The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. The School Board has employed Respondent for approximately 15 years as a school security monitor. As such, at all times relevant to this proceeding, Respondent was a non- probationary “educational support employee” within the meaning of Section 1012.40, Florida Statutes, whose employment can be terminated for reasons stated in the applicable collective bargaining agreement, which is the contract between the Miami- Dade County Public Schools and the United Teachers of Dade (the CBA). Article XXI, Section 3.D of the CBA provides that educational support personnel can be terminated for “just cause.” The term “just cause” is defined by that provision of the CBA as follows: . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule [Florida Administrative Code Rule] 6B-4.009. During the 2007-2008 school year, Respondent was a school security monitor assigned to the Lawrence Center. Prior to that assignment, Respondent had been assigned to Miami Beach Senior High School (Beach High School). While at Beach High School, there was a probable cause finding that Respondent had engaged in an inappropriate sexual relationship with a high school student who was over 18 years of age. As a result, Respondent’s employment was suspended without pay for a period of 30 days. Respondent accepted the 30-day suspension and agreed not to appeal. Ms. Durden began working as a Data Input Specialist at the Lawrence Center in May of 2008. Shortly after her arrival, Respondent asked Ms. Durden (then known as Ms. Williams), who was on her way to lunch, to bring him back lunch. The request, which Ms. Durden denied, caused her to feel uncomfortable. Thereafter, Respondent came to come to Ms. Durden’s work area on several occasions and asked her for the mints that she kept on her desk. Ms. Durden believed that Respondent was leering at her. Ms. Durden clearly disliked Respondent and felt uncomfortable in his presence. On June 3, 2008, Respondent was in the parking lot area when Ms. Durden walked by to retrieve an object from her car. Respondent was talking to someone in a parked vehicle. The identity of the person in the parked vehicle could not be established and there was no evidence as to the subject of the conversation between Respondent and the unidentified person in the vehicle. As Ms. Durden walked by, Respondent tried to get her attention by yelling out to her “Hey baby.” Ms. Durden did not respond. When she was on her way back into the school, Respondent told her, “Ms. Williams, I know you heard me speaking to you.” Ms. Durden (Williams) then told Respondent, “My name is not ‘hey baby.’ My name is Ms. Williams, and you address me as such.” There was no evidence that Respondent continued to address Ms. Durden inappropriately. On June 5, 2008, Ms. Durden walked into the after care office to speak to Ms. Staples, who was working as an After Care Specialist. Respondent was in the after care office with several other employees, both male and female. When Ms. Durden walked into the after care office, Respondent blurted out “my dick is hard.” Ms. Durden immediately left the room feeling disgusted by Respondent’s remark. Ms. Staples testified that Respondent made the statement “my dick is on hard.” Ms. Staples and the other employees who had been meeting in the after care office also immediately left the office after Respondent’s statement. Ms. Staples and her colleagues were shocked by Respondent’s statement.2 On June 6, 2008, Ms. Durden and Ms. Santos passed out paychecks or pay stubs to employees. Respondent appeared at the threshold of Ms. Durden’s office, which is part of the main office, and asked for his paycheck. Ms. Durden asked Respondent to leave while she sorted through the paychecks. Ms. Durden was uncertain whether Rich was Respondent’s first name or last name. There was a verbal exchange between Respondent and Ms. Durden as to that issue. Respondent remained outside of Ms. Durden’s office, but in a position where he could observe her. Ms. Durden testified, credibly, that Respondent was leering at her. Ms. Durden became so uncomfortable that she started shaking. Prior to June 6, 2008, Ms. Durden had told Ms. Santos that she did not like Respondent and felt uncomfortable around him. Ms. Santos attempted to keep Respondent away from Ms. Durden by offering to get anything he might need from the main office and bringing it to Respondent’s duty station. On one occasion, Ms. Santos observed Respondent staring at Ms. Durden’s rear end. On June 6, 2008, Ms. Santos observed that Ms. Durden was very uncomfortable being in Respondent’s presence. She intervened by finding Respondent’s paycheck and bringing it to him. Ms. Durden reported these incidents first to Ms. Johnson-Brinson (an assistant principal) and then to Mr. Osborne (the principal). Thereafter the School Board followed all relevant procedures leading up to its vote to discipline Respondent by terminating his employment. Ms. Johnson-Brinson is not aware of any complaints from any Lawrence Center employees other than Ms. Durden pertaining to inappropriate behavior by Respondent. Mr. Osborn testified as to the reasons he recommended the termination of Respondent’s employment. Part of those reasons related to behavior by Respondent during his tenure at the Lawrence Center that was not alleged in the Notice of Specific Charges. That non-alleged behavior is irrelevant and has not been considered by the undersigned in reaching the findings and conclusions set forth in this Recommended Order.3
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the 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 19th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 2009.
The Issue This case concerns the effort by the Petitioner, School Board of Nassau County, Florida, to dismiss the Respondent, Vashti Garrett, as a teacher in the Nassau County School System at the termination of the 1979-80 school year. As grounds for this dismissal, the Petitioner has alleged that there is good and sufficient reason for the dismissal based upon the Respondent's continued emotional and psychiatric problems, which render her unfit for service as a classroom teacher in the Nassau County School System and the Respondent's continuing need for psychiatric therapy. The Petitioner further contends that the Respondent, due to past psychiatric disabilities resulting in previous leaves of absences, renders her continued service as a teacher in their system uncertain and questionable.
Findings Of Fact The Petitioner, School Board of Nassau County, Florida, is an educational unit within the State of Florida, which employs a number of teachers to carry out its function. One of those teachers is Vashti Garrett, the Respondent, who has continuing contract status with the Petitioner. It is the intention of the Petitioner to dismiss Vashti Garrett from her employment as a teacher in the Nassau County School System, effective at the conclusion of the school year 1979-80. The dismissal action is promoted pursuant to Subsection 231.36(4), Florida statutes. 2/ The Respondent has opposed this action and has requested a formal administrative hearing in accordance with Subsection 120.57(1), Florida Statutes, which hearing was conducted, resulting in this Recommended Order. The facts reveal that the Respondent returned to her position as a teacher at the Fernandina Beach Junior High School as an employee of the Petitioner in the school year 1979-80. During the pre-planning phase of that academic year, specifically in August, 1979, the Respondent and other members of the instructional staff of that school observed that Mrs. Garrett felt the other teachers were "making fun" of her and accusing her. In fact, there was no effort to derogate the Respondent. Throughout this time the Respondent appeared unduly distressed and on August 25, 1979, the Principal of her school, Eugene W. Grant, held a conference with Mrs. Garrett to discuss her problems. Robert Johnson, the Assistant Superintendent of Instruction for the Petitioner, entered the conference at a later point on that date. In the course of the conference, the Respondent would begin to laugh and then become depressed and cry. In view of her appearance and past emotional illnesses, the Principal felt it necessary to speak with the Superintendent of the School System on this subject. On August 27, 1979, a conference was held in which the Respondent, Principal Grant and Superintendent Craig Marsh were in attendance. Mrs. Garrett was somewhat ambivalent about returning to the classroom, as related in her discussion on that date, in that she at times indicated that she was unable to cope with that situation and the pressures inherent in that job and at other times would state that she felt capable of returning to the classroom. The Superintendent decided, based upon his knowledge of the present situation and the past emotional illnesses of the Respondent, that she should be kept from the classroom and be made to undergo a mental status examination to determine the future course of the employment arrangement between the Petitioner and Respondent. The names of three psychiatrists were provided to the Respondent for her to choose one of those named physicians to administer a mental status examination to her. The Respondent chose Joseph A. Virzi, M.D., a psychiatrist practicing in Jacksonville, Florida. Dr. Virzi examined the Respondent and forwarded a report to the School Board of Nassau County. The report is dated September 11, 1979, a copy of which has been introduced in evidence as Petitioner's Exhibit 7. Dr. Virzi found the Respondent to be suffering from chronic schizophrenia, paranoid reaction, severe, which is a mental illness and recommended that the Respondent not be returned to her job as a school teacher, in that she was unable to handle the stresses of that occupational role. Dr. Virzi stated in his report that the Respondent was in need of extensive psychiatric care on a routine basis and that she might benefit significantly from a medically oriented psychiatric day treatment program. This prognosis held by Dr. Virzi was that with proper treatment the patient might be able to return to work in January, 1980. He concluded by stating that in January, 1980, the Respondent would need another complete psychiatric status examination. The Superintendent met with Mrs. Garrett again on September 17, 1979, and in view of Dr. Virzi's report, indicated to the Respondent that she was being suspended with pay and would no longer be a member of the instructional staff at Fernandina Beach Junior High School. This conversation of September 17, 1979, was followed by a written communication by certified mail on September 20, 1979, from the Superintendent to the Respondent. In this correspondence matters of the conference of September 17, 1979, were reiterated and it was indicated that the suspension with pay would continue until the next regularly scheduled meeting of the School Board of Nassau County, to be held at 7:30 p.m. on Thursday, October 11, 1979. The Superintendent also indicated that she would have the opportunity to make a request for hearing and to make that request on or before October 11, 1979, and if a request for hearing was granted, she would be given the right to be represented by an attorney, to have witnesses subpoenaed, and to demand proof that the charges against her be proven. The charges referred to are outlined in this correspondence as being a statement by the Superintendent of intended recommendation that Mrs. Garrett be released from her contract for reason of medical disability as specifically set forth and described in the report of Dr. Virzi dated September 11, 1979, and as stated by Superintendent Marsh, "Your past extensive history of this identical problem". The correspondence also stated that the Superintendent would recommend to the School Board at the October 11, 1979, meeting that the Respondent be suspended without pay through the date of the hearing and concluded by stating that if no hearing was requested, the Superintendent would recommend the release of the Respondent from her contract status for reasons as described in this paragraph. On January 3, 1980, the School Hoard of Nassau County, Florida, entered an order confirming the Superintendent's suspension of the Respondent with pay until November 1, 1979, and suspending the Respondent without pay from November 1, 1979, pending further action of the Board. No mention was made about the specific date for further action. This order may be found as Petitioner's Exhibit 3 admitted into evidence. Beginning January 22, 1980, the Respondent began to