STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWANNEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15-0659TTS

MELISSA MAPP-FRANCISCO,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in Live Oak, Florida, on March 23 and April 2, 2015, before Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Deborah Stephen Minnis, Esquire

Opal L. McKinney-Williams, Esquire Ausley & McMullen, P.A.

Post Office Box 391 Tallahassee, Florida 32302

For Respondent: Archibald J. Thomas, III

4651 Salisbury Road, Suite 255

Jacksonville, Florida 32256 STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent's employment with the Suwannee County School Board.

PRELIMINARY STATEMENT

In or around December 2014, Petitioner Suwannee County School Board ("Petitioner" or "School Board") notified Respondent that it was initiating proceedings to terminate her employment. Respondent timely requested a formal administrative hearing to contest the School Board's intended action and, on February 9, 2015, the matter was referred to the Division of Administrative Hearings ("DOAH") for further proceedings.

The gravamen of the School Board's Administrative Complaint ("Complaint") is that, while proctoring a series of on-line "QuickBooks" certification examinations during the spring of 2014, Respondent knowingly and improperly allowed students to share answers, thereby violating, inter alia, the Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6A-10.080) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6A-10.081).

As noted above, the final hearing was held on March 23 and April 2, 2015, during which the School Board presented the testimony of ten witnesses (Theodore Roush; Angelia Stuckey; Walter Boatright; Dr. William Brothers; and students N.T., K.G., A.T., A.C., C.S., and S.C.) and introduced 23 exhibits, numbered

1 through 12; 14 through 18; 20; 21; and 24 through 27.

Respondent testified on her own behalf, called one other witness

(Chastity Thomas), and introduced six exhibits: A, B, I, J, K, and P. At the conclusion of the hearing, the undersigned granted the parties' request to set the deadline for the submission of proposed recommended orders at 14 days from the filing of the hearing transcript.

Transcripts of the March 23 and April 2 proceedings were filed, respectively, on April 20 and April 17, 2015. Both parties timely filed proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.

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

alleged misconduct.

FINDINGS OF FACT

1. Introduction

   
   

   1. Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Suwannee County, Florida.

   2. Beginning in 2004, and at all times relevant to this cause, Respondent was employed as a teacher at the Suwannee- Hamilton County Technical Center ("SHCTC"), an institution operated by the Suwannee County School Board.

      
      

2. The Events

1. The relevant background facts in this matter are largely undisputed. During the time period implicated by the Complaint, i.e., the latter half of the 2013-2014 school year, Respondent's job duties included the proctoring of industry certification examinations. Such examinations included, among others, a QuickBooks certification test, which is administered online.

2. As detailed during the final hearing, the QuickBooks test was offered at SHCTC pursuant to a written agreement between Respondent and Certiport, Inc., an entity that specializes in the delivery of online examinations. The agreement contemplated, inter alia, that Respondent would comply with Certiport's policies and guidelines for administering the examination.

3. Respondent's efforts to prepare her students for the examination were twofold. First, with the assistance of N.T.——a student enrolled in Respondent's finance and business technology course at that time——Respondent prepared a study guide and disseminated it to her classes. In addition, Respondent administered multiple practice examinations, which each student could access at a computer terminal using his or her own password. Once a student demonstrated sufficient mastery of the material (as indicated by a practice score of 700 or higher),

   
   

   Respondent would, within the next day or so, administer the "actual" QuickBooks test.

4. Before proceeding further, several observations about the actual QuickBooks test are in order. Notwithstanding the School Board's assertions to the contrary, the credible evidence establishes that, unlike the practice examinations, the actual test could not be accessed until Respondent entered her personal password——which was known only to her——into the computer terminal where the student was seated.1/ It is also noteworthy that, because the students progressed through the material at different speeds, the actual exams were administered on a "rolling" basis during April 2014. Finally, and perhaps most important, the actual tests were continually plagued by a technical glitch: answers to certain questions would not upload automatically to Certiport as students proceeded through the examinations——an issue that, if not remedied quickly, would cause the tests to "time out" or lock up.2/ Respondent soon discovered, however, that such an eventuality could be prevented by prompting students to click "next" when loading problems arose.3/

5. The precise number of students who passed the actual examination will be explored below. For the moment, it suffices to say that more than two dozen students earned QuickBooks certifications; that the School Board awarded Respondent a bonus

   
   

   of $50 for each passing score; and that the 2013-2014 academic year concluded without a single student voicing any concerns to school administration regarding the manner in which Respondent administered the actual examinations.

6. Some six months later, however, students K.G. and L.W., both of whom Respondent had previously rebuked in connection with their employment at the Suwannee High School branch of First Federal Bank (hereinafter "Bulldog Bank"),4/ notified an elected member of the Suwannee County School Board that Respondent had allowed students to cheat.

