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
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
The Issue Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE- 269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.
Findings Of Fact The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James P. Walsworth, is an employee of the School Board of Broward County, Florida. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence). In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year. He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD). Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which of the students were having funding claimed for them in October, 1975 and February, 1976. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD). After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.
Recommendation It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming. DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302 Emerson Allsworth, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Mr. James E. Maurer Superintendent of Schools The School Board of Broward County Administration Offices 1320 S.W. Fourth Street Ft. Lauderdale, Florida 33312
The Issue The basic issue in this case is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in an Administrative Complaint dated September 1, 1988. The Administrative Complaint alleges that the Respondent is incompetent to teach and that the Respondent's personal conduct has seriously reduced her effectiveness as a School Board employee. At the hearing, the Petitioner presented the testimony of two witnesses and offered five exhibits, all of which were received in evidence. No evidence was offered by or on behalf of the Respondent. A transcript of the hearing was filed on March 8, 1989, and on March 20, 1989, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent did not file any post- hearing documents. The substance of all proposed findings of fact submitted by the Petitioner has been accepted and incorporated in the findings of fact in this Recommended Order.
Findings Of Fact Based on the evidence received at the formal hearing in this case, I make the following findings of fact: At all times material hereto, Respondent was employed by the Dade County School Board as a Science Teacher assigned to Kinloch Park Junior High School. During the 1982-1983 school year, an incident involving the Respondent and one of her students was brought to the attention of her principal, Henry J. Pollock. The incident involves an alleged act of child abuse, wherein the Respondent was reported to have struck one of her students with a ruler. The incident precipitated notices being sent to the HRS and the Special Investigative Unit of the Dade County School District. An investigation was ordered. During the investigation, the Respondent was requested to make contact with and participate in the Employee Assistance Program. This recommendation was based on not only the immediate incident under investigation, but also on the fact that the Respondent had shown great difficulty in coping with the work assignment. Further, the Respondent was observed losing her temper and reacting to students in a way that was not acceptable. A follow up by the Respondent's principal revealed that the Respondent had refused to participate in the Employee Assistance Program. Thereafter, the Respondent sought and obtained a leave of absence. The basis of the request was for medical reasons. The Respondent's initial leave of absence was scheduled to end on May 10, 1984, but was extended to June 1984 based on a physician's statement from a Dr. Strobino in Rochester, New York. In June of 1984, the Dade County School District sent a letter to the Respondent informing her that in order to extend her leave of absence for the 1984-1985 school year, certain additional documentation would be required. The Respondent submitted a report from Dr. Strobino, dated July 18, 1984. In part, the doctor noted that "[Respondent] was still under his professional care, she remained ill, was unable to continue with her duties as a school teacher for a period of one year...." Leave was granted for the 1984-1985 school year. The Respondent made an additional request for a leave of absence for the 1985-1986 school year. In support of this request, the Respondent submitted a report from a Dr. Agostinelli, of Rochester, New York. The report was dated May 23, 1985. Essentially, the physician diagnosed the Respondent as suffering from "a moderate situational anxiety and depression." In May of 1986, the Respondent was notified by Dr. Gray's office of a scheduled "conference for the record" to be held on September 2, 1986. The Respondent appeared at the conference, and at the conclusion of the conference, she agreed to be examined by a Dr. Gail Wainger, M.S., who is a licensed psychiatrist. Dr. Wainger's report concluded that the Respondent could return to work if she remained in active psychiatric treatment. The Respondent never initiated the required psychotherapy. Instead, the Respondent remained in an unauthorized absence or absent-without-leave status until she retired in lieu of dismissal. The Respondent's retirement was effective June 24, 1987. During the ensuing months and up through the pleading stage of these proceedings, the Respondent has demonstrated that she not only does not wish to retain her teaching certificate and/or her eligibility to renew same, but is not emotionally stable enough to carry out her responsibilities as a member of the teaching profession. By her own admission, the Respondent is suffering from paranoid schizophrenia and is unable to teach school. This condition and the conduct associated with the condition has seriously reduced the Respondent's effectiveness as an employee of the School Board.
Recommendation On the basis of all of the foregoing, it is recommended that the Education Practices Commission issue a final order in this case suspending the Respondent's teaching certificate for a period of three years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of April 1989. MICHAEL M. PARRISH 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 18th day of April, 1989. COPIES FURNISHED: Craig R. Wilson, Esquire Flagler Court Building 215 5th Street Suite 302 West Palm Beach, Florida 33401 Ms. Elaine Daggar 605 21st Place, East Bradenton, Florida 34208 Mr. Martin Schapp, Administration Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Office of the Commission of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation, misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.