undergo extensive outpatient treatment by Dr. Virzi, which included psychotherapy and the utilization of psychotropic medication. Between that date and May 19, 1980, Dr. Virzi saw Mrs. Garrett approximately sixty (60) times with roughly half of those visits occurring before March 4, 1980. On March 4, 1980, Dr. Virzi wrote to William Webb, an official with the School System. This correspondence took the form of a status update on the mental health condition of the Respondent. (At that time the Petitioner was unaware that the Respondent had undergone continuing treatment by Dr. Virzi.) Dr. Virzi's impression of the Respondent at that March 4, 1980, visit was markedly different than his initial impression of September 11, 1979. In March, Dr. Virzi felt that the Respondent carried the diagnosis chronic schizophrenic reaction, paranoid type, recovered. At that time, he recommended that Mrs. Garrett have outpatient therapy, one session per week, in order to gain more insight into her personality. The patient was no longer receiving medication in March. Further, Dr. Virzi felt that the Respondent was able to return to her work and carry out her duties as a teacher in the junior high school in Fernandina Beach. Between March 4, 1980, and May 19, 1980, Dr. Virzi continued to see the Respondent in the type of setting as described in the report of March 4, 1980. (A copy of the March 4, 1980, report of Dr. Virzi may be found as a part of Petitioner's Composite Exhibit 5 admitted into evidence.) The deposition of Dr. Virzi was taken on July 2, 1980, as found as Respondent's Exhibit 1 admitted into evidence, and at that time Dr. Virzi continued to hold the opinions as expressed by his March 4, 1980, report. On March 18, 1980, Superintendent Marsh wrote to Mrs. Garrett indicating to her that her salary was being reinstated effective March 4, 1980, in view of the report of Dr. Virzi. A copy of this correspondence may be found as Petitioner's Exhibit 4 admitted into evidence. That correspondence goes on to say that the Superintendent would recommend, at a special meeting of the School Board on March 25, 1980, that the Respondent be paid the balance of her salary for the school year 1979-1980. The letter next states that the Superintendent will recommend to the School Board that the Respondent be terminated in accordance with the provisions of Subsection 231.36(4), Florida Statutes. The stated basis for the Superintendent's recommendation was: "1. Your continued need for psychiatric therapy and your history of emotional disabilities render your placement in a classroom teach- ing position unpredictable and hence, not in the best interest of the public school system of Nassau County. 2. Your continued need for psychiatric therapy indicates a chronic medical psychiatric condition which I feel renders your services in the future questionable at best." The correspondence additionally gave information about the starting time of the School Board meeting and allowed for the Respondent to request a full hearing to be scheduled at a date subsequent to March 25, 1980, in which proceeding the Respondent could be represented by counsel and bring witnesses and to be provided a full statement of the nature of the charges against her. A formal statement of recommended dismissal of the Respondent was presented to the School Board on March 25, 1980, and a copy of this recommended dismissal is found as a part of the Petitioner's Composite Exhibit 5 admitted into evidence, the balance of that exhibit being Dr. Virzi's report. It is this statement of recommended dismissal which fashions the accusations which the Respondent has been called upon to defend against in the case now before the Division of Administrative Hearings. In response to the Superintendent's recommended dismissal petition, the Petitioner accepted the Superintendent's recommendation of dismissal of the Respondent at the conclusion of the year 1979-80 with a condition that the Respondent be paid for the period March 4, 1980, until the conclusion of the school year 1979-80 at her regular rate, but that the Respondent not be given classroom assignments or any specific assigned duties. (The Respondent did not perform any classroom assignments or other specific duties of employment for the Petitioner for the school year 1979-80 beyond pre-planning in August, 1979.) Finally, the notice and order of dismissal with pay entered by the School Board stated that final determination in the matter would be made following an evidential hearing before the Division of Administrative Hearings. A copy of this notice and order of the School Board may be found as Petitioner's Exhibit 6 admitted into evidence. After the Petitioner's decision on March 25, 1980, no further mental status examination or significant treatment was rendered to the Respondent, other than as conducted by Dr. Virzi. (Sometime in the school year 1979-1980 the Respondent did go to the Southside Free Clinic in Jacksonville, Florida, which is a mental health unit. However, the several visits to that clinic only involved initial conversations and personal history information.) In examining the medical evidence that has been adduced, Dr. Virzi's testimony and reports clearly establish that the Respondent carries the diagnosis, chronic schizophrenia, paranoid reaction, and in September of 1979 this condition was severe enough that the Respondent was unable to undertake her duties within the Nassau County School System. In contrast to this condition, following long standing and frequent treatment by Dr. Virzi, the Respondent was sufficiently recovered to be able to return to her position as teacher in the Fernandina Beach Junior High School, with the only proviso being that she receive outpatient psychotherapy, one session per week. This recovered condition was the patient's status in late May, 1980, and at the time of the evidentiary hearing in this cause. There have been other absences by the Respondent while teaching in the Nassau County School System, some of which have been related to her mental health. A synopsis of the number of days which the Respondent has been absent from the School System beginning in the years 1978-79 and continuing through the school year 1979-80 may be found as Petitioner's Exhibit 8 admitted into evidence. The Respondent's absenteeism directly attributable to her mental health began to manifest itself in the school year 1975-76, specifically in February, 1976. In that month in a conference with the Principal of Fernandina Beach Junior High School, the Respondent indicated that she could work with faculty and administration and that she was concerned about herself and wished to know if there were any complaints about her. Mrs. Garrett also made mention of some lists that had been passed around. The lists concerned names of students who were trying to get the Respondent dismissed from teaching at Fernandina Beach Junior High School in view of the allegation that Mrs. Garrett's husband was selling "dope" and the accusation that she was participating with him in the sales. Mrs. Garrett also stated that the Assistant Principal had said that she was "crazy" and that her husband had called her "crazy". This was later changed from the word "crazy" to "dense". During the process of this conference, Mrs. Garrett also accused the person who had monitored her class while the conference was proceeding of taking something from the Respondent's purse. Finally, she stated that a black student and a white student had told her she wasn't supposed to use the telephone. Mrs. Garrett later confronted the teacher who had monitored the class as related above and appeared very excited. The Respondent then accused Mary Tom Drew of going into her purse. On February 23, 1976, the Respondent did not report for work at the school and had no lesson plans available for a substitute teacher. On February 24, 1976, a call was made to the school, indicating that the Respondent would not be in for the remainder of the week of February 25 through 28, 1976. The caller indicated that the Respondent was in Plant City. On February 29, 1976, the mother-in-law of the Respondent called school officials and indicated that the Respondent would not be at school from March 1 through March 5, 1976. The mother-in-law later called back to say that the Respondent would be mailing lesson plans and that the students should continue to work out of their textbooks until those plans arrived. The Respondent was out of school from February 20, 1976, through March 15, 1976. In this same series of events, on March 3, 1976, the Assistant Principal spoke with Mrs. Garrett in Plant City, Florida, and she informed him that she would call her doctor and see if he would release her on March 15, 1976, to return to work. On March 15, 1976, Mrs. Garrett's mother called the Principal at the junior high school and stated that the Respondent had not been released from the doctor's care, and that Mrs. Garrett probably would want to receive a leave of absence. At this juncture, the school authorities did not know what the medical problem was. (By way of clarification, in the course of the hearing Mrs. Garrett indicated that allegations at school to the affect that she was assisting her husband in selling "dope" brought on a "nervous breakdown".) There was no other indications of problems in the school year 1975-76. Beginning the school year 1976-77, the first reporting date was August 29 but the Respondent did not report for work and missed the entire first week of school in that school year. Someone called for Mrs. Garrett to inform the administration of the Fernandina Beach Junior High School that she would not be at school during the first week; however, no explanation was given for missing that time and no explanation was ever given by the Respondent of why she missed the first week. When attempts were made to determine the explanation, the Respondent was evasive. On September 6, 1976, the Respondent's mother-in-law called the secretary at the school stating that the Respondent would not be at work from September 7 through September 15. The mother-in-law was told to have the Respondent call and explain this absence to the Principal. The mother-in-law made a second call to the principal and explained that Mrs. Garrett would not be available for that week due to her confinement in Plant City. The mother-in-law stated to the Principal that the Respondent would not be in attendance at the school from September 7 through September 10. On September 7, 1976, the Respondent's mother called the principal, Mr. Grant, and stated that the Respondent was in the hospital and that it was the intention of the Respondent's mother to determine the nature of the illness, On September 11, 1976, the Respondent wrote to the Superintendent of the Nassau County School System asking for medical leave through the Thanksgiving Holidays. This letter may be found as Petitioner's Exhibit 9 admitted into evidence. The Superintendent responded to the request of the Respondent and asked that Dr. Eduardo Valdes, a psychiatrist treating the Respondent indicate that it was necessary for the Respondent to have medical leave. A letter was written on October 1, 1976, a copy of which may be found as Petitioner's Exhibit 10, addressed from Dr. Valdes to the Superintendent of Schools, Albert, H. Rumph. In that letter, Dr. Valdes diagnosed the Respondent's condition as chronic undifferentiated schizophrenia and indicated that he had treated the Respondent from August 31, 1976, through September 14, 1976. The physician recommended that the Respondent be afforded a medical leave of absence for the first semester of the school year. The Respondent did not return to work until January, 1977. When she did return, she resumed her duties as a teacher and no further incidents occurred until June 10, 1977. On that date, the Respondent told the secretary to the Principal that she would need a substitute teacher and then approached the Principal and told the Principal, Mr. Grant, that she had asked the secretary for a substitute teacher. Mrs. Garrett then walked off without making further comment. The Principal called after her and received no answer. Shortly thereafter, the Principal was informed that Mrs. Garrett had left her class and, in fact, she had. She departed without leaving any instructions on the subject of the test schedule which was called to be administered on June 10, 1977. On the following Monday, June 13, 1977, the Principal and Assistant Principal spoke with Mrs. Garrett about the departure of June 10, 1977, and she responded by saying that she was not respected by the students and that her side was hurting