The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Respondent should be dismissed from her employment with the Dade County School System for alleged incompetency, insubordination, and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes. Respondent is a teacher on continuing contract status at Charles R. Drew Elementary School, Miami, Florida, where she has been employed by Petitioner since 1963. On March 10, 1978, she was advised by Petitioner's Assistant Superintendent for Personnel that charges of incompetency, insubordination, and willful neglect of duty had been brought against her by her Principal, Frederick Morley, which would be presented to the Superintendent for his recommendation to the School Board of Dade County. By letter of March, 1970, Respondent was advised that the Superintendent would recommend her suspension and subsequent dismissal from the Dade County Public Schools to the Dade County School board. By letter of March 23, 1978, she was provided official notification that the School Board had suspended her on March 22, 1978, and that her dismissal would be recommended to the Board on April 12 if she did not request a hearing within ten days. She did so on March 28, and on May 8, she was provided with a Notice of Charges consisting of seventeen separate charges alleging grounds for dismissal. At the hearing, Petitioner withdrew Charge 3, 5, 6, 12 and 15.
Findings Of Fact During the 1976-77 school year, Respondent was employed as a teacher of the fifth grade at Charles R. Drew Elementary School, Miami, Florida. The Principal of the school was Frederick A. Morley. On or about October 8, 1976, the Respondent failed to pick up the children of her class at the end of their physical education period. Although Respondent admitted that she was not at the designated place on time, she could not recall why she had been delayed on that particular date. (Testimony of Respondent, Morley) At the beginning of the 1976-77 school year at Charles R. Drew Elementary School, Principal Morley distributed an "Opening of School Bulletin" to all faculty members at a meeting which was attended by Respondent. This bulletin contained school policy on student discipline and corporal punishment. It provided that if such punishment became necessary, the teacher must consult with the principal or his designee prior to its use, and that one of those individuals would determine the necessity for corporal punishment and the time, place and person to administer the same. The policy statement further included the requirement that a third party adult must be present at the time the punishment was administered. Specifications to the size of the wood "instrument" for administering such punishment were set forth in the written policy as well as other guidelines as to the amount of maximum punishment, notification of parents, and the like. (Testimony of Morley, Petitioner's Exhibit 1) On November 1, 1976, Morley saw Cynthia Blue, one of Respondent's fifth grade students, crying in the hall. She informed him that Respondent had paddled her in the classroom. Respondent admitted to him that she had administered punishment to the student and he reminded her of the school policy concerning consultation with him or his designee prior to any such action. He confirmed this admonition with a written note on the same day. Respondent conceded at the hearing that, although she could not recall the incident, it was possible that she gave the student a "lick." She further testified that Cynthia Blue was an unruly student who broke rules with impunity. (Testimony of Morley, Respondent, Petitioner's Exhibit 4) Morley had a conference with Respondent on November 8, 1976, and reminded her at that time that she was obliged to follow the school guidelines on paddling students in the future. At this conference, Respondent conceded that she had not followed the school policy in this regard. However, on three separate occasions thereafter, Respondent again physically punished students without obtaining permission of the Principal or his designee. On November 17, 1976, and on January 18, 1977, she paddled students Monica Morrison and Eddie Byrd in the classroom. On both occasions, she admitted doing so to Morley and he again reminded her by written notes of her failure to follow proper procedures. (Testimony of Morley, Petitioner's Exhibits 2-3) Approximately a year later, on January 9, 1978, Respondent advised Morley that she wished to bring her student, Laurena Butler, to his office for corporal punishment. Apparently, when she arrived with the student, Morley was not there and Respondent therefore asked a nearby aide of one of the school officials to come into Morley's office and witness the spanking. Respondent then took Butler into the Principal's office and paddled her once after first missing her entirely and knocking a wooden tray off the desk and damaging it slightly. (Testimony of Morley, Respondent, Petitioner's Exhibit 5) Respondent's explanation at the hearing for her unauthorized administration of corporal punishment was that Morley was "wishy-washy" on the subject of student discipline and would never authorize her to paddle a student, or do so himself. She claimed that 75 percent of the other teachers paddled much more frequently than she, and that none of them understood the punishment policy of the school. On the one hand, she believed that she could punish a child if a third party was present, but she also testified that she understood the guidelines that required the Principal or his designee to authorize punishment. Respondent's testimony in the above regard was partially refuted by the testimony of her former students. One stated that on two occasions when he was sent to Morley for punishment by Respondent, he was paddled. Another student stated that he had been sent by other teachers to the Principal's office and been paddled about four times. These students had never seen Respondent paddle anyone, but had seen other teachers do so. They testified that she had "bad kids" in her class who made trouble by getting into fights, throwing erasers, and the like. Respondent testified that one of her problems was that she did not have the strength to paddle a child effectively and that they would laugh at her when she attempted to do so. However, she claimed that in telephone conversations with Parents of the students, she learned that they desired that their children be disciplined at school. She further stated that Morley had observed over the years that her discipline efforts were not of the best so he placed her successively in the second, fourth, fifth, and sixth grades. She believed that this made her task more difficult by having to deal with the older children. A former principal of Drew Elementary School testified that Respondent had had difficulty as a disciplinarian, as most teachers did, but that she was more effective in that regard than some of the teachers, except in instances of paddling where she had difficulty and generally produced unsatisfactory results. (Testimony of Respondent, Ford, Jones, Trimmings, Hooks). On or about September 27, 1977, a student threw a cookie box and struck Respondent while she was writing at the blackboard. The next day school security personnel questioned her on whether she had scratched the student in the altercation. She mistakenly assumed that she, rather than the student, was being investigated and became upset when discussing the matter with Morley on the day after the incident. During the course of the conversation, she uttered a vulgar word in his presence. (Testimony of Respondent, Morley, Hooks) Respondent admitted at the hearing that on or about September 28, 1977, she permitted her sixth grade class to go to their art class unsupervised. Although she did not precisely recall the incident, she theorized that it was possible that she had walked them part of the way and then gone to the school office and let them proceed alone the remaining 100 feet to the classroom. (Testimony of Respondent) On October 6, 