7. An investigation ensued, during which the School Board obtained records indicating that 31 students had earned QuickBooks certifications during the period in question. Of those 31 students, 14 had graduated the previous June and, for all that appears, were unavailable for questioning. As such, school officials interviewed the 17 students who had yet to graduate, five of whom either denied having taken the test or claimed that no impropriety had occurred.

8. Ultimately, the School Board's investigation yielded

   
   

   12 statements that, to varying degrees, implicated Respondent of wrongdoing.5/ Notably, however, only one of the 12 statements made any distinction whatsoever between the actual examination and the practice tests6/; in other words, 11 of the 12 students

   
   

   did not specifically indicate in their statements that they received inappropriate assistance during the actual examination.

9. It is hardly surprising, then, that of the six students to testify for the School Board during the final hearing, at least three could not rule out the possibility that the test answers were supplied during the practice tests (which would not be improper) instead of the actual examination. The following excerpts from the testimony of A.T., C.S., and S.C. bring this weakness in the School Board's case into sharp relief:

   [Student A.T.]

   
   

   Q And my question is: How do you know that that test that you were referring to was not a practice test as opposed to a real test?

   
   

   A I do not know.

   
   

   * * *

   
   

   [Student C.S.]

   
   

   Q Okay. Did you receive any help on any of the actual tests?

   
   

   A That's the blurry line, too. You know, it's from the difference between the practice

   – I know we definitely helped each other during the practice, but during the actual test. I remember one of the last ones doing them alone, so.

   
   

   Q Okay. During one of the last tests, you did them alone – you did it alone?

   
   

   A Uh-huh.

   
   

   Q Did you receive any help from anyone on the actual test?

   
   

   A That's the thing. You know, it's -- it's a real blurry kind of line there.

   
   

   Q Okay. When you say "blurry line," what do you mean?

   
   

   A Like the difference between the practice and the -- the last one, the final exam.

   
   

   * * *

   [Student S.C.]

   
   

   Q How do you know the test that you were referring to as the actual test, when [N.T.] was walking around giving help, was the real test and not the practice test?

   
   

   A I don't know.[7/]

   
   

   Mar. 23 Tr., pp. 126; 159; and 183.

   
   

10. For differing reasons, the testimony of the School Board's remaining student witnesses (A.C., K.G., and N.T.) was no more persuasive. A.C., for example, testified that N.T. supplied answers during the actual test with Respondent's assent.

    However, this version of events is entirely undercut by A.C.'s claim that she loaded the actual examination using her own password——an impossibility in light of the credible evidence establishing that the students' passwords could only access practice tests.

11. For their part, students K.G. and N.T. offered accounts that are at least facially plausible: both students clearly distinguished between the practice tests and the actual

    
    

    examination; correctly acknowledged that Respondent's password was required to access the actual test8/; and asserted that, during the actual examinations (which were administered at different times), N.T. supplied answers to his fellow students at Respondent's behest.

12. Respondent, by contrast, testified that neither she, nor N.T., nor anyone else helped students cheat during the actual examinations. Although Respondent acknowledged that she enlisted N.T.'s assistance to deal with technical issues as they arose——by having him prompt examinees to click "next," which prevented the tests from timing out——she denied that students were supplied answers to actual test questions.

13. In resolving these conflicts in the evidence, it is significant that the record supplies good reason to doubt K.G.'s veracity. Specifically, Respondent credibly testified that, on more than one occasion, she reprimanded K.G. for engaging in inappropriate behavior during his service as a "manager" at the Bulldog Bank. Notably, Respondent's further assertion that K.G. reacted negatively to these rebukes, and that she attempted to remove K.G. from his position at the bank, is corroborated by the testimony of Angelia Stuckey, an assistant principal at Suwanee High School who participated in the School Board's investigation:

    Q While you were assisting with the investigation, did you ever consider whether

    
    

    the students who came forward were just disgruntled or upset with [Respondent]?

    
    

    A I did.

    
    

    Q And what did you conclude about that concern?

    
    

    A This is just my opinion. But, in my opinion, there were two students that very well could fall under that umbrella, because [Respondent] and I had many conversations beforehand concerning their employment at the bank and some things that they were not taking responsibility for.

    
    

    * * *

    
    

    Q You said you had many conversations with [Respondent] about two students who were in trouble?

    
    

    A Yes, sir.

    
    

    Q [K.G.] was one of those students? A That is correct.

    Q Well, did you have discussions with her about removing [K.G.] from the Bulldog Bank?

    
    

    A Yes.

    
    

    Mar. 23 Tr., pp. 203; 215.

    
    

14. The candor of student N.T. is likewise suspect.

    
    

    Although N.T. asserted on direct examination that he "really like[s]" Respondent and has had no difficulties with her, such testimony hardly jibes with his version of the events: that, on multiple occasions, Respondent directed him to help his classmates cheat on their actual QuickBooks examinations.9/

    
    

    Moreover, the undersigned is troubled by N.T.'s peculiar assertion that, because the supposed cheating occurred at the behest of a person in authority (i.e., Respondent), he "doesn't have a problem"10/ with the patently dishonest acts he claims to have committed.