and that she did not feel she wished to give further explanation about leaving school on the above-mentioned date. No further action was taken on that matter. In the course of the conversation of June 13, 1977, the Respondent acted defensive in relating to the inquiry made by the Principal and the Assistant Principal. In January, 1978, the Respondent missed a day of school without arranging for a substitute teacher and one additional day due to hospitalization. Respondent never related the reason for her hospitalization. In the school year of 1978-79 there were a number of absences by the Respondent for which she would give short notice and fail to arrange for a substitute teacher. Some of these absences pertained to medical reasons and were allowed by the Petitioner. During the academic year there were also deficiencies in the school records kept by the Respondent. Respondent was absent in portions of April and May of that year, for a total of twenty-three (23) days of absences in the school year. In explanation of her absences, Mrs. Garrett produced a form of accounting invoice from a doctor who was treating her. A copy of this invoice may be found as Petitioner's Exhibit 11 admitted into evidence. Petitioner's Exhibit 11 is an entry made by Dr. Roman or one of his associates who succeeded Dr. Delmazes, who had taken over for Dr. Valdes in treating Respondent's mental illness. This document indicated that Mrs. Garrett had been hospitalized since April 30 and was able to return to work effective May 9, 1979. Other incidents related to the Respondent's emotional conduct included an item during pre-planning in August of 1976 for the school year 1976-77. On that occasion there was a situation in which the Respondent was approached by another teacher, Emily Crapps, to gain the Respondent's assistance in preparing bulletin boards. The Respondent yelled at Mrs. Crapps and told her to get out of the room. This exchange was unprovoked. There were other occasions overheard by Mrs. Crapps in that school year wherein loud exchanges were occurring between the Respondent and Respondent's students. There was an exchange between Mrs. Garrett and Sandra Wright, another teacher, at sometime during the course of her employment at the Fernandina Beach Junior High School, in which the Respondent borrowed some materials from Sandra Wright and later Ms. Wright and some other teachers were talking in a teasing way about having enough classroom materials and they indicated to Mrs. Garrett that they were all merely teasing. Later on that day, Ms. Wright was approached at her car by the Respondent, who asked Ms. Wright why she was laughing at Respondent, to which Ms. Wright responded that she was not laughing at Respondent. Mrs. Garrett then stated to Ms. Wright that Ms. Wright was trying to get the Respondent fired.
Recommendation It is RECOMMENDED that the action of the Petitioner, School Board of Nassau County, Florida, against the Respondent, Vashti Garrett, be set aside and that the Respondent be allowed to return to her duties as a teacher in the Nassau County School System, in an assignment other than the Fernandina Beach Junior High School and upon condition that she receive necessary outpatient treatment as suggested by Dr. Virzi. 3/ DONE AND ENTERED this 8th day or August, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1980.
The Issue Whether Respondent's educator's certificate should be subject to discipline for alleged attempts to persuade instructional staff members to change students' failing grades to higher passing grades without academic justification, for allegedly changing the grades of one or more students to higher grades without academic justification, and for allegedly "flagging" the grades of one or more students such that the grades would not count toward the students' grade point averages, in violation of Section 231.2615(1)(c), (f) and (h), Florida Statutes (2001), and Rule 6B-1.006(3)(a) and (d), (4)(b), and (5)(a) and (h), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Respondent, Suzanne Elliott, holds Florida Educator Certificate 558267, covering the areas of biology, physical education, and guidance counseling, which is valid through June 30, 2005. Ms. Elliott has a bachelor's degree in Physical Education, Recreation and Biology, and a master's degree in Guidance Counseling at the secondary level. Ms. Elliott was employed as a guidance counselor at Merritt Island High School ("Merritt Island") in the Brevard County School District (the "District") for the 1997-1998 and 1998-1999 school years. She had held this position since 1985. Ms. Elliott had also served for several years as the cheerleading coach at Merritt Island. Ms. Elliott was the crisis counselor for the entire Merritt Island student body, and was also heavily involved in special education and standardized testing. In fourteen years at Merritt Island, and eighteen years in the field of education, Ms. Elliott had no prior disciplinary actions brought against her license. Her employee evaluations uniformly ranged from "satisfactory" to "exemplary," with the exception of her evaluation dated October 26, 1998. This evaluation was "unsatisfactory," for reasons explained in the body of this Recommended Order. Relevant District policies To "establish suitable uniform procedures for marking and reporting progress of pupils," the District has adopted the Brevard County Secondary Schools Grading Procedures, which provide the following statement of purpose: Grades shall be a measure of a student's progress and achievement in mastering the subject matter, based on the quality of work done, and reflect a comprehensive evaluation which utilizes a number of marks. A student's regular attendance, daily preparation, and promptness in completing assignments should be consistent and congruent with these grades and taken into consideration in reporting a student's progress. During the period from 1997 to 2000, the Florida legislature required that a student have a 2.0 grade point average ("GPA") to compete or participate in sports, including cheerleading. Students who graduated in 1998-1999 were required to have a "minimum cumulative grade point average of 1.5 based on a 4.0 scale for the 24 credits required for graduation and a cumulative 2.0 unweighted GPA on all courses taken after July 1, 1997, which count toward graduation or a cumulative unweighted GPA of 2.0 on all courses taken." Students who graduated in 2000 and thereafter were required to have a minimum cumulative GPA of 2.0 based on a 4.0 scale for the 24 credits needed for graduation. Three of the District's Grading Procedures, and the proper interpretation thereof, provide the context for this case: the procedure regarding grade changes; the procedure regarding grade forgiveness, or "flagging" grades for courses that a student has repeated; and the procedure regarding "failure due to absences" or "FA" as a course grade. As to grade changes, the District's Grading Procedures provide: "Grades once recorded, other than an 'Incomplete,' will not be changed without approval of the principal. For justifiable academic reasons a principal may change a grade." Marjorie Ebersbach was the Area III Superintendent for Brevard County from 1997 to 1999. Area III included Merritt Island High School. As Area III Superintendent, Ms. Ebersbach was responsible for the operation of approximately 22 schools in the Brevard County area and reported directly to the Superintendent. Ms. Ebersbach confirmed that District procedure is that a student's grade may be changed for justifiable academic reasons with the permission of the principal. Merritt Island assistant principal Katherine Halbuer testified that a grade can be changed only by the teacher who assigned the grade or by the principal for justifiable academic reasons. Ms. Halbuer stated that under no circumstances does a guidance counselor have the authority to change a student’s grade. Cocoa Beach Junior/Senior High School ("Cocoa Beach") principal Leslie Patricia Vann, former Merritt Island principal William Dugan, Jefferson Middle School principal Gary Shiffrin, and Cocoa Beach teacher Mary Jane Binney, all testified that the District procedure for changing a student's grade is that the teacher who assigned the original grade may change it for a justifiable academic reason, with administrative approval. These witnesses agreed that a guidance counselor lacked the authority to change a student's grade. As to grade forgiveness for repeated courses, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA after the course is successfully repeated is referred to in the District as "flagging." A course flag can be added to a student’s transcript so that a certain course is excluded from the calculation of a student's grade point average. Guidance counselors do have the authority to flag a student's grades. At issue in this proceeding was the timing of the flagging. Each District employee who testified on behalf of the Department stated that after the student has retaken the course, received a higher grade, and had that grade posted to his official transcript by the district, the first course grade may be "flagged" so that the lower grade is excluded from the grade point average. These witnesses testified that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Ebersbach explained that while the student is retaking the course, he has "not earned a grade to replace the previous grade, and you’re excluding something from their academic record that you have no legal authority to exclude." Ms. Vann, Ms. Halbuer, and Mr. Dugan concurred with Ms. Ebersbach that the student must complete the second course and have the higher grade posted before the first grade could be flagged and excluded from the student's GPA. Barbara Jones, a guidance counselor at Cocoa Beach, who had interned under Ms. Elliott at Merritt Island, also testified that flagging a grade was appropriate only after the student had repeated the course and the second grade had been entered. Ms. Jones stated that she learned this procedure "on the job." Grade changes and flags were posted via computer data entry. For many years prior to February 1998, the District employed an IBM mainframe computer running programs written by District staff. This system was popularly known as "IRMA." In February 1998, the IBM mainframe was replaced by an IBM AS400 server, and the homegrown programs were replaced by a commercially developed software program called "Total Educational Resource Management System," or "TERMS." As to "failure due to absences," the District's Grading Procedures provide: When a student is to receive a failing grade due to excessive absences, the following guidelines will apply: Students who have earned an average of 70 or higher [i.e., a passing grade] will receive 69 [the highest failing grade] for the grading period. Students who have earned an average between 49 and 69 will receive the grade they have earned.... The District did not set a system-wide number of unexcused absences that would merit a course grade of "failure due to attendance" or "FA." Individual schools were allowed to establish their own standards. At Cocoa Beach, an FA would be given when a student had more than nine days of unexcused absences in a given course. A student who received an FA could appeal the grade by timely filing an appeal form and going before a faculty appeal committee, which could change the FA to the grade the student would have received but for the excessive absences. However, a student whose absences were due to truancy or skipping class would not be permitted to appeal the FA grade. The Allegations In August 1998, Ms. Vann, the principal of Cocoa Beach, was approached by one of her teachers, who asked her why a guidance counselor from Merritt Island would make inquiries as to the grades of a Cocoa Beach student. Ms. Vann thought this highly irregular, believing that a counselor from another school should first contact the principal of the school with any such inquiries. Upon investigation, Ms. Vann learned that the counselor in question was Ms. Elliott, and that she had contacted three Cocoa Beach teachers regarding S.H., a Cocoa Beach student and cheerleader, who was in the process of transferring to Merritt Island. At a principals' meeting on August 26, 1998, Ms. Vann raised the issue with Mr. Dugan, the principal of Merritt Island. Mr. Dugan told Ms. Vann that if she had allegations to make against Ms. Elliott, she should put them in writing and he would consider them. At about the same time as Ms. Vann began expressing concerns about Ms. Elliott, Merritt Island assistant principal Catherine Halbuer began