1977, while Respondent was out of her classroom her students were noisy and disruptive, thus interfering with instruction in an adjoining classroom. Although Respondent did not recall the specific incident at the hearing, she surmised that she had been out of the room for legitimate reasons and normally would have appointed a student monitor to take charge. (Testimony of Green, Respondent.) On January 19, 1978, Respondent was informed by one of her students that the class was supposed to attend a special program in the auditorium. Respondent took the class to the cafeteria where such programs took place and found the door locked. Respondent went to the school office to ascertain whether or not a program was to take place. During this time the children were left unsupervized for several minutes and became noisy and ran in the halls. While Respondent was gone, Morley arrived and restored order. He sent for Respondent and upon her arrival asked her about the matter. Respondent, in a loud voice, said "If you would paddle these children, this wouldn't happen," shaking her finger in front of his face. A number of faculty members were present at the time. (Testimony of Respondent, Morley, Knight, Jones) Teachers are required to prepare weekly lesson plans for each subject. Those on continuing contract, such as the Respondent, are called upon to turn them in to the office several times a year without prior notice. On one occasion during the 1977-78 school year, Respondent failed to turn in her lesson plans on time. Respondent testified that she customarily prepared such plans, but on the occasion in question, had simply been late in preparing them due to the fact that she had given priority to the preparation of report cards. (Testimony of Reich, Respondent) On March 13, 1978, the aunt of one of Respondent's students, Cynthia Blue, asked Respondent if she could see the "progress folder" containing homework papers of her niece. Respondent was in the process of taking the class roll at the time and therefore did not act immediately upon the request. Cynthia's aunt thereupon summoned Morley to the classroom. Morley had told Respondent earlier that day that her class had been quiet during the preceding week when a substitute teacher was present during Respondent's absence. Respondent assumed that the children had been paddled by the substitute to insure their good behavior. Therefore, on March 13, when Morley came to the classroom regarding the question of the child's homework folder, Respondent inquired of the class if they had been paddled during the previous week. They were quiet for a moment, then burst into laughter. Respondent and one of her students testified that Morley joined in the laughter, but he denied the same. In any event, Respondent felt that she was being ridiculed and, having previously received notice that she was to be suspended on March 22, she informed Morley that she was leaving the classroom. In spite of Morley's request that she remain, Respondent departed from the school and did not return thereafter. Although approximately six school days remained prior to the effective date of her suspension of March 22, Respondent made no effort to request administrative leave of absence from School Board officials. (Testimony of Lawrence, Morley, Respondent, Trimmigs) During the period 1971-77, Respondent had satisfactory ratings on her annual evaluation forms for maintaining good discipline except for the 1971-72 school year and the 1976-77 school year, at which times they were 3.0 and 2.0 respectively, out of a maximum rating of 5.0. As found heretofore, Respondent's prior Principal had indicated that Respondent was unable to physically punish students satisfactorily, but that her overall discipline efforts over the years were similar to that of other teachers. The prior Principal was also of the opinion that Respondent was well-trained and could produce results in the classroom. (Testimony of Ford, Petitioner's Composite Exhibit 7, Respondent's Composite Exhibit 1) Respondent attributed her difficulties at the school to the existence of a personality conflict with Principal Morley and her feeling that he had singled her out for adherence to standards that he did not require of other teachers. She had requested a transfer approximately a year ago, but it was denied. Morley denied any special treatment of Respondent and the evidence fails to reveal actions on his part that were not precipitated initially by Respondent. (Testimony of Respondent, Morley)
Recommendation It is recommended that Respondent be reinstated without payment of back salary for the period of her suspension and that she be transferred to an appropriate instructional position in another school within the Dade County School System. It is further recommended that Respondent be issued a letter of reprimand by the School Board of Dade County for the established derelictions set forth in the foregoing conclusions of law and that she be admonished therein concerning a repetition of such conduct. DONE and ENTERED this 26th day of October, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael R. Friend, Esquire 44 West Flagler Street, Penthouse Miami, Florida 33130 Elizabeth du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Phyllis O. Douglas Assistant School Board Attorney Lindsey Hopkins Building 1210 Northeast 2nd Avenue Miami, Florida 33132 =================================================================
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which Petitioner claims to be substantially affected by an agency statement that allegedly violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns two sentences at page 11 of a pamphlet generated by Respondent, which is entitled "Florida's Educational Opportunities for Students with Sensory Impairments (2000)(the DOE Pamphlet)." The two sentences state that the Florida School for the Deaf and the Blind (FSDB) is an available educational option for sensory-impaired children in Florida.
Findings Of Fact Background Congress enacted the Individuals with Disabilities Education Act (IDEA) "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. Section 1400 (d)(1)(A). As a condition to IDEA funding, each state must have a policy in effect that executes the principal goal of the Act, which is to assure "all children with disabilities [have] the right to a free appropriate public education." 20 U.S.C. Section 1412(1). In 1997, Congress substantially amended IDEA. On March 12, 1999, regulations were published at Part B of Part 34 of the Code of Federal Regulations (CFR), implementing the 1997 IDEA amendments. The IDEA, as amended, is implemented in Florida at Section 230.23(4)(m), Florida Statutes, and Chapter 6A-6, Florida Administrative Code. IDEA’s centerpiece is the "individualized education program" (IEP), which is a detailed statement "summarizing the child’s abilities, outlining the goals for the child’s education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 173 (3d Cir. 1988). The IEP provides special education and related services tailored to the child’s unique needs and designed to provide the child with a "free appropriate public education." 