15. The short of it is this: the undersigned finds Respondent's denial of wrongdoing to be more credible than the School Board's evidence to the contrary. Accordingly, the School Board has failed to demonstrate by a greater weight of the evidence that Respondent is guilty of the misconduct alleged in the Complaint.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

16. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    1. The Burden and Standard of Proof

       
       

17. A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been

    
    

    violated and the conduct which occasioned [said] violation." Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).

18. Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated. See Cottrill v. Dep't of Ins., 685 So. 2d 1371,

    1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg.,

    
    

    625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993).

    
    

19. In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA

    1996). The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition.

    Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000).

    
    

20. The instructional staff member's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389

    (Fla. 1st DCA 1995).

    
    

    1. The Charges Against Respondent

    
    

21. As noted previously, the School Board's Complaint charges a litany of statutory and rule violations, all of which are predicated upon the allegation that Respondent intentionally permitted students to cheat on their QuickBooks examinations. Inasmuch, however, as the School Board has not proven this essential allegation by a greater weight of the evidence, each of the charges against Respondent necessarily fails as a matter of fact. Due to this dispositive failure to proof, it is unnecessary to render additional conclusions of law. See, e.g.,

St. Lucie Cnty. Sch. Bd. v. Woodcock, Case No. 12-2755TTS, 2013 Fla. Div. Adm. Hear. LEXIS 110, *17 (Fla. DOAH Jan. 24, 2013).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Suwannee County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits.

DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015.

ENDNOTES

1/ Mar. 23 Tr., p. 287; Apr. 2 Tr., pp. 12-13.

2/ Mar. 23 Tr., pp. 284-85; Apr. 2 Tr., p. 20. In an effort to discredit Respondent's testimony on this issue, the School Board points to a March 20, 2014, e-mail from Respondent to her assistant principal, wherein she noted that the "real test is live and interactive so we have been told and should not have [] buffering or incorrect info." Pet. Ex. 24 (emphasis added). In the undersigned's view, however, Respondent's e-mail——which she authored before the actual exams were administered——reveals only her expectation that the real tests would proceed without incident. The e-mail was not, as the School Board appears to suggest, a post-hoc summary of the conditions Respondent encountered during the actual examinations.

3/ In its Proposed Recommended Order, the School Board contends that proctors are not at liberty to resolve technical problems themselves, and must instead contact Certiport for assistance. Pet'r PRO, p. 5. However, this argument is not borne out by the language of Certiport's "Test Candidate Exam Policies," which expressly authorizes proctors to address technical disturbances without the involvement of Certiport:

Please Note: In certain circumstances, the computer on which a Test Candidate is taking the exam may stop responding . . . . If a Test Candidate experiences this or any other problems, they must notify the Certiport Authorized Testing Center (CATC) Administrator and/or Proctor immediately to restart the exam. When the computer is restarted and/or the error condition resolved, the Proctor will launch the software again . . . .

Pet'r Ex. 20 (emphasis added).

4/ Apr. 2 Tr., pp. 8-11.

5/ The School Board reported its conclusions to Certiport, resulting in the invalidation of the QuickBooks certifications that had been awarded to Respondent's students.

6/ Pet'r Ex. 11.

7/ S.C.'s testimony suffers from an additional defect, namely, her assertion that she took the actual exam simultaneously with

11 other students, all of whom she claims received answers from student N.T. Mar. 23 Tr., p. 172. This account is not only implausible, but impossible, for the credible evidence establishes that only five of the computers in SHCTC's computer lab were equipped with the QuickBooks software. Apr. 2 Tr., pp. 15-16.

8/ Mar. 23 Tr., pp. 58; 101.

9/ N.T.'s supposed affinity for Respondent is further called into question by his testimony on recross examination, during which he asserted (apparently for the first time) that Respondent directed him to help students cheat not just on the QuickBooks examinations, but also on a "Virtual School class test." Mar. 23 Tr., pp. 77-78. Obviously, this allegation is not part of the instant Complaint.

10/ Mar. 23 Tr., p. 76.

COPIES FURNISHED:

Deborah Stephen Minnis, Esquire Opal L. McKinney-Williams, Esquire Ausley & McMullen, P.A.

Post office Box 391 Tallahassee, Florida 32302 (eServed)

Archibald J. Thomas, III

4651 Salisbury Road, Suite 255

Jacksonville, Florida 32256 (eServed)

Jerry A. Scarborough, Superintendent Suwannee County School Board

702 Second Street Northwest Live Oak, Florida 32064 (eServed)

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

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

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

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 15-000659TTS

Orders for Case No: 15-000659TTS