her own investigation of Ms. Elliott. Heather Novitsky, a newly hired data entry clerk, came to Ms. Halbuer with a handwritten list of students and courses that Ms. Elliott had given her with instructions to flag the courses. Ms. Novitsky did not know what "flagging" meant. When Ms. Halbuer instructed Ms. Novitsky on the procedure for flagging a student's grade, she discovered that the students on the list had not repeated the classes that Ms. Elliott had marked for flagging. Ms. Halbuer met with Ms. Elliott in August 19982 to explain that a flag could not be entered until a student had repeated the class and the grade had been posted. At a subsequent meeting on August 26, 1998, Mr. Dugan and Ms. Halbuer again discussed the proper procedure for flagging student courses with Ms. Elliott. At this meeting, Mr. Dugan told Ms. Elliott that a course could not be flagged before the second class had been completed and the grade posted. Ms. Elliott indicated that she understood. Meanwhile, Ms. Vann was conducting an independent investigation of Ms. Elliott's involvement with student S.H. Ms. Vann personally reviewed S.H.'s academic history and discovered that someone outside of Cocoa Beach had made three grade changes to S.H.'s record without authorization from any teacher at Cocoa Beach. Ms. Vann also discovered that someone outside of Cocoa Beach had flagged six courses for S.H., none of which S.H. had retaken at the time of flagging. On September 11, 1998, Ms. Vann sent a package to Principal Dugan documenting her investigation into the grade changes and flags that had been made to S.H.'s records. Ms. Vann's cover letter to Mr. Dugan requested that S.H.'s transcript be corrected to reflect the grades that were issued by her teachers at Cocoa Beach. In response to Ms. Vann's memorandum and accompanying materials, Mr. Dugan commenced his own investigation into the allegations. He personally reviewed the student records compiled by Ms. Vann, and concluded from the user password on the computer printouts that Ms. Elliott was the person who flagged and changed the grades for S.H. Mr. Dugan also discovered that Ms. Elliott had flagged an "F" grade in Algebra I for Student M.P., despite the fact that M.P. had not retaken the course. Mr. Dugan decided that these findings merited a thorough review of Ms. Elliott's flagging practices. Mr. Dugan contacted the District's main office, which assigned its systems analyst, Andrea Young, to compile information for Mr. Dugan's review. Ms. Young spent approximately three months compiling computer records regarding Ms. Elliott's case. On September 15, 1998, Mr. Dugan orally informed Ms. Elliott of the allegations against her and gave her 24 hours to respond. Mr. Dugan also told Ms. Elliott that she was prohibited from accessing TERMS until the allegations against her were resolved. Ms. Elliott did not respond to the substance of the allegations by September 16, 1998. However, on that date Ms. Elliott requested that Mr. Dugan put the allegations in writing so that she could obtain the assistance of her union representative. On September 17, 1998, Mr. Dugan addressed a memorandum to Ms. Elliott that set forth the following allegations: Mrs. Elliott approached three teachers at Cocoa Beach High School requesting a grade change for student [S.H.]. Mrs. Elliott did flag six grades for [S.H.] so they would not count on her gpa at approximately 6:00 p.m. on 8/27/98 and 8/28/98. Mrs. Elliott did change three grades for [S.H.] on 8/27/98 and 8/28/98. Mrs. Elliott did flag one grade for [student M.P.] so it did not count on her gpa on 8/27/98. I am requesting that you provide me with a written response to these allegations by 9:00 a.m. Monday, September 21, 1998. Also on September 17, 1998, prior to receiving any substantive response from Ms. Elliott, Mr. Dugan wrote a memorandum to Leroy Berry, the District's assistant superintendent for human resources. The memorandum stated that Mr. Dugan had completed his investigation and concluded that Ms. Elliott had in fact committed the acts described as "allegations" in his memorandum to her. Mr. Dugan further wrote that Ms. Elliott's failure to respond to the substance of his allegations within the 24-hour deadline he had given her on September 15, along with the documentation he received from Ms. Vann, led him to conclude that Ms. Elliott had changed and flagged the grades of S.H. and M.P. with the intent of making them eligible for the cheerleading squad. On September 21, 1998, Ms. Elliott gave Mr. Dugan her written response to each of the allegations: I had telephone conversations with three teachers from Cocoa Beach High School (CBHS) and explained that we had put [S.H.] on a contract—- a procedure that we use at Merritt Island High School (MIHS) for students with Failed/Attendances (FAs). I asked them if they would be willing to change the grades pending administrative approval if she followed through with the contract; she attended every day of summer school at CBHS and passed the classes. Two of the teachers said she was a good student, and they would be willing to help her. One teacher said there were no appeals processes or contracts at CBHS. I flagged courses she repeated in summer school, courses that were FAs, and courses in which she was presently enrolled. After practice on 27 and 28 August, at approximately 6 pm, [S.H.] came down to my office for counseling regarding her grades. I explained to her the effort she needed to apply to her studies, using the computer to demonstrate by making changes to letter grades. I never intended the grades to be changed permanently, evidenced by the fact that I never changed the Quality Points. Both changes are required for permanent grade changes. I did not know enough about the TERMS Program to realize that those changes I did make in demonstration to [S.H.] would be automatically saved when I exited the program. [M.P.] made up both of the courses in question in summer school and achieved the necessary grade to be eligible [for cheerleading]. On September 22, 1998, Mr. Dugan addressed to Mr. Berry a detailed memorandum in response to Ms. Elliott's memorandum of September 21. In his memorandum, Mr. Dugan stated that the contract procedure described by Ms. Elliott had never been used at Merritt Island, though he conceded that the principal might enter a contract to change the grade of a student "when faced with parental pressure on a questionable situation or to motivate a student in attendance trouble during that semester...." Mr. Dugan also noted that, according to Ms. Vann, no teacher at Cocoa Beach gave approval for a grade change. Mr. Dugan wrote that S.H. repeated only one class in summer school, that it was a class S.H. had already passed with a "B," that her grade for the course for summer school was also a "B," and that Ms. Elliott had improperly counted both "Bs" in the same course toward S.H.'s eligibility to participate in cheerleading. Mr. Dugan wrote that Ms. Elliott's flagging of S.H.'s grades of FA were both unauthorized and untimely, as was the flagging of M.P.'s grade for Algebra I. Finally, Mr. Dugan questioned Ms. Elliott's claim of ignorance as to entering grades on the TERMS system: "[A]ll counselors know anytime you change a grade on TERMS and hit enter, the screen automatically tells you the information has been taken and the record has been updated." On October 8, 1998, Mr. Dugan outlined a new allegation in a memorandum to Mr. Berry. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to access the TERMS system, in contravention of Mr. Dugan's order of September 15, 1998. At some point in early October 1998, the District suspended Ms. Elliott with pay, pending the results of the investigation. On October 26, 1998, Ms. Elliott received an official letter of reprimand stating as follows, in relevant part: This is an official letter of reprimand for your violations of School Board Policies 6Gx5-4.04 Access to Student Records, and 6Gx5-7.01(8) Compliance with Policies Required, the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.006, [Florida Administrative Code] (3)(d); (4)(a)(b)[sic]; and (5)(a) and two instances of gross insubordination to administrative directions. Not only did you request a teacher at Cocoa Beach Junior/Senior High School to change students' failing grades, you blatantly ignored my specific instructions on two occasions and changed failing grades and/or course flags of two students thereby raising their expectations to become eligible for participating on the Merritt Island High School cheerleading squad. Your access to TERMS was removed yet you deliberately went into the program utilizing another colleague's password. This letter serves to officially notify you that you no longer will be able to have access to TERMS. As of today, October 26, 1998, your suspension with pay has been rescinded by the Superintendent and you are being reassigned to the Abeyance Center, Cogswell site, effective tomorrow, Tuesday, October 27, 1998. You are to report to Kim Armellini, assistant principal, at 8:00 A.M. As you are removing your personal items on October 26, 1998, there remains no further reason for your continued presence on the Merritt Island High School campus. In early 1999, the District decided to terminate Ms. Elliott's employment. Ms. Elliott challenged that decision in DOAH Case No. 99-0207. The case was settled in November 1999, prior to hearing. Ms. Elliott voluntarily resigned her position with the District as part of the settlement. The investigation into Ms. Elliott's grade changes and flags continued even after she was removed from the Merritt Island campus and ultimately left the employ of the District. As noted above, Ms. Young's compilation of computer records relating to flags entered by Ms. Elliott continued through approximately December 1998. In October 1998, Marjorie Ebersbach took over as area superintendent and asked Mr. Dugan to bring her up to speed on any matters of concern at Merritt Island. Mr. Dugan briefed her on the Elliott investigation, and Ms. Ebersbach began her own investigation of the matter. During her personal investigation, Ms. Ebersbach met with Principal Dugan, Ms. Young, and Assistant Principal Halbuer. She also reviewed student records and concluded that Ms. Elliott had improperly flagged and changed student records. Mr. Dugan also continued his personal review of student records allegedly altered by Ms. Elliott, and finally concluded that "the evidence on file indicates Ms. Elliott continually violated . . . accepted ethical practices and she [should] be terminated." Ms. Halbuer, the assistant principal, also continued her investigation. She pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. A number of these students with altered records had already graduated. Memoranda by Ms. Halbuer outlining fresh allegations against Ms. Elliott appeared as late as February 15, 1999. Based on her personal review of the student records, Ms. Halbuer concluded that Ms. Elliott "flagged on a wide scale throughout all of her senior students, and also that some students had actual classes, based on their transcripts, that they never took, and that some students received diplomas that probably should not have received diplomas." The Evidence This section deals with the charges against Ms. Elliott for which the Department was able to produce evidence sufficient to establish a prima facie case of wrongdoing by Ms. Elliott. As will be discussed below, the passage of time and the routine destruction of records meant that the Department was unable to make a prima facie case regarding several students as to whom Ms. Halbuer's accusatory memoranda were unsupported by the documents on which she relied. Student S.H. Student S.H., an African-American female, attended ninth grade at Cocoa Beach in the 1997-98 school year. S.H. was a talented cheerleader but, by her own and her mother's testimony, she was going through a rebellious period. She fell in with the "wrong crowd" and began a pattern of skipping classes with her friends. Because of her truancy, S.H. received grades of FA in four of her ninth grade classes, including classes taught by Michael Gaudy, Michael Drake, and Mary Jane Binney. Cocoa Beach allowed students who had received a grade of FA to appeal that grade, but maintained a strict prohibition against appeals by students whose FA grades were due to skipping school. Ms. Vann, the Cocoa Beach principal, had evidence in her records that S.H. had skipped school, including records from teachers, phone calls to her parents, and referrals of S.H. to the dean’s office for truancy. Ms. Vann documented at least fourteen dates on which a