20 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13, 300.15, 300.344-300.347; Section 230.23(4)(m)5, Florida Statutes; Rule 6A-6.03028, Florida Administrative Code. A team including the child’s teachers, local education agency representatives and the child’s parents creates the IEP; 20 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule 6A-6.03028, Florida Administrative Code. Both IDEA and the parallel Florida Statute state that special education students should be educated with non-disabled peers "to the maximum extent appropriate," and that separate classes or schooling should be used if "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." See 34 CFR Section 300.550 and Section 230.23(4)(m)6, Florida Statutes. Placement must be determined on a child-by-child basis. Section 230.23(4)(m), Florida Statutes, generally identifies the educational options available for sensory- impaired children in Florida, including FSDB. That statute is implemented in pertinent part by Respondent at Rules 6A-6.03014, and 6A-6.03022, Florida Administrative Code, which set school district admissions criteria for visually impaired and dual- sensory impaired children, respectively. One of the options listed in the statute is FSDB. Section 230.23(4)(m)3, Florida Statutes. Section 242.3305, Florida Statutes, states the "responsibilities and mission" for FSDB. In pertinent part, it provides that FSDB educates "hearing-impaired and visually impaired students in the state who meet enrollment criteria." Rule 6D-3.002, Florida Administrative Code, implements that statute by setting forth the "Admission and Enrollment Requirements" for FSDB. The DOE Pamphlet was generated in 1997, and amended in 2000, to explain the special education options available to parents of sensory-impaired school-age children in Florida. The Parties Petitioner is a nine-year-old student who is legally blind and otherwise developmentally impaired. He resides in St. Johns County, Florida, and attends classes for the sensory- impaired offered by the St. Johns County School District. His parents moved from Belize in September, 1999, for the express purpose of enrolling Petitioner at FSDB. Respondent is the head of the state agency that published the DOE Pamphlet. FSDB is a state school that, pursuant to Section 242.3305, Florida Statutes, maintains a residential program for educating sensory-impaired children in Florida. The Factual Background The Petition asserts that Petitioner’s parents moved to St. Johns County in 1999, where they "chose to enroll the Petitioner in the . . . FSDB . . . as described in the DOE Pamphlet." The Petition notes that FSDB declined to accept Petitioner. The Petition further states Petitioner then filed multiple due process petitions pursuant to Section 232.23(4)(m), Florida Statutes, which "yielded an offer by FSDB that the Petitioner be evaluated over an extended period in a temporary assignment at FSDB." Thereafter, "As the parents’ choice of enrollment was denied by FSDB, Petitioner’s parents enrolled the Petitioner in the local St. Johns County School District." The Petitioner further states that he later sought County support for placement at FSDB, which was rejected because the County believed it could adequately educate Petitioner. The records of DOAH adequately set forth the factual background. Petitioner was denied admission to FSDB when he applied in 1999. Thereafter, his parents filed a due process petition to contest the FSDB denial (DOAH Case No. 99-493OE). Petitioner and FSDB entered into a Settlement Agreement, which allowed Petitioner to enroll at FSDB on a "temporary assignment basis for extended evaluation [in] accordance with Rule 6D- 3.002(4) . . ., for a period of 90 school days within which time [Petitioner] will participate in the educational program as established by the IEP team." The Petitioner dismissed his case, however, for reasons not apparent in this record, the child’s parents opted not to enroll their son in the school. On January 19, 2000, Petitioner’s parents again filed a request for a due process hearing, alleging that they made a "unilateral mistake" in entering into the first Settlement Agreement. (DOAH Case No. 00-0348E). On March 1, 2000, Petitioner and FSDB entered into another Settlement Agreement (the Second Settlement Agreement). The Second Settlement Agreement provided for the same 90-day temporary assignment, which would commence on the first day of the 2000-2001 school year. That agreement also provided that Petitioner could contest any decision made by FSDB after the temporary assignment. The Petitioner then dismissed his petition. On July 9, 2000, Petitioner filed a third request for due process hearing against FSDB (DOAH Case No. 00-2871E). It alleged that both settlement agreements denied rights under the IDEA, violated FSDB’s admissions rules, and the Second Settlement Agreement was an attempt by FSDB to "circumvent the requirements of law." Petitioner requested a hearing to determine "their conformity to both IDEA and FSDB Rule 6D." On August 8, 2000, DOAH dismissed the case on two grounds. First, Petitioner failed to allege a dispute subject to DOAH review, because Petitioner "clearly stated his intent to continue his enrollment in the public schools of St. Johns County . . .," and further stated his satisfaction with that school system. Final Order in N.H. v. F.S.D.B., Case No. 00- 2871E at p. 3. Second, it was dismissed because the Second Settlement Agreement barred the action. Id. at p.3, et seq. That order was not appealed, and became final. Petitioner filed a fourth due process petition on August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP meeting set for August 8, 2000, which was set by FSDB to implement the Second Settlement Agreement. Petitioner later withdrew that request. FSDB has repeatedly stated, and continues to maintain, that it will excuse the terms of the Second Settlement Agreement to allow Petitioner to remain in the St. Johns County School District. Alternatively, FSDB continues to state Petitioner may temporarily enroll at FSDB pursuant to the Second Settlement Agreement. The Current Case Petitioner filed the instant rule challenge on January 21, 2001. His father received a copy of the predecessor 1997 version of the DOE Pamphlet in August 2000, from a representative of the Dade County School District. He asserts the following two sentences constitute an unpromulgated rule in violation of Section 120.56(4), Florida Statutes: Parents in Florida have the right to choose the educational setting they consider most appropriate for their child who has a hearing or visual impairment. FSDB is an option in the continuum of placement for the education of students with sensory impairments. The Petition claims Petitioner is adversely affected by the two sentences due to the following three injuries: (1) his "parents were denied the right to choose the educational setting they feel most appropriate for their child"; (2) his sensory-impaired peers attend FSDB; and (3) the St. Johns County School District loses funding for special education of sensory- impaired children because most local parents of sensory-impaired children choose FSDB over the District. At the hearing, Petitioner presented the testimony of two employees of the Respondent, Shan Goff and Margot Palazesi. Both testified that the Respondent promulgated the DOE Pamphlet as an informational document for parents and others dealing with sensory-impaired children in Florida. Ms. Goff testified that DOE generates a multitude of similar brochures and pamphlets. She further stated that there is no relation between funding of FSDB and funding of local school districts’ special education programs. The DOE Pamphlet is clear. At page 3, the DOE Pamphlet distinguishes between mandatory education of sensory- impaired children in school districts and discretionary admissions at FSDB: School districts must provide educational programs to each eligible student who has a sensory impairment, beginning on the student’s third birthday and continuing until the student’s 22nd birthday or until the student graduates with a standard diploma, whichever comes first. * * * For students between the ages of 5 and 22 who have sensory impairments and who meet enrollment requirements, the FSDB provides educational and co-curricular programs, support services, day school and residential programs. Immediately following the two challenged sentences, the DOE Pamphlet advises: Interested parents may contact the School’s Parent Information Office for information regarding admission . . . There is no evidence that the DOE Pamphlet, read in pari materia, is inconsistent with the laws, regulations, or policies of the federal government.
The Issue Whether Respondent committed the acts alleged in the Amended Notice of Specific Charges and, if so, the discipline, that should be imposed against Respondent's employment.
