, III, Esquire Delegal Law Offices, P.A.
424 East Monroe Street Jacksonville, Florida 32202
Nikolai P. Vitti, Superintendent Duval County School Board
1701 Prudential Drive
Jacksonville, Florida 32207
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514
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 should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 2013 | Agency Final Order | |
| Aug. 23, 2013 | Recommended Order | Petitioner failed to prove, by a preponderance of the evidence, that Respondent committed the acts alleged in the Notice of Discipline. The Notice of Discipline should be dismissed. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs CAROL M. GONZALEZ, 13-000441 (2013)
BROWARD COUNTY SCHOOL BOARD vs HARRIET PARETS, 13-000441 (2013)
BROWARD COUNTY SCHOOL BOARD vs NICOLE POLLINO, 13-000441 (2013)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ANNETTE JONES WALKER, 13-000441 (2013)
JIM HORNE, AS COMMISSIONER OF EDUCATION vs STACY STINSON, 13-000441 (2013)