teacher or administrator from Cocoa Beach contacted or attempted to contact S.H.'s parents regarding truancy, absences, grades, and leaving class. At the end of her ninth grade year at Cocoa Beach, S.H. had a GPA of 1.333, well below the 2.0 GPA required for participation in cheerleading. S.H. cheered on an independent, competitive "all star" team which included several members of the Merritt Island cheerleading squad. With the encouragement of some Merritt Island cheerleaders, S.H. approached Ms. Elliott in April 1998 about coming to Merritt Island and cheering for its team. Merritt Island was the school for which S.H. was actually zoned. She had attended Cocoa Beach because her older brother went there, but he graduated in Spring 1998. S.H. and her mother, M.H., wanted S.H. to transfer to Merritt Island. M.H. believed that Merritt Island would provide S.H. with a fresh start to her high school career away from the people with whom she'd been in trouble at Cocoa Beach. M.H. also believed that the larger African-American student population at Merritt Island would be positive for S.H. socially and academically. S.H. learned of the FA appeal process from one of the friends who had skipped school with her. This friend said that she had successfully appealed her FAs through Ms. Vann. However, when S.H. went to the Cocoa Beach office and attempted to file an appeal, her efforts were rejected as untimely. Because S.H.'s friend was white, S.H. and her mother suspected there was some racial motive in the rejection of her appeal. The evidence presented at hearing did not demonstrate that S.H.'s appeal was denied for any reason other than it was untimely. Ms. Elliott's initial reaction to hearing S.H.'s allegation of racial discrimination was to tell S.H. that there was nothing she could do. She advised S.H. to handle the problem herself, with her mother's assistance. However, M.H. subsequently told Ms. Elliott that she could not deal with the personnel at Cocoa Beach. Ms. Elliott offered to help collect information that the parent could present to the administration at Cocoa Beach to appeal the FA's. Ms. Elliott believed that Mr. Dugan might help and even intercede directly with the administration at Cocoa Beach, because Merritt Island was more lenient about granting FA appeals and because Mr. Dugan had helped her before with similar problems. Ms. Elliott was aware of several successful FA appeals at Merritt Island involving students who had more absences than S.H. Ms. Elliott also testified that Mr. Dugan had always been supportive of the cheerleading squad. Ms. Elliott advised S.H. that she would have to show "massive improvement" in her school work and spent time with S.H. to work on improving her grades. Ms. Elliott reviewed S.H.'s complete cumulative academic folder, counseled her on the racial issues she had raised, advised her on appealing the FAs, encouraged her to go to summer school, spent time with her after-hours, and placed her on the aforementioned "contract." The contract, signed on May 4, 1998, by Ms. Elliott, S.H., and M.H., stated: I, [S.H.], will attend summer school everyday [sic] during summer I and II to repeat courses I failed during my ninth grade year at Cocoa Beach High School in an effort to show my true capabilities and academic potential. In my efforts I realize that I can "audit" (x) or have my FA's changed from semester I at Cocoa Beach High School with the cooperation of my teachers from Cocoa Beach High School and/or administration from Merritt Island High School. I also realize that if I earn a D or an F during any term, as a Varsity Cheerleader at Merritt Island High School I will be on academic probation and will be required to work with a tutor one day a week. At the hearing, Mr. Dugan testified that one of his chief objections to the contract with S.H. was that Ms. Elliott did not obtain his approval. He stated that only the principal or his designee could enter into such a contract with a student. Mr. Dugan further stated: But in all of these cases, the contract would have to have the student right the wrong, whatever it was that they had done, okay? For example, you may give a student who's... passed mathematics with a C but failed it through excessive [absences]. You might write a contract with that student that if you don't miss any more than three days the next semester I would remove the FA because you've shown the fact that you can attend and will attend on time. Mr. Dugan found Ms. Elliott's contract with S.H. "totally illegal" because at the time the contract was executed, S.H. was not a student at Merritt Island. Further, Ms. Elliott was holding out the possibility of changing S.H.'s Cocoa Beach FAs with no real way of knowing whether it could be done. Ms. Elliott advised S.H. that she was ineligible for cheerleading upon her transfer in August 1998, and could not cheer until she became academically eligible. S.H. took two classes every day over her summer break. She received an "A" in one class, and a "B" in the other, with no absences. Ms. Elliott testified that in August 1998 she phoned three of S.H.'s teachers at Cocoa Beach, not to ask them to change S.H.'s FA grades in their classes, but to obtain information about S.H’s performance in their classes and to inform them of the assistance she was giving S.H. Ms. Elliott testified that one reason she called the teachers was to verify what S.H. was saying about her performance at Cocoa Beach. Ms. Elliott asked the teachers how often and why S.H. was absent from their classes, what grades S.H. would have earned but for the excessive absences, and whether she had brought an appeal of the FAs to any of them. Ms. Elliott conceded that her September 21, 1998, written response to Mr. Dugan's allegations included the statement: "I asked them if they would be willing to change the grades pending administrative approval if [S.H.] followed through with the contract." Ms. Elliott testified that this was in the nature of a shorthand response to Mr. Dugan's inquiry, and reiterated that she never directly asked the Cocoa Beach teachers to change S.H.'s grades. Ms. Elliott testified that she would have crafted her written response with more care had she understood the gravity of her situation. All three of the Cocoa Beach teachers contacted by Ms. Elliott testified at hearing. Each teacher verified that he or she was telephoned by Ms. Elliott, and that Ms. Elliott did not ask him or her to change the FA grade given to S.H. None of the three teachers recalled S.H.'s requesting an appeal of her FAs. Mike Drake taught ninth grade World Geography to S.H. during the 1997-98 school year and gave her an FA for more than nine unexcused absences. He stated that S.H. would likely have made a high "B" in his class but for the absences. Mr. Drake recalled that another teacher had circulated an e-mail throughout Cocoa Beach regarding the fact that S.H. had skipped school and that S.H.'s mother had been contacted concerning the absences. Mr. Drake confirmed that Ms. Elliott did not ask him to change S.H.'s grade. He stated that his interpretation of Ms. Elliott's purpose in calling was "gathering information." Mary Jane Binney, who taught Life Management to S.H. during the 1997-98 school year, testified that S.H. would have made a "C" in her class but for the absences. Ms. Binney testified that Ms. Elliott told her that she was helping S.H., and that Ms. Elliott "absolutely" did not ask her to change S.H.'s grade. Mike Gaudy, the athletic director at Cocoa Beach, had taught Weight Training to S.H., though he had no recollection of S.H. or of the grade she would have received but for her excessive absences. Mr. Gaudy thought it was "peculiar" that Ms. Elliott would contact him about a student who no longer attended Cocoa Beach. He was the teacher who reported his conversation with Ms. Elliott to his principal, Ms. Vann, who had him write a statement concerning his conversation with Ms. Elliott. Mr. Gaudy's written statement strongly implied that Ms. Elliott's purpose in calling was to persuade him to change S.H.'s grade. At the hearing, Mr. Gaudy testified that Ms. Elliott in fact never asked him to change a grade. The subject of grade changes came up only because Mr. Gaudy asked Ms. Elliott if that was her purpose in calling. In summary, no evidence was presented that Ms. Elliott at any time "improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification." Ms. Elliott was attempting to work out some form of grade forgiveness for S.H., contingent upon her improved performance in summer school and beyond, but there is no indication that she did anything "improper" aside from failing to involve Mr. Dugan in her efforts. At worst, Ms. Elliott failed to understand that Cocoa Beach's policy concerning FAs was more unyielding than the policy at Merritt Island, and that suspicions would therefore be aroused at Cocoa Beach when she began making inquiries about S.H.'s grades. The next phase of the narrative requires a digression on the working of TERMS. As noted above, TERMS was introduced to the District in Spring 1998. Training of District personnel on the use of TERMS began in February 1998. Ms. Elliott attended the first introductory course in February, and there learned that the entire District would immediately begin using TERMS for student scheduling. The training was to include a preview of the different "screens" on TERMS, including the scheduling screen and the attendance screen. Each type of screen required separate training. More than one hundred trainees attended the course with Ms. Elliott. They were provided no hands-on training; rather, they viewed a simulation of the TERMS program on an overhead projector and heard descriptions of the program's capabilities. One working TERMS terminal was set up to demonstrate its functionality, but the program constantly malfunctioned. Ms. Elliott testified that District personnel were skeptical about TERMS because they had heard about severe problems experienced in another large county, where the program was unable even to print transcripts. She testified that the malfunctions of the program at this introductory course intensified the general apprehension about TERMS. Ms. Elliott was not the only witness to discuss the problems with TERMS. Mr. Dugan testified that "there was an awful lot of frustration not only with my staff but with myself and all the other principals. Getting on the new system was a frustrating experience for all of us." Ms. Vann found the TERMS program "a lot more complex" than IRMA, "difficult" enough that she created her own training handbook that was ultimately circulated to all principals in the District. Mr. Dugan testified that TERMS was a "difficult program," and that it was "probably unfair" to expect the guidance counselors to use it for scheduling without adequate training. Ms. Elliott never received hands-on training on the scheduling screen. She learned on the job by scheduling students into their classes with the help of a "cheat sheet" prepared by a fellow guidance counselor who attended a later TERMS training session. She scheduled students for their Fall 1998 semester classes, asking for help when she made a mistake. Ms. Elliott received no training on the "academic history" screen, which was the screen used to enter grade changes or flags on a student's record. Ms. Elliott repeatedly requested hands-on training, but never received it. She tried to learn the program by watching what the other counselors did. Ms. Elliott testified that she had learned through "gossip of the counselors" that the TERMS program could be used as a counseling tool. She was told that it had the capability to allow a counselor to sit with a student and run hypothetical, "what if" scenarios regarding how the student's GPA could be improved or lowered depending on the grade received in a particular class or classes. Ms. Elliott was excited by this possibility, because the only way a counselor currently had to play such "what if" games was pencil and paper calculation, which was time consuming and subject to error. She believed that seeing the possible GPA improvement pop up immediately on a computer screen would be more likely to inspire the student to earn those grades, and she looked forward to using this tool with her counseling students. In fact, the TERMS program has no such "what if" capability, though systems analyst Andrea Young testified that it would be possible to write a program to give TERMS that capability. Ms. Young also testified that TERMS automatically saved any grade changes entered, without giving the user any opportunity, in the form of a "save" warning or otherwise, to