Findings Of Fact The Parties / Introduction Petitioner is the entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent began her employment with the Miami-Dade County School District ("School District") on or about October 14, 1986. Starting in 2004 and at all times relevant to this proceeding, Respondent served as the School Board's Instructional Supervisor of Exceptional Student Education for Region II. The duties associated with Respondent's position are enumerated in a written job description, and include: (1) recommending policies for the development and improvement of educational and support services for students with specific learning disabilities; (2) analyzing and monitoring programs for compliance with local, state, and federal requirements; and (3) monitoring ESE programs in a variety of areas, such as gifted, physically impaired, and specific learning disabilities. The written job description also contains examples of Respondent's duties, and reads, in relevant part: EXAMPLE[S] OF DUTIES Responsible for the development, implementation and monitoring of the ESE program for students with disabilities. Provides technical assistance to the Regional Center and school sites regarding programs for students with disabilities. Compiles and analyzes [full-time equivalent] data to assist with this task and with the distribution of program sites for students with disabilities. Supervises, develops, and implements procedures for ensuring that information relevant to policy and compliance of local, federal, and state legislation/mandates on the education of students with disabilities is disseminated to school site district personnel. Develops and facilitates evaluations and audits of programs for students with disabilities. Attends individual education plan (IEP) team meetings, as needed, at region and district levels. Ensures compliance with the Individuals with Disabilities Education ACT (IDEA) and monitors compliance of programs for students with disabilities. Coordinates training for school personnel of the Student Progression Plain and Special Programs and Procedures for Exceptional Students with regards to grading, retention, promotion, graduation and programmatic needs of student in programs for students with disabilities. * * * Assists in monitoring activities, budgets, project expenditures and personnel for federal and state projects relating to students with disabilities. Collects student performance data for students with disabilities and assists personnel with the selection of supplementary research-based curriculum targeting student achievement. Although Petitioner concedes that Respondent has performed her assigned duties adequately, it contends that Respondent misused her position in order to obtain (or attempt to obtain) McKay Scholarship funds for her two children, S.N. and J.N. For the sake of clarity, the undersigned will begin with a description of the McKay Scholarship process, followed by separate discussions of the facts surrounding S.N. and J.N. The McKay Scholarship Program The John M. McKay Scholarships for Students with Disabilities Program, codified in section 1002.39, Florida Statutes, provides eligible disabled students——i.e., students for whom an individual education plan ("IEP") or accommodation plan has been written——with scholarships to attend a private school of choice, or, at the preference of the parent, a public school other than the one to which the student is assigned. In order for a disabled student to qualify for a McKay Scholarship for an upcoming school year, section 1002.39 requires, in pertinent part, that the student have spent "the prior school year in attendance at a Florida public school." § 1002.39(2)(a)2., Fla. Stat. Relevant to the instant proceeding, a student is considered to have attended a public school during the "prior school year" if the student was enrolled and reported by a school district "for funding during the preceding October and February Florida Education Program surveys" (the October and February "FTE survey weeks"). Id. To initiate participation in the McKay program, a parent must file an "intent to participate" with the Florida Department of Education (which is generally accomplished online at www.floridaschoolchoice.org) at least 60 days prior to the date of the first scholarship payment and while the disabled child is still attending public school. § 1002.39(9)(b), Fla. Stat. A parent who files an intent to participate online is required to input the student's name, date of birth, and other background information. Upon receipt of an intent to participate, the school district will verify that the student has an IEP in place and that the attendance requirements were satisfied——i.e., the student was enrolled in public school during the October and February survey weeks. In addition, within 30 days of receiving notification of the parent's intent, the school district must transmit the student's matrix level (a numerical score ranging from 251 to 255 that indicates the level of services necessitated by the student's disability) to the Department of Education. The Department of Education, within ten days of receipt of the student's matrix level, must inform the applicable private school of the amount of the scholarship. § 1002.39(5)(b)1.c., Fla. Stat. The amount of the scholarship is determined primarily by the matrix level (and to a lesser extent by the grade and geographic geographic location of the student), with a higher matrix score entitling the student to greater funding. Should a McKay scholarship student ultimately enroll in a private school, the Department of Education will provide documentation to the State's Chief Financial Officer, who will disburse the scholarship funds in four equal installments during the months of September, November, February, and April. § 1012.39(10)(e), Fla. Stat. The warrants, which are made payable to the parent, are sent directly to the private school. Thereafter, the parent is required to restrictively endorse the warrants to the private school for deposit by the school. Id. Events Concerning S.N. Private Schooling and Testing for ESE On or about July 23, 2004, Respondent and her husband enrolled their daughter, S.N.——who was about to begin sixth grade——at the American Heritage Academy ("American Heritage"), a private school located in Plantation, Florida. Thereafter, S.N. remained continuously enrolled at American Heritage until September 2009. On the initial enrollment contract, as well as each of the re-enrollment contracts executed in 2005, 2006, 2007, 2008, and 2009, S.N.'s current address was listed as "1854 Northwest 107 Terrace, Plantation, Florida." Although S.N. neither required nor received ESE services from the 2004-2005 through the 2007-2008 school years, Respondent began to take steps——starting in the spring of 2008——to have S.N.'s eligibility for such services evaluated through the Miami-Dade County School District. Specifically, in or around April 2008, Respondent requested that Dr. Garnett Reynolds, a speech and language expert employed with the School District and supervised by Respondent, perform a speech and language evaluation of S.N. Dr. Reynolds agreed and conducted the evaluation (which must be performed before a student can tested for ESE eligibility) the same month, which resulted in normal findings. Subsequently, during August 2008, Respondent approached Dr. Yolanda Sklar, a school psychologist assigned to Region II, where Respondent's office is located, and asked her to perform a psychological evaluation of S.N. Significantly, Respondent led Dr. Sklar to believe that: S.N. would be continuing her enrollment in private school; and that the evaluation would not be used for public school purposes——a falsehood, as revealed shortly. Dr. Sklar, who was surprised by the request, reluctantly agreed because she thought it possible that a lack of cooperation could adversely affect4/ her future performance evaluations.5/ The psychological evaluation of S.N., which Dr. Sklar performed at the North Regional Center at Respondent's direction, was completed on August 22, 2008. Due to Respondent's representation that the evaluation was not for public school purposes, Dr. Sklar employed a more "clinical model" than she otherwise would have. After examining the results of S.N.'s tests, Dr. Sklar determined that although no serious behavioral issues existed, S.N. suffered from a specific learning disability in processing speed. S.N.'s Enrollment at Krop On October 15, 2008, while S.N. was still enrolled at American Heritage, Respondent registered S.N. at Dr. Michael M. Krop High School ("Krop"), a school located in Region II (the region to which Respondent was assigned) of the Miami-Dade School District and where Respondent's husband previously served as principal. On that date, which was during the FTE survey period, Respondent appeared at the office of Krop's registrar, Grace Lopez, and announced that she wished to enroll S.N. immediately. Respondent further informed Ms. Lopez that Krop's principal at that time, Matthew Welker, approved of S.N.'s registration. During the registration process, Respondent represented, and Ms. Lopez accepted, "3530 Mystic Pointe Drive, Unit 3009, Miami, Florida," as S.N.'s current address——a location zoned for Krop,6/ in contrast to the Northwest 107 Terrace address in Plantation, which had been provided to American Heritage as S.N.'s residence from 2004 through 2008. Although Ms. Lopez ordinarily conducts address verifications for new students, Ms. Lopez did not do so in connection with S.N.'s address because she confirmed that the principal had authorized the registration. Had Ms. Lopez performed such a verification, she would have discovered no connection between S.N. or her parents with the Mystic Pointe Drive address. Indeed, the evidence adduced during the final hearing in this matter demonstrates that at no time has S.N. ever resided at 3530 Mystic Pointe Drive, Unit 3009, or any other unit at 3530 Mystic Pointe Drive. Further, there is no credible evidence that Respondent expected to relocate to Mystic Pointe Drive at some time in the future. Creation of IEP and Related Records On October 15, 2008, the first day of S.N.'s enrollment at Krop, a staffing was held to determine her eligibility for special education services under the Individuals with Disabilities Education Act ("IDEA"). At that time, approximately 49 other students in the school district's Region II——one of whom attended Krop——were waiting to be staffed. As a result of the staffing, which was conducted by Lisa Parker, an ESE placement specialist employed with the school district and a close personal friend of Respondent's, a determination was made that S.N. was eligible to receive ESE services under the IDEA. On the same day, October 15, 2008, Ms. Parker held an individual education plan ("IEP") meeting, during which an IEP (a written document that memorializes the student's educational programs, goals, and necessary services) and a "matrix of services" (a document utilized by the State of Florida for funding purposes that contains the student's matrix score) were drafted for S.N. Although Ms. Parker was not called as a witness during the final hearing, testimony was elicited from two of the IEP participants: Dr. Richard Rosen, a school psychologist; and Lawrence Davidson, a music and drama teacher at Krop. Mr. Davidson, who had never observed S.N. in a general education setting, provided no input whatsoever during the development of the October 15, 2008, IEP. Instead, and notwithstanding his status as the "regular education teacher" involved in the process, Mr. Davidson merely read the document at the request of Ms. Elissa Rubinowitz, the ESE specialist assigned to Krop, and signed it based upon his belief that the accommodations enumerated in the IEP could be implemented in a general education setting. The other IEP participant who testified during the final hearing, Dr. Richard Rosen, first learned of S.N.'s IEP on October 15, 2008, while picking up files at the Region II office. At that time, Respondent asked Dr. Rosen——who was assigned to several schools in Region II other than Krop——to come into her office and read the psychological report prepared by Dr. Sklar. Dr. Rosen agreed, and proceeded to review, in a cursory fashion, certain portions of Dr. Sklar's report (the test results in particular) in the presence of Respondent and Ms. Parker, the only other persons in the room. Ultimately, Dr. Rosen signed the IEP and concluded, based upon his incomplete review of Dr. Sklar's report, that S.N. possessed academic and information processing deficits. Dr. Rosen's overall participation in the IEP's creation lasted approximately five to fifteen minutes. As demonstrated during the final hearing, the creation of S.N.'s IEP was accompanied by a number of procedural deficiencies of which Respondent, in light of her expertise in the field of exceptional student education, must have been aware. First, interventions should have been attempted in S.N.'s general education classes prior to a decision being made regarding S.N.'s eligibility for ESE services and the formulation of an IEP. Further, even assuming that it was not premature to make an eligibility determination (and create an IEP) for S.N. in October 2008, the normal procedure contemplated that the staffing and IEP meeting be held on a date when the school psychologist assigned to Krop, Dr. Mark Finkelstein, was present on campus. In addition, Dr. Sklar, the school district psychologist who conducted the testing of S.N., was not invited to participate in the process and was therefore unaware of the October 15, 2008, staffing and IEP meeting. Finally, the undersigned accepts the final hearing testimony of Dr. Sue Buslinger-Clifford, a school district instructional supervisor for psychological services with considerable experience, who recounted that she has never witnessed——for any student——the successful development of an IEP in as short a period as S.N.'s was created. As with the process that led to its creation, the substance of the IEP suffered from a variety of deficiencies. First, Dr. Buslinger-Clifford, who was accepted as an expert in the field of ESE referral and assessment, credibly testified that pursuant to state standards, Dr. Sklar's psychological report did not establish S.N.'s need for ESE services. In particular, Dr. Sklar's test results did not reveal the required disparity of at least 1.5 standard deviations between S.N.'s ability and achievement.7/ As an additional deficiency, Dr. Edna Waxman, a school district instructional supervisor for special education compliance whom the undersigned accepted as an expert in her field, credibly testified that "daily" specialized instruction in English and math was unwarranted. Finally, the IEP failed to specify the duration in which the supplementary aids and related services——i.e., collaboration, consultations, and therapy——would be provided to S.N. The matrix of services for S.N., which Ms. Lisa Parker prepared on the same day as the IEP, also failed to comply with state standards. In particular, "Domain A" of the matrix, which describes the level of modifications to the curriculum and learning environment needed by the student, was scored for S.N. as "level four"——the second highest level, which contemplates "different curriculum and/or extensive modification to [the] learning environment"——based upon Ms. Parker's determination that S.N. required assistance for the "majority of learning activities." Such a scorning was flawed, as the "Matrix of Services Handbook" and Dr. Waxman's credible testimony demonstrate that for a student's Domain A to be scored at level four based upon the need for assistance for the "majority of learning activities," evidence must be present that the student