The Issue Validity of Respondent's placement decision concerning Petitioner, as set forth in letter of Wylamerle G. Marshall, dated March 28, 1978. This cases arises from Petitioner's request for a hearing to review a decision of the Director, Exceptional Child Education, Dade County Public Schools, that placement of the Petitioner in a learning disabilities program was an appropriate placement in the Dade County School System. The decision was effected by letter of March 28, 1978 from Wylamerle G. Marshall to Mrs. Constance Garrett, the mother of petitioner Thomas Garrett. She-thereafter requested review on behalf of her son by letter from legal counsel dated April 6, 1978. The case was referred to the Division of Administrative Hearings for appointment of Hearing Officer on April 12, 1978. Although the hearing in this matter was originally set for May 11, 1978, the Hearing Officer granted Petitioner's request for a continuance and the case was heard on June 14, 1978.
Findings Of Fact Petitioner Thomas Garrett, a seven year old boy, who is the son of Constance Garrett, Miami, Florida, was enrolled in the first grade at Orchard Villa Elementary School, Miami, Florida, in September, 1977. Several days after school began, Thomas brought home classroom papers indicating that he had failed on certain tests. Mrs. Garrett spoke to his teacher who informed her that Thomas was hyperactive, disruptive and not able to do classroom work properly. She then went to the principal who told her that letter grades should not have been given in the first grade classes and suggested that the child be placed again in kindergarten. Mrs. Garrett asked that Thomas be tested to determine if he had any learning deficiencies and the principal agreed to initiate administrative processing in that respect. (Testimony of C. Garrett) The normal procedure followed in the Dade County Public School System for placement of a child in a learning disabilities program is for the student's teacher to bring the matter to the attention of the local school authorities who refer the case to a school "team." The team assists the teacher in dealing with any problems arising in the classroom. If the team recommends that the child needs evaluation, the school sends a visiting teacher to the home to obtain the social history of the child to prepare for possible psychological testing and evaluation of the particular case. This information, together with routine school hearing and visual tests, and evaluation of the student's teacher are provided to a psychologist in the school system who performs psychological testing at the school to determine the need for special education. The results of testing are thereafter reviewed by a committee of the county area concerned and final approval of any placement is made by the area staff director of student services for special education. Normally, the local schools are reluctant to test a small child early in the year until school personnel have worked with the child for a reasonable period of time. (Testimony of Shkoler) On September 15, 1977, a visiting teacher was sent to the Garrett home where he obtained necessary data as to the child's background and procured the parent's consent for psychological testing. He turned this material over to school authorities on the same day. At the time of his visit, Mrs. Garrett informed him that she intended to have a private psychologist test her son, and also utilize the services of a public school psychologist, after which she would compare the results. (Testimony of Walton) In the middle of September, a school psychologist was assigned to test Thomas but did not actually perform the testing because Mrs. Garrett obtained the services of a private psychologist who tested her son on September 20. It was therefore necessary for him to postpone any testing until he could see what testing had been done by the private psychologist. In the meantime, however, Mrs. Garrett had been urging the area director of student services, Mrs. Betty Shkoler to hasten psychological testing, but had not made her aware of the fact that private testing had been accomplished. It was not until the latter part of October, however, that Mrs. Garrett took the report of the private psychologist to Mrs. Shkoler, although she had shown it to the Orchard Villa principal. The report stated that Thomas had a need for a fully clinical school with emphasis on motor and perceptual skills and academic learning experiences presented with manipulative-associative techniques. The director of student services had the report reviewed by an area psychologist and it was determined that Thomas should be placed in a learning disabilities program. Mrs. Garrett was contacted and agreed to placement at Westview Elementary School after personal visitation there. Thomas was thereafter placed in the first grade class of Martha L. Chinn at that school. The authorization for placement, dated October 27, 1977, stated that the child's primary educational needs were activities to remediate visual motor deficits, visual closure activities, visual association, and visual sequential memory activities, and a program for gross motor development. Mrs. Garrett signed a consent form to the placement on November 4, 1977. (Testimony of Armour, Shkoler, C. Garrett, Exhibits 1, 3 - 4) Normal transportation arrangements were made by area school authorities whereby the parent is responsible for taking the child to the home school -- in this case Orchard Villa -- where school bus transportation would be provided to the new school, Westview Elementary. However, since Mrs. Garrett had specifically asked that Thomas be picked up by bus at his home for delivery to Orchard Villa, a special request was made to the school transportation office for this type of transportation. Pending receipt of information concerning such transportation, Mrs. Garrett personally transported Thomas to and from Westview Elementary on his first two days of class, October 31 and November 1, 1977. Although she anticipated having him picked up by bus on the following school day, November 3, as a result of Information provided in a note sent to her by the school teacher, this was not done because the school bus transportation office had not received a formal written request for such special treatment. Accordingly, Mrs. Garrett took Thomas to school on that day and was thereafter assured by school bus personnel that he would be picked up that afternoon from school. Conflicting testimony was presented at the hearing as to whether or not Mrs. Garrett was informed that the teacher would be notified as to the fact that Thomas would be picked up by bus that afternoon. In any event, Mrs. Chinn was not so informed and Thomas proceeded to wait for his mother outside the school after class. He was observed by his teacher waiting for his parent at the customary place, and she reassured him after some lapse of time that his mother would be there. She had assumed that Mrs. Garrett would pick him up since she had brought him to school that morning. Thomas later wandered off the school grounds and Mrs. Garrett, who had been waiting to meet the bus, became apprehensive when it did not arrive. She was later informed by the school secretary that Thomas had been found by a man some 24 blocks away from the school and returned there. Mrs. Garrett proceeded to school to pick him up and Thomas would not tell her what had happened, but was like a frightened animal." The next day Mrs. Garrett took him back to school, although he had had nightmares and did not want to return. She talked to a new assistant Principal at the school concerning the incident and was upset by what she perceived to be a callous attitude. On the following Monday, November 7, she took Thomas to the Orchard Villa School for bus pickup, but he was frightened and remained on the floor of the car. She thereafter did not let him return to Westview. Several days later, she was informed that bus pickup could be provided at home; however, she enrolled Thomas in Vanguard School, a private school in Coconut Grove in late November. (Testimony of C. Garrett, Chinn, Shkoler, Hart) The class at Westview Elementary School where Thomas attended for several days is a full-time class for students with learning disabilities. It is taught by a teacher certified in that specialized area who is assisted by an aide certified in elementary education. By the end of the 1977-78 school year, there were 19 children in the class. However, individual attention is given by the teacher to each student to deal with their "deficits" and prepare "prescriptions" to assist in improving weak areas. It was found by Mrs. Chinn that Thomas was weakest in the "motor" area and consequently she prepared materials to deal with this problem. Although he had no particular problem in understanding instructions, he possessed a visual motor perceptive defect which causes difficulty for him to process and retain visual and auditory information. His condition results in inconsistent actions in response to auditory commands whereby in some instances he is capable of carrying out instructions but sometimes cannot do so. Although ideally he should be in a class with a low teacher/child ratio of ten or less children, this ratio may be higher in situations where an aide is present to assist the teacher. Thomas's teacher at Westview found that he seemed no different than any other child in her class and when he returned to school on November 4 after the unfortunate bus incident, he did not appear to be upset or pose any difficulty. (Testimony of Chinn, Armour, Cullen, Exhibit 2) The learning disabilities program in the Dade County Public Schools is adequate for most children and Respondent refers children to private schools only in extreme cases involving children who cannot be properly handled in the public school system for unusual reasons. Although Thomas initially could have received a negative image of public schools from his receipt of failing grades at Orchard Villa, this would not necessarily predispose him against public schools. Although the bus incident undoubtedly produced a temporary stress and fear reaction, there is no evidence that it resulted in a phobia or any other permanent adverse result, although Thomas has never told his mother the details of the incident. (Testimony of Cullen, C. Garrett) Mrs. Garrett paid tuition of approximately $350 a month at the Vanguard School, including transportation by van to and from school. (Testimony of C. Garrett)
Recommendation That Petitioner's request for relief be denied by the Dade County School Board. DONE and ENTERED this 7th day of July, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phyllis O. Douglas, Esquire Dade County School Board Lindsey Hopkins Building 1410 N.E. 2nd Avenue Miami, Florida 33132 Harold Long, Jr., Esquire Suite 2382 - One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