rescind a grade entry. On the evening of August 27, 1998, after cheerleading practice, Ms. Elliott sat down in her office with S.H. to review her summer school grades on the "academic history" screen of the TERMS program. At this point, Ms. Elliott had seldom if ever attempted to manipulate data on the academic history screen. She had never changed letter grades, though she had entered flags for repeated courses. Ms. Elliott attempted to show S.H. what her GPA would be after her summer school grades were posted, and what it would be if S.H. were able to obtain the letter grades she would have received in the three classes at Cocoa Beach but for her excessive absences. Ms. Elliott entered the grades, but noticed that the grade changes resulted in no change in S.H.'s quality points or overall GPA on the TERMS screen. Ms. Elliott was perplexed. She knew from experience that flagging the grades would change the GPA, so she entered flags next to each grade. Flagging the grades did change the GPA, and enabled her to counsel S.H. Ms. Elliott testified that her only intention was to motivate S.H., to show her what would happen if she could successfully appeal the FAs from Cocoa Beach. She told S.H. that she would not likely raise her GPA sufficiently to be eligible for cheerleading in her first semester at Merritt Island, but that it would be possible to attain eligibility in her second semester. S.H. testified at the hearing, and completely corroborated Ms. Elliott's version of events. She confirmed that Ms. Elliott told her she was not eligible to cheer for Merritt Island. S.H. testified that her main concern at the time was to get away from Cocoa Beach, not to cheer for Merritt Island. She was already cheering for an elite competitive team away from school. S.H. testified that she began to cheer for Merritt Island during the second semester of her tenth grade year. Ms. Elliott testified that when she used the old IRMA system, the screen would clear upon signing off. IRMA required an affirmative keystroke to make grade changes permanent. Ms. Elliott did not realize until the evening of August 27, 1998, that TERMS made the changes automatically. Ms. Elliott returned to S.H.'s record in the TERMS program the next evening, August 28, 1998. Ms. Elliott testified that she was determined to figure out how to make grade changes on the TERMS program, and how to correct the erroneous grade changes and flags she had entered the previous evening. She had no better luck on the second night. Ms. Elliott testified that she never intended to make permanent changes in S.H.'s records. She expected to change the grades back to their correct status when she received S.H.'s cumulative folder from Cocoa Beach. She never made the corrections because the investigation commenced and she was barred from using TERMS before she had an opportunity to do so. The only evidence that Ms. Elliott altered S.H.'s records in order to make her eligible for cheerleading came from Mr. Dugan, who testified that S.H. cheered for Merritt Island at a Spring 1998 football jamboree before she was even a student at Merritt Island. Mr. Dugan also testified that he had "personal knowledge" that S.H. cheered for Merritt Island at the first three football games in Fall 1998, though he did not elaborate on the nature of this personal knowledge.3 He testified that he would have believed Ms. Elliott's story about playing "what if" games on the TERMS program, had she not placed S.H. on the cheerleading squad. Ms. Elliott, S.H., and M.H. testified that they all understood S.H. was not eligible to cheer during the Fall semester of 1998. S.H. testified that she was allowed to practice with the team, and was allowed to wear the uniform to games but was not allowed to cheer with the team. The last point accounts for the contradiction between Mr. Dugan's testimony and that of Ms. Elliott and S.H. Mr. Dugan testified that a cheerleader who did not have a 2.0 GPA could work out and practice with the team, but was not permitted to wear the uniform or cheer at school activities. Ms. Halbuer, the assistant principal at Merritt Island and a former junior varsity cheerleading coach, confirmed Mr. Dugan's statement that an ineligible cheerleader cannot wear the uniform. According to her own testimony, S.H. was allowed to wear the cheerleader uniform to games before she was eligible. The weight of the testimony establishes that Ms. Elliott should not have allowed S.H. to wear the uniform. However, despite Mr. Dugan's testimony, the evidence is persuasive that Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of 1998, and that S.H. did not actually cheer with the team at any games prior to becoming eligible in the Spring semester of 1999. Ms. Elliott's testimony as to how S.H.'s grades came to be changed and flagged is persuasive and credited. Ms. Elliott was negligent in failing to take steps immediately to correct S.H.'s grades. Rather than waiting for S.H.'s cumulative file to come over from Cocoa Beach, Ms. Elliott should have approached her superiors at the first opportunity to explain what happened and obtain assistance in correcting the record. However, the evidence presented at the hearing did not demonstrate that Ms. Elliott intentionally altered S.H.'s grades to make her eligible to cheer for Merritt Island. Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of the 1998-99 school year. Student M.P. Student M.P., a white female, attended ninth grade at Jefferson Junior High School ("Jefferson") in the 1997-98 school year. She transferred to Merritt Island to begin tenth grade in Fall 1998. M.P. was a cheerleader, and attended summer cheerleading camp with Ms. Elliott during the summer of 1998. In the ninth grade at Jefferson, M.P. took Algebra I during her first semester and received an "F." She was placed in Applied Math I for the second semester of ninth grade and received a "D." Two semesters of Applied Math I are considered the equivalent of one semester of Algebra I. At the end of ninth grade, M.P. was advised by her counselor at Jefferson that she should repeat Algebra I during the 1998 summer session. She applied to take Algebra I, but was told that it was not available. Therefore, she signed up for two semesters of Applied Math I. M.P. earned a "C" for the first semester and an "A" for the second semester of Applied Math I during summer school. On August 27, 1998, Ms. Elliott entered flags for M.P.'s ninth grade "F" in Algebra I and "D" in Applied Math I, meaning her grades in those courses would not count toward M.P.'s GPA. Ms. Elliott's logic was that, because Applied Math I is considered an equivalent course to Algebra I, M.P.'s two semesters of Applied Math I in summer school could replace her two semesters of Algebra I and Applied Math I in the ninth grade. The two flags entered by Ms. Elliott made M.P. eligible to cheer during the 1998 fall semester at Merritt Island. Believing M.P. to be eligible, Ms. Elliott permitted M.P. to cheer at three Merritt Island football games in August and September 1998. During his September 1998 investigation of Ms. Elliott, Mr. Dugan discovered the flag for Algebra I on M.P.'s records. Noting that M.P. had never retaken Algebra I, and declaring that a flag was appropriate only where a student has retaken the identical course, Mr. Dugan ordered the flag removed. With the "F" in Algebra I returned to the calculation, M.P.'s GPA fell below 2.0. Mr. Dugan ordered M.P. removed from the cheerleading team in late September 1998. He had a meeting with M.P.'s parents at which he told them that "something was going on," that grades had been changed that should not have been changed, and that M.P. was no longer eligible to cheer for Merritt Island. M.P.'s parents approached Ms. Elliott to find out what happened. Ms. Elliott did not believe that Mr. Dugan's insistence that only identical courses were eligible for flagging was consistent with Florida Department of Education policy. She telephoned Sharon Koon, her contact at the Department of Education, who verified that Algebra and Applied Math are viewed as equivalent and that the "F" in Algebra I could be flagged because M.P. took two semesters of Applied Math I during summer school. On October 8, 1998, M.P.'s parents returned to Mr. Dugan to inform him of Ms. Elliott's findings. Mr. Dugan was upset that Ms. Elliott had discussed the matter with M.P.'s parents before talking to him about the matter. He nonetheless consulted Daniel Scheuerer, the District's assistant superintendent for academics, who informed him that the two semesters of Applied Math I could indeed substitute for Algebra I. Therefore, Ms. Elliott's flag of M.P.'s "F" grade in Algebra I had been correct. However, Mr. Scheuerer also noted that if both semesters of Applied Math I were used to forgive M.P.'s grade in Algebra I, then there was nothing that could be used to forgive M.P.'s "D" grade in Applied Math I for the second semester of ninth grade. Thus, Ms. Elliott's flag of the "D" grade for Applied Math I would have to be removed even as the flag for M.P.'s "F" in Algebra I was reinstated. The end result was that M.P. remained ineligible for cheerleading. The evidence regarding M.P. establishes no more than a good faith misunderstanding regarding equivalent courses by Ms. Elliott. It was apparent that Mr. Dugan himself misunderstood the application of equivalencies prior to consulting Mr. Scheuerer. There was insufficient evidence that Ms. Elliott intentionally entered improper flags for M.P. in order to make her eligible for the cheerleading squad. Improper Use of Password As noted above, Mr. Dugan's October 8, 1998, memorandum to Mr. Berry outlined a new allegation against Ms. Elliott. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to gain access to the TERMS system, in contravention of Mr. Dugan's order that Ms. Elliott was not to use TERMS while she was under investigation. It must be noted that the allegation of improper use of Ms. Peters' password was not among the factual allegations set forth in the Administrative Complaint. No objection was lodged by counsel for Ms. Elliott on this basis. Ms. Elliott was aware of this allegation and fully joined the issue at the final hearing. It is found that the pleadings of the Administrative Complaint were effectively amended to conform to the evidence. Kathleen Peters was the director of guidance at Merritt Island. She was Ms. Elliott's direct superior. On September 30, 1998, Ms. Peters called in sick with a migraine headache. She was in the midst of rearranging the schedules for Spanish classes, and had a list of changes that had to be entered on the computer that day. She phoned the guidance office and reached Ms. Elliott, who was the only guidance counselor present at Merritt Island on that day. Ms. Peters explained the situation to Ms. Elliott, and asked her to make the schedule changes and corrections. Ms. Elliott told Ms. Peters that she could not use her own code to access the TERMS program. Ms. Elliott did not tell Ms. Peters that Mr. Dugan had prohibited her from using TERMS. At the hearing, Ms. Elliott indicated that her reticence was largely due to embarrassment over the investigation of her computer use. She was unsure whether her colleagues in the guidance office knew about the investigation, and was unsure herself of the investigation's scope and how much information she should share with Ms. Peters. Ms. Elliott asked Ms. Peters for her code to the TERMS system. Ms. Peters saw nothing unusual in this request, because it was not uncommon for TERMS to deny access to some users for apparently arbitrary reasons. Ms. Peters testified that she had been denied access on occasion. Ms. Peters gave her code to Ms. Elliott. Ms. Elliott attempted to access TERMS on her own computer, using Ms. Peters' code. She was denied access. She thought that the code might work if entered on Ms. Peters' computer. However, given the allegations that had already been made against her, Ms. Elliott thought she ought not be seen going into Ms. Peters' office and trying to use Ms. Peters' computer. She decided simply to tell Ms. Peters that she had tried but could not access TERMS. Ms. Elliott testified that she did not make changes to any records using Ms. Peters access code. Her testimony on this point was confirmed by Mr. Dugan, who admitted at the hearing that a subsequent investigation revealed no records that had been accessed by Ms. Elliott by way of Ms. Peters' security code. On October 5, 1998, during a scheduling discussion, Ms. Peters learned from Ms. Halbuer that Ms. Elliott was prohibited from using the computer. Ms. Peters then reported to Ms. Halbuer that Ms. Elliott