requires a special class setting or assistance within a general education class for more than 50 percent of the school day. No such evidence was documented in S.N.'s IEP.8/ Withdrawal from Krop, Subsequent Reenrollment, and Modifications to ESE Documents As detailed above, S.N.'s matrix of services and IEP were completed on October 15, 2008, S.N.'s first day of enrollment at Krop. A mere eight days later, on October 23, 2008, Respondent withdrew S.N. from Krop. During her brief period of enrollment, S.N. was present at Krop on four days: October 16, 17, 21, and 23; and absent on two occasions: October 20 and 22. Although S.N. remained on Krop's campus on the days she was present for school, she rarely attended classes and instead chose, by her own admission, to frequent the cafeteria during all three lunch periods. Indeed, Mr. Davidson, the drama instructor who signed S.N.'s IEP as the "regular education teacher," does not recall S.N. being present for his class on any occasion during October 2008. On or about October 24, 2008, S.N. resumed classes at American Heritage, where she remained continuously enrolled during her brief stint at Krop. The registrar of American Heritage, Cecelia Dehlin, testified credibly that she was unaware of S.N.'s period of enrollment at Krop during October 2008, and that such dual registration is not knowingly permitted by her institution——i.e., American Heritage would have required S.N. to withdraw upon her enrollment at Krop. Subsequently, on February 5, 2009, while S.N. was still enrolled at American Heritage and just four days before the start of the FTE survey week, Respondent once again registered S.N at Krop.9/ On the very next school day, February 9, 2009, Ms. Parker revised S.N.'s IEP. Mr. Davidson, the only person involved in the process who testified during the final hearing, signed S.N.'s new IEP at the request of Krop's ESE specialist, Ms. Rubinowitz. In addition to the revised IEP, Ms. Parker created a new matrix of services for S.N. As with the previous matrix drafted in October 2008, the new matrix improperly scored S.N. at "level four" with respect to Domain A (curriculum and learning environment). In addition, Domain B, which measures the level of services necessary to address a student's social and/or emotional behavior, was scored at level four——one level greater than S.N.'s October 2008 matrix. This was improper, as Dr. Sklar testified credibly that the information contained in S.N.'s IEP did not indicate a need for "daily counseling or specific instruction on social or emotional behavior," the purported basis for Ms. Parker's level four scoring. Based upon the increase in S.N.'s Domain B from level three to level four, the overall matrix score increased from 252 to 253. Significantly, such an increase would entitle a McKay scholarship participant to a greater level of funding. During S.N.'s enrollment at Krop during February 2009, S.N. was present on February 9, 10, 11, 12, and 13——the five school days that constituted the FTE survey week——and absent on February 17, 18, and 19, three days in which S.N. was marked present at American Heritage. Events of February 20, 2009 As discussed previously, it is necessary for a parent, as part of the McKay scholarship process, to file an intent to participate in the program prior to the student's withdrawal from public school. On the morning of February 20, 2009, Ms. Rubinowitz, Krop's ESE specialist, appeared in the office of Krop's registrar and asked that S.N. be withdrawn. The registrar, Ms. Lopez, advised Ms. Rubinowitz that in the absence of a personal request from one of S.N.'s parents, no change in the child's registration status would be made. Later that morning, Ms. Rubinowitz again requested that Ms. Lopez withdraw S.N. from Krop. On this occasion, however, Ms. Rubinowitz stated that she was attempting to expedite the withdrawal of S.N. on Respondent's behalf and that Respondent was on her way to the school. Ms. Lopez acceded to the request and made the necessary changes in the school district computer system to withdraw S.N. from Krop. A short time later, Respondent arrived at Krop and insisted that S.N. be reenrolled immediately. As school registrars within the district are prohibited from making more than one enrollment change during a single day for a particular student, it was necessary for Ms. Lopez to telephone the district's attendance services office to complete S.N.'s re- registration. Roughly one hour later, Respondent once again appeared at Ms. Lopez' office and directed, in a sudden and unusual twist, that S.N. be withdrawn. Ms. Lopez thereafter contacted the district's attendance office and carried out Respondent's request. At approximately 12:30 p.m. on February 20, 2009, the same date S.N. was withdrawn from Krop, re-enrolled, and withdrawn for a final time, Respondent went online to flordashoolchoice.org and filed an intent for S.N. to participate in the McKay scholarship program.10/ Petitioner contends, and the undersigned agrees, that the only logical explanation for the unusual events of February 20, 2009, is that Ms. Rubinowitz withdrew S.N. prior to Respondent's submission of the online intent, which necessitated S.N.'s brief re-enrollment so that Respondent could file the intent in accordance with the McKay guidelines——i.e., before S.N.'s withdrawal from public school. These events, along with the fact that S.N. was not withdrawn from American Heritage until September 2009, confirm that S.N.'s enrollment at Krop was precipitated entirely by Respondent's desire to obtain a McKay Scholarship for her child, and not, as S.N.'s testimony suggests, by supposed misbehavior on S.N.'s part at American Heritage. Other Events / Investigation In or around April 2009, Ms. Karen Stearns, an employee of American Heritage whose duties include the oversight of McKay scholarships for eligible students, learned of Respondent's intent for S.N. to receive McKay Scholarship funds for the upcoming 2009-2010 school year. This confused Ms. Stearns, as she could not understand how S.N.——who, to the best of her knowledge, had not attended public school at any point during 2008 and 2009——could meet the McKay program's attendance requirements. Ms. Stearns raised these concerns with Respondent, who stated untruthfully that S.N. qualified for a McKay scholarship due to possible litigation against the school district for failing to provide S.N. with proper accommodations. Unsatisfied with Respondent's explanation, Ms. Stearns contacted an employee with the Florida Department of Education's office of individual education and parental choice and inquired about S.N.'s eligibility. In turn, the Department of Education contacted Ms. Judith Fain, who is employed in the division of special education with the Miami-Dade County School District. Using her computer, Ms. Fain looked up S.N. in the school district's Integrated Student Information System ("ISIS"). From the entries in ISIS, Ms. Fain confirmed that the prerequisites for McKay eligibility appeared to be satisfied: an IEP for S.N. had been completed and S.N. had been enrolled in public school during the October 2008 and February 2009 FTE survey weeks. Based upon the information provided by Ms. Fain in May 2009, the Department of Education notified American Heritage that S.N. was eligible to receive a McKay scholarship. Subsequently, on June 5, 2009, the school district received an anonymous complaint from an individual using the alias "Lincoln Brower." The complaint, which was sent by e- mail, alleged that S.N. did not meet the eligibility requirements for the McKay program and that Respondent had misused her position to commit fraud. On or around the date the anonymous complaint was submitted (but prior to Respondent learning of the allegations), Respondent contacted Ms. Dehlin at American Heritage and requested that S.N.'s outstanding tuition balance for the upcoming school year be reduced pursuant to the McKay scholarship. Ms. Dehlin complied, and modified Respondent's payment plan to reduce the tuition by $11,307, the McKay funding amount that American Heritage anticipated it would receive from the State of Florida during the 2009-2010 school year. Almost immediately thereafter, Respondent engaged in a pattern of behavior that is entirely consistent with——and has been interpreted as——an attempt to conceal wrongdoing on her part. First, on June 10, 2009, Respondent came to the American Heritage campus and directed Ms. Stearns to terminate S.N.'s participation in the McKay program, destroy the school's copy of S.N.'s IEP, and dispose of the McKay Scholarship Program affidavit that had been executed less than a week earlier. Although Ms. Stearns removed S.N. from the McKay program on the date of Respondent's request, Ms. Stearns retained possession of S.N.'s IEP and the McKay affidavit. Subsequently, on June 16, 2009, Respondent contacted Ms. Stearns to confirm that S.N. had been withdrawn from the McKay program. Ms. Sterns advised that S.N. had been withdrawn as Respondent requested. A few days later, Respondent called Ms. Stearns yet again and asked if S.N.'s McKay documents had been destroyed. Ms. Sterns admitted that the documents had not been destroyed pursuant to the instructions of Mr. Laurie (one of the school's administrators), at which point the call ended. Several minutes later, however, Respondent appeared at American Heritage and asked to speak with Mr. Laurie concerning the records. During the approximate period of time that Respondent withdrew S.N. from participation in the McKay program, Dr. Daniel Tosado (an assistant superintendent with the school district) and Mr. Freddie Woodson (the district's deputy superintendent for school operations) determined that an investigation should be initiated regarding the allegations raised in the anonymous complaint. To that end, Mr. Woodson forwarded the complaint to the school district's Office of the Inspector General ("OIG") and decided, after a discussion with Mr. Tosado, that S.N.'s cumulative file should be retrieved.11/ Contents of S.N.'s Cumulative File During the final hearing in this matter, a copy of S.N.'s cumulative file was received in evidence, the contents of which included: a Krop student enrollment form; Dr. Sklar's evaluation; the October 15, 2008, IEP and matrix of services; the February 9, 2009, IEP and matrix of services; a "notification of meeting," dated October 15, 2008, which listed Dr. Sklar as an invitee; a "notification of meeting" to review S.N.'s accommodations, dated February 9, 2009; a document titled, "Secondary CST Request for Evaluation (Documentation of Screening and Prereferral Activities," dated October 9, 2008; a speech and language evaluation report, dated October 15, 2008, which listed Dr. Garnett Reynolds as the examiner; and an observation form regarding S.N., dated October 2008, purportedly drafted by a math instructor named "Levine." As demonstrated through the credible testimony of various witnesses, at least four of the documents included in S.N.'s cumulative file are fraudulent in one or more respects. First, Dr. Sklar testified that she had no involvement with the October 9, 2008, "Secondary CST Request for Evaluation," and that her signature was forged on the document. Dr. Sklar further testified that contrary to the face of the October 15, 2008, "notification of meeting," she was not invited (and had no knowledge of) S.N.'s October IEP meeting. In addition, the undersigned accepts Dr. Reynolds' testimony that she did not draft or have any involvement with the October 15, 2008, speech and language evaluation report that bears her name as the "preparer." As detailed previously, Dr. Reynolds prepared a speech and language report for S.N. in April 2008, a copy of which is not contained in S.N.'s cumulative file. Finally, Ms. Samantha Levine, S.N.'s math teacher at American Heritage during 2008-2009, testified credibly that although she filled out an observation form for S.N. during 2008, the document contained in S.N.'s cumulative file that bears her name and "signature" as the observer is not genuine and overstates the severity of S.N.'s academic difficulties. In particular, the inauthentic observation form contained in S.N.'s cumulative folder indicates falsely that S.N. was "excessively" (the most severe rating of the five options pre-printed on the form, which range from "never" to "excessively") distractible, prone to daydreaming, reluctant to speak in group situations, and self-conscious. Further, and most significant, "Section X" of the fraudulent observation form contains a notation that a "significant disparity" exists between S.N.'s ability and achievement, which was neither observed by Ms. Levine nor marked on the observation form she actually completed. In its Proposed Recommended Order, Petitioner asserts, as it has throughout this proceeding, that the fraudulent items described above were created by Respondent or by another individual at Respondent's behest. Respondent, on the other hand, contends that that one or more unknown persons placed the inauthentic documents in the cumulative file in an attempt to "frame" her and bring her family into disgrace. Although there is no direct proof of Respondent's involvement, there is sufficient circumstantial evidence to demonstrate, by a preponderance of the evidence, that the documents were created at Respondent's direction or by Respondent herself. First, there is no doubt that Respondent was highly motivated——at least until June 2009, after the anonymous complaint was filed——to secure the approval of a McKay scholarship for S.N. Respondent was so motivated, in fact, that she was willing to lie to fellow school district employees to facilitate the process: Respondent provided a phony address to Krop's registrar to secure the registration of S.N. (which led to the creation of an IEP, a McKay program prerequisite, in record-setting time and with 49 other children waiting to be staffed) and falsely stated to Dr. Sklar that any evaluation of S.N. would be used only by American Heritage. Months later, when questioned about S.N.'s eligibility for the McKay scholarship by American Heritage's registrar, Respondent untruthfully stated that S.N. satisfied the attendance criteria as a result of litigation against the school district. Respondent is further incriminated by her repeated requests, after the submission of the anonymous complaint, to American Heritage's registrar to destroy the IEP and McKay affidavit, as well as her subsequent (and sudden) appearance at American Heritage upon learning that the items were still in the school's possession. Finally, the undersigned finds it significant that the fraudulent observation form bears the surname of one of S.N.'s teachers at American Heritage——a detail not likely at the ready disposal of individuals within the Miami-Dade County School District who may wish to harm Respondent.12/ Even assuming, arguendo, the evidence detailed above is insufficient by itself to establish Respondent's involvement in the creation of the fraudulent documents, Respondent's refusal during this proceeding to testify (or answer discovery requests) permits the undersigned to draw an adverse inference13/ against her. The circumstantial evidence, enhanced by the adverse inference, is more than sufficient to demonstrate Respondent's culpability in the creation of the inauthentic records. Events Concerning J.N. J.N.'s Disability / School Enrollment It is undisputed that Respondent's son, J.N., suffers from a birth defect that impairs the use of his right wrist. Consequently, J.N., who is right handed, finds it more difficult than most other students to write neatly during long assignments and "bubble in" Scantron forms. Beginning in the fall of 2002 through the completion of fifth grade in the summer of 