had obtained her access code on September 30. Ms. Halbuer relayed this information to Mr. Dugan, who added this incident to the list of allegations related to Ms. Elliott in his memorandum of October 9, 1998: On September 15, 1998, I informed you that you were not permitted to use TERMS until the investigation reference [sic] the allegations against you were resolved. On Wednesday September 30, 1998, Mrs. Elliott did request and receive Mrs. Peters security code and did access TERMS without requesting authorization or receiving authorization. This allegation was sustained by the evidence at least insofar as Ms. Elliott obtained Ms. Peters' code and attempted to access TERMS. Ms. Elliott's culpability is mitigated by the exigency of the situation and by the fact that she did not actually make use of Ms. Peters' security code. Nonetheless, Ms. Elliott well understood that she was prohibited from accessing TERMS. There were numerous options available to her that did not involve direct insubordination to Mr. Dugan's directive. She could have obtained the assistance of the data entry clerk. She could have approached Mr. Dugan or Ms. Halbuer with her dilemma. She could have simply leveled with Ms. Peters as to why she was unable to use her own security code. However wronged she felt by the ongoing investigation, Ms. Elliott had no authority to disregard Mr. Dugan's order. Flagging in general As noted above, the investigation of Ms. Elliott continued even after the District removed her from Merritt Island and terminated her employment. In particular, Ms. Halbuer, the assistant principal, pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. At the hearing, the Department was unable to produce the complete files of some of the students whose records Ms. Halbuer investigated, because school policy dictated destruction of her investigative records after the passage of a certain amount of time. The complete files would have contained the final, official transcripts of the students as well as Ms. Elliott's counseling notes. In some instances, the only proof offered was Ms. Halbuer's conclusory memoranda attesting that certain students' grades had been improperly flagged. In other instances, only the unofficial, editing copy of the transcripts was provided. Ms. Halbuer's honesty is not in doubt. However, it would be inherently unfair to require Ms. Elliott to mount a defense as to these students, more than four years after the fact, without access to the cumulative files and her own counseling notes to refresh her memory. Thus, it must be found that the Department failed to provide prima facie evidence as to any of the fifty-six students save those discussed below. Ms. Elliott's understanding of the flagging procedure was markedly different than that of the administrators. To reiterate, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA is referred to in the District as "flagging." The text of the Grading Procedures quoted above does not expressly provide instruction as to the proper time for entry of a course flag. However, each District witness who testified on behalf of the Department stated that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the second grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Elliott testified that she never saw the written grade forgiveness procedure until after the allegations here at issue were first lodged, when her union representative obtained a copy from the District. Ms. Elliott first learned that the District had a forgiveness policy in the early 1990s when she was being trained by Nancy Rhoda, who was then the guidance department chair. Ms. Elliott was instructed to check the students' records for courses that they repeated, and to have those courses flagged. Ms. Elliott's consistent understanding of the policy was that a course could be flagged while the student was repeating the course. Ms. Elliott was one of three guidance counselors at Merritt Island, and was responsible for scheduling approximately 500 students every semester. At times, she was assigned upwards of 700 students. Part of her duties was to schedule her students into classes they wanted to repeat pursuant to the forgiveness policy. Each semester comprised three six-week grading periods. At the close of each six-week grading period, Ms. Elliott would receive computer printouts of each of her assigned students' grades. Thus, there would be a first, second, and third six-week report of the grades her students were receiving in their respective classes. Ms. Elliott typically flagged after she had two six-week grade reports before her, thus having a relatively solid basis for anticipating that the student was going to pass the repeated course. She testified that she flagged courses only when she was convinced the student was "doing fine" in the repeated course. Ms. Elliott would compile a list of students and courses to be flagged and give it to Jan Amico, the data entry clerk, after the second six-week grading period. The flags would be entered during the thirteenth or fourteenth week of the eighteen-week semester, depending on how long it took Ms. Elliott to meet with each student and review their progress. By this time, Ms. Elliott would know whether the student was passing the repeated class. Ms. Amico, who was the data entry clerk at Merritt Island for four years, testified at the hearing. She confirmed that Ms. Elliott's method of flagging had been consistent during Ms. Amico's tenure at Merritt Island. During the first six weeks of a semester, Ms. Elliott assisted all of her assigned students with their class scheduling problems. During the second six weeks, Ms. Elliott typically had more time to review each of her students' grades via the computer printouts provided each guidance counselor. She went through the grade printouts and contacted students who were failing classes to offer academic counseling and tutoring while they still had roughly nine weeks to improve their final semester grade. While Ms. Elliott tried to meet with each student in her charge during the middle of the term, she made it a priority to meet with students who were having difficulty passing classes, those needing special attention, and those she felt might need more support from their parents. If a student received a "D" or "F" grade on the first or second six-week grading report, Ms. Elliott would counsel that student. She would also meet with the teacher to see what could be done to help the student. If needed, Ms. Elliott would arrange for tutoring by one of the volunteers she had recruited from the community. These tutors included her own husband, Joe Elliott, who tutored many students in math. At the end of the semester, Ms. Elliott would meet with her students again. They would review the student's unofficial transcript to make sure the recorded grades were correct, and make any necessary corrections. If the student received a failing grade for a repeated class, Ms. Elliott would have the flag removed from the student's record. Ms. Elliott testified that she was in constant contact with college admissions officers, who asked her to flag courses so they could determine whether their applicants were retaking failed courses. Ms. Elliott stated that the admissions officers followed the students' progress and liked to know whether students applying to their colleges were making extra efforts to master difficult materials. Ms. Elliott testified that she had followed this flagging procedure since the early 1990's, that the teachers, her direct supervisor, the school's department chairs, and the assistant principal in charge of guidance all knew her method for flagging grades, and that no one had ever told her it was inappropriate until Ms. Halbuer did so in August 1998. Ms. Elliott testified that even when Ms. Halbuer told her that she should wait until the end of the semester to flag courses, there was no implication that Ms. Elliott had been doing anything wrong. Rather, Ms. Halbuer indicated that the new data entry clerk was just learning the TERMS system and was overwhelmed with work, and so the entering of course flags would have to wait. As a general matter, it is found that Ms. Elliott's practice of entering the flags prior to the student's receiving a final grade in the repeated course was against the District's policy as generally understood by the District administrators. However, nowhere was this general understanding reduced to writing in unequivocal terms. The understanding may be inferred from the written Grading Procedure, but nothing in the procedure may fairly be read to forbid Ms. Elliott's longstanding method of flagging. To the extent that Ms. Elliott's flagging of individual student grades followed the procedure she described, i.e., the student was enrolled in the repeated class, appeared to be passing the class at the two-thirds point of the semester when the flag was entered, and Ms. Elliott corrected the record at the end of the semester, she cannot be found to have violated a clearly stated policy of the District. Mr. Dugan, Ms. Halbuer, and Ms. Ebersbach all testified that Ms. Elliott's method of flagging artificially inflated her students' GPA's and distorted their relative class standing. This concern was valid but transitory, to the extent that Ms. Elliott followed her stated procedure. A student's GPA would be inflated for the four or five weeks of the semester between the time the flags were first entered and the final grades were posted. After the grades were posted, the flag would either be validated or removed by Ms. Elliott, ensuring the accuracy of the GPA and class standing reflected on the official transcript. As noted above, the Department was not able to produce the complete files for all of the fifty-six students whose records Ms. Elliott is alleged to have improperly flagged. The students discussed below were those for whom the Department was able to produce records sufficient to establish the circumstances of the flagging and to refresh Ms. Elliott's memory as to those circumstances. As to Student B.H., Ms. Halbuer discovered that Ms. Elliott entered a course flag for B.H.'s "F" grade in Algebra I Honors for the first semester of the 1995-96 school year, despite the fact that B.H. repeated Algebra I rather than the honors course. Ms. Halbuer testified that it is improper to flag an honors course with the grade from a regular course, even where the course material is the same. Ms. Elliott conceded that she flagged the honors course based on B.H.'s successfully completing the regular Algebra I course. Her rationale was that a student must receive a teacher's recommendation to enroll in an honors course, and no teacher would have recommended B.H. to repeat Algebra I Honors after she failed it once. Also, Ms. Elliott believed it proper to enter the flag because the course work in Algebra I was the same as Algebra I Honors, the only difference being that the latter class would be smaller, have a better teacher, and involve more homework. Ms. Elliott did not consult with her superiors prior to entering this flag, which had the effect of increasing B.H.'s GPA. It is found that Ms. Elliott improperly flagged B.H.'s grade for Algebra I Honors, but that she did so in a good faith, though mistaken, belief that it was proper to do so. As to Student D.H., Ms. Halbuer testified that she personally compiled and reviewed D.H.'s student records and found that Ms. Elliott entered an improper flag for D.H.'s "D" and "C" grades in Algebra II Honors for the first and second semesters of the 1995-96 school year, though D.H. repeated regular Algebra II. As with Student B.H., D.H. was not entitled to receive grade forgiveness for the grades received in the honors course when the honors course was not retaken. It is found that Ms. Elliott improperly flagged D.H.'s grade for Algebra II Honors, but that she did so in a good faith, though mistaken belief, that it was proper to do so. As to Student L.H., Ms. Halbuer found that Ms. Elliott flagged an "F" grade L.H. received in Algebra I in the second semester of the 1995-96 school year. For this flag to have been appropriate, L.H. would have had to either repeat the second semester of Alegbra I or complete two semesters of Applied Math II. L.H. in fact completed only one semester of Applied Math II. Ms. Halbuer testified that without the two semesters of Applied Math II or a successfully completed second semester of Algebra I, L.H. did not have the requisite math requirements for graduation. L.H. nonetheless was allowed to graduate from Merritt Island in 1998 without ever taking the second semester of Applied Math II, with a transcript certified by Ms. Elliott. Ms. Elliott testified that L.H. had the three math credits required to graduate, and met the graduation requirements that were in place for the class of 1998. It is found that the Department failed to demonstrate that L.H. should not have graduated, but did demonstrate that Ms. Elliott improperly flagged L.H.'s grade for Algebra I and offered no adequate justification for having done so. As to Student J. E.