2008, J.N. continuously attended Central Park Elementary School in the Broward County School District. From kindergarten through fourth grade, J.N. received neither ESE nor gifted services. During the summer of 2007, several months before J.N. was to begin fifth grade, Respondent contacted Dr. Kim Rubin, the principal of Virginia A. Boone Highland Oaks Elementary ("Highland Oaks") in the Miami-Dade County School District. During the conversation, Respondent advised Dr. Rubin that although J.N. would continue to attend school at Central Park Elementary in Broward County, she wished to temporarily enroll J.N. at Highland Oaks so he could be tested for gifted services——which, according to Respondent, could be accomplished more quickly in Miami-Dade County. Respondent also stated that J.N. needed an identification number in order for him to be evaluated for gifted eligibility by a Miami-Dade School District employee. Although Dr. Rubin was aware that the registration of J.N. would run afoul of school district protocol, she decided to permit the registration in order to preserve a "collegial relationship" with Respondent. Significantly, at no time did Respondent mention to Dr. Rubin that she also intended for J.N. to be tested for ESE services. Indeed, Dr. Rubin testified credibly that had she known Respondent planned to have an IEP created for J.N. related to a disability, she would have never authorized the creation of a student identification number. This is because, as Dr. Rubin explained, a student with a disability entitles the school where the child attends to a greater FTE funds disbursement, which carries significant financial implications for the school district. On or about June 21, 2007, J.N. was enrolled at Highland Oaks pursuant to Dr. Rubin's authorization. During the registration, Respondent provided the registrar with "3530 Mystic Pointe Drive Apartment 3009, Miami," as J.N.'s address. As noted previously, however, no connection existed between that address and Respondent's family. Indeed, J.N. admitted during his final hearing testimony that he has never resided at any location in Miami. Creation of IEP / McKay Scholarship Participation / Cumulative File Discrepancies On June 25, 2007, an IEP for J.N. was prepared by one or more Miami-Dade County school district employees, which reads, in relevant part, that he had been determined eligible for the "Other Health Impaired, Specific Learning Disabled, [and] Gifted" programs. On August 7, 2007, J.D. was withdrawn from Highland Oaks——where he never actually attended——and, shortly thereafter, began fifth grade at Central Park in Broward County. During J.N.'s fifth grade year, Central Park was provided with a copy of the Dade County IEP dated June 25, 2007. Ultimately, one or more employees of Central Park adopted the IEP and transposed the information contained therein onto Broward County forms. In early 2008, Respondent applied for, and was granted, a McKay Scholarship for J.N. in the amount of $7791. Those funds——a byproduct of the IEP developed in Miami-Dade—— were subsequently applied toward J.N.'s tuition at American Heritage Academy, where he attended school during the 2008-2009 academic year. As discussed previously, an investigation of Respondent ensued during June 2009 following the Miami-Dade County School District's receipt of the anonymous complaint. Pursuant to the investigation, Mr. David Ferrer, a school district employee who serves as a liaison to the court system, picked up J.N.'s cumulative file at Highland Oaks on September 1, 2009. Mr. Ferrer provided J.N.'s file to Ms. Maria Hernandez, an administrator who serves as the custodian of records at the district level. Ms. Hernandez testified credibly that she promptly locked J.N.'s cumulative folder in a location to which only she had access and that the file has remained undisturbed since that time. During the final hearing in this matter, the contents of J.N.'s cumulative file in Ms. Hernandez's custody were received in evidence. As with S.N.'s folder, several documents contained in J.N.'s file are fraudulent: an "observation of student behaviors" form, dated May 30, 2007, which bears the name "Webb" as the observer; and the June 25, 2007, IEP. With respect to the "observation of student behaviors" document, Ms. Nancy Webb, J.N.'s fourth grade teacher at Central Park during the 2006-2007 school year and the only faculty member with the surname "Webb", credibly testified that the form is not genuine and that she never filled out an observation document in connection with J.N. Further, the undersigned accepts Ms. Webb's testimony that J.N.'s true level of academic performance in mathematics is understated in the document——i.e., the inauthentic observation form reflects that J.N. was on grade level, when in fact he was above grade level. Turning to the June 25, 2007, IEP, only one Miami-Dade school district employee whose name appears on the document was called as a witness in this matter: Ms. Michelle Weiner, a curriculum supervisor. Ms. Weiner credibly testified that during the summer of 2007, she signed a document——possibly J.N.'s IEP——at Respondent's request, but did not look at what she was signing based on her faith in Respondent's professionalism. However, as Ms. Weiner was out of town on June 25, 2007, she further testified that her "signature" on the document might have been forged. Either way, Ms. Weiner was not present for the IEP meeting and had no input whatsoever during the process; as such, her name should not appear on the document as a participant. Although there is insufficient proof that Ms. Weiner's signature was forged on J.N.'s IEP, sufficient circumstantial evidence exists——e.g., Respondent's lie to Dr. Rubin about the purpose of J.N.'s registration at her school and Respondent's provision of a false address to the registrar——that the bogus observation form (bearing the name of a Broward County teacher of J.N.'s, a detail Miami-Dade employees would have no reason to know) was either drafted by Respondent or by another individual at her behest.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2012.
Findings Of Fact At all times material hereto Respondent, Edgar Lopez, was a fifteen year old student who was assigned to Henry Filer Middle School during the school year of 1987-88 and to Jose Marti Middle School during the school year 1988-89. When a teacher in the Dade County School System wishes to report or refer a discipline problem in the classroom, the teacher completes and submits to the assistant principal a Student Case Management form, commonly referred to as a SCAM. During the 1987-88 school year, at least nine SCAMs were filed concerning Respondent and addressed disruptive behavior problems of tardiness, disobedience, and failure to cooperate. Respondent, Respondent's parent or both were consulted concerning the nine reports; however the behavior did not improve. Then, in school year 1988-89, Respondent continued to have excessive absences, and the visiting teacher consulted Respondent's mother about Respondent's attendance. On January 31, 1989, Respondent was found with two harmful knives at school and during school hours. Possession of knives is a Group 5 offense of the student code of conduct of the Dade County School Board which is punishable by expulsion. Respondent exhibited disruptive behavior and was consulted about his problems but failed to improve. Further, Respondent committed an offense which warrants expulsion. Accordingly, Respondent's assignment to the opportunity school is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 5th day of July, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989. COPIES FURNISHED: George dePozsgay, Esquire 2950 S.W. 27th Avenue Suite 210 Miami, Florida 33133 Ramonita Gonzalez Lopez, 10,000 Northwest 80th Court Apartment 2127 Hialeah Gardens, Florida 33016 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