-N., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed the student's records and found that Ms. Elliott entered an improper course flag for an "F" in Classical Literature and an "F" in Applied Math III, both for the first semester of the 1997-98 school year. Ms. Elliott certified J. E.-N. for graduation in 1998. Without the two flags, J. E.-N. would not have had the requisite 2.0 GPA for graduation. Ms. Elliott admitted flagging the Applied Math III grade, but stated that she did so pursuant to a precedent set by Mr. Dugan when he was an assistant principal at Merritt Island. J. E.-N. was a student with very limited proficiency in English. Ms. Elliott testified that Mr. Dugan's practice had been to apply forgiveness for math classes to such students once they had passed the high school competency test in math. J. E.-N. had passed the high school competency test. As to the flag for Classical Literature, Ms. Elliott testified that J. E.-N. took English IV in night school, and that English IV was equivalent to Classical Literature. It is found that Ms. Elliott improperly flagged J. E.-N.'s grade for Applied Math III before consulting with Mr. Dugan or some other superior to ascertain that she was applying a recognized school policy. Ms. Elliott's flag of the Classical Literature class was another example of her belief that "equivalent" courses could count as repeated courses for purposes of flagging, whereas the administrators who testified consistently held that only identical courses could be repeated for forgiveness. As to both flags for J. E.-N., it is found that Ms. Elliott entered them in a good faith, though mistaken, belief that it was proper to do so. As to Student A.L., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed A.L.'s student records and found that Ms. Elliott improperly flagged a tenth-grade Algebra II Honors course prior to A.L.'s completing the same course and receiving a higher grade, which is against their interpretation of district policy. A.L. in fact repeated Algebra II Honors and passed the course in the eleventh grade. The evidence demonstrated that Ms. Elliott flagged the course prior to A.L.'s having successfully completed the retaken course, but that she did so in the good faith belief that it was proper to do so. Student M.M. had completed ninth grade at Jefferson Middle School, then transferred to Merritt Island for tenth grade in the 1998-99 school year and participated in cheerleading. Gary Shiffrin, the principal at Jefferson Middle School, testified that M.M. returned to the middle school during the fall of her tenth grade year and asked Mr. Shiffrin if she could speak to one of her former teachers. After the teacher spoke to M.M., Mr. Shiffrin learned that M.M. had requested the opportunity to make up some work she had missed from the previous semester at Jefferson Middle School. Mr. Shiffrin denied M.M.'s request to make up work in an attempt to receive a higher grade, because "the time element had certainly passed." Because he thought M.M.'s request was "kind of unusual," Mr. Shiffrin contacted Mr. Dugan and informed him of what had taken place. Mr. Dugan investigated the matter and discovered that, on August 13, 1998, Ms. Elliott had entered course flags for two semesters of Spanish I from M.M.'s ninth grade year at Jefferson Middle School. The resulting GPA made M.M. eligible to cheer. On August 21, 1998, Ms. Halbuer pulled and reviewed the records of all of Ms. Elliott's cheerleaders. She concluded that M.M. should not have had course flags on her record. She discussed the flagging issue with Ms. Elliott, as described above. On August 24, 1998, Ms. Elliott removed the flags. Removal of the flags meant that M.M. was no longer eligible to cheer. Her parents sought over $700.00 in reimbursement of cheerleading expenses from Merritt Island as a result of this incident. In the case of M.M., the Department did not offer complete records to indicate whether the student was enrolled in the Spanish courses at the time Ms. Elliott flagged her prior grades. Ms. Elliott contended that her removal of the flags was not an admission of wrongdoing, but an indication of her willingness to accept direction from Ms. Halbuer on the issue of flagging. Without the complete records, it cannot be determined whether Ms. Elliott flagged the grades pursuant to her understanding of the flagging policy, or whether she did so without any justification at all. It is found that the evidence was insufficient to demonstrate that Ms. Elliott violated clear District policy in flagging the grades of M.M. As to Student B.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed B.M.'s student records and discovered that Ms. Elliott had improperly flagged a "D" grade in Algebra II for the second semester of the 1997-98 school year. The flag was entered on August 13, 1998, though B.M. did not enroll for the second semester of Algebra II until February 1999. On February 15, 1999, Ms. Halbuer instructed the data entry clerk to remove the flag, thus reducing B.M.'s GPA. Ms. Elliott testified that B.M. was a learning disabled student whose parents monitored his progress closely to ensure he would be eligible for college. Ms. Elliott met with B.M.'s parents in August 1998, at the start of B.M.'s senior year. The parents were aware of the availability of grade forgiveness, and wanted to make sure Ms. Elliott knew that their son would be repeating both semesters of Algebra II during the 1998-99 school year. Ms. Elliott flagged the second semester of Algebra II with the intent of monitoring B.M.'s progress throughout the year and obtaining tutoring assistance if he encountered difficulty. Ms. Elliott testified that she mistakenly neglected to flag the first semester of Algebra I. Ms. Elliott testified that the flag served to notify colleges that B.M. was repeating the entire year of Algebra II, a sign of maturity in attempting to improve his grades and master the material. Ms. Elliott testified that she did monitor B.M.'s progress until she was forced off the Merritt Island campus. It is found that Ms. Elliott's flagging of B.M.'s second semester Algebra II course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had even enrolled to repeat the class. The distortion of B.M.'s GPA would have endured, not for a few weeks as in most instances of Ms. Elliott's flags, but for the entire 1998-99 school year, had Ms. Halbuer not removed the flag. Ms. Elliott testified that B.M.'s overall GPA was not inflated because there were other repeated classes on his transcript for which he did not receive credit. Ms. Elliott may have been correct on this score, but cannot justify an improper flag by pointing to other flags that should have been but were not entered. Ms. Elliott's testimony as to her salutary reasons for entering the flag is credited, but is insufficient to justify the timing of the flag in this instance. As to Student A.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed A.M.'s student records and found that, on August 26, 1998, Ms. Elliott entered an improper course flag for A.M.'s "D" grade in Algebra I for the first semester of the 1995-96 school year. This flag was entered after Ms. Halbuer's initial August meeting with Ms. Elliott as to the proper flagging procedure. A.M. was enrolled to retake Algebra I at the time of the flag, but had only just commenced the class. A.M.'s grade in the retaken Algebra I was not posted until January 1999. It is found that Ms. Elliott's flagging of A.M.'s first semester Algebra I course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had demonstrated progress sufficient to satisfy Ms. Elliott that she would likely pass the retaken course. As to Student B.W., Ms. Ebersbach and Ms. Halbuer testified that they each personally reviewed B.W.'s student records and discovered that, on September 10, 1998, Ms. Elliott changed B.W.'s letter grade in Integrated Science from a "D" to a "B" for the first semester of the 1998-99 school year. While conceding that her computer code appeared on the grade change, Ms. Elliott flatly denied changing B.W.'s grade. B.W. was not a student assigned to Ms. Elliott, and she had no recollection of him. Her planning book for the relevant date and time indicated that she was not even in the guidance office when the grade change was made. Ms. Elliott theorized that another counselor may have made the change, using her code. Ms. Elliott's denial is credited. Her testimony throughout this proceeding was forthright and honest, even when detrimental to her own case. Aside from the S.H. situation, which she adequately explained, Ms. Elliott was accused of changing a grade only in this one instance out of fifty-six alleged violations of District policy. It is found that the Department failed to demonstrate that Ms. Elliott changed B.W.'s Integrated Science grade. Testimony was also offered as to the following students: J. McD., S. McC., P.L., M.L., S.K., K.L., and a second student with the initials D.H. In the cases of these students, the Department failed to produce records sufficient to permit Ms. Elliott to answer the charges. The Department proffered the transcripts of S.K., K.L., P.L., S. McC., and J. McD. at the hearing as Exhibits 54 through 58. These were not admitted because they had not been provided to Ms. Elliott during the pre-hearing discovery process. It is noted that the failure to provide these transcripts to Ms. Elliott prior to the hearing was not due to any negligence or misfeasance by counsel for the Department. The documents were simply unavailable to the Department before the final hearing began. E. The "vendetta" defense Evidence was presented at the hearing aimed at demonstrating that Mr. Dugan, the principal of Merritt Island, pursued these allegations against Ms. Elliott not on their merits but because he held a longstanding grudge against her. This grudge was alleged to have its origin in Ms. Elliott's testimony in the criminal trial of Doris Roberts, a former teacher charged with committing sexual acts with students at Merritt Island. At the trial, there was some conflict in the testimony as to whether Mr. Dugan, then an assistant principal, had ignored information that should have led him to investigate Ms. Roberts well before her activities were finally exposed and stopped. Ms. Elliott's testimony at the criminal trial is claimed to have contradicted Mr. Dugan's testimony on that point. Ms. Elliott claimed that every school employee whose testimony at the criminal trial contradicted that of Mr. Dugan was subjected to harassment by him, and either retired from the District or transferred away from Merritt Island. Ms. Elliott presented the testimony of two witnesses, Marvin Gaines and Doris Glenn, who Ms. Elliott alleged were victims of Mr. Dugan's vendetta. Their testimony indicated that Mr. Dugan could be a harsh administrator, could be less than straightforward in his dealings with employees, and engaged in juvenile and unprofessional name-calling when displeased with subordinates. Ms. Glenn, a retired assistant principal with 33 years of experience at Merritt Island, made it clear that Mr. Dugan tended to be arbitrary. One's relationship with Mr. Dugan "depended on what he had for breakfast." Ms. Glenn went on say, "If you were in, you were in. If you were out, buddy, you were out. I mean solid out." Ms. Glenn testified that she spent a good deal of time in Mr. Dugan's bad graces, and attributed her retirement to the harassment ensuing from her testimony in the Roberts case. Significantly, Ms. Glenn stated that she had never known Mr. Dugan to invent false charges in an effort to harm an employee. Mr. Dugan would go over the work of a disfavored employee with a fine-tooth comb. In her words, "He'd be looking for [something wrong] if you were on his out list. He would be looking for any little flake of dandruff." If Mr. Dugan "got on you," then "you'd better be strong and you'd better be ethical. You better be able to clean your plate up good because if you messed up he'd have your ass." However, Ms. Glenn did not believe that Mr. Dugan would fabricate allegations against an employee. Mr. Gaines, who had 35 years with the District including ten years at Merritt Island, also had a poor relationship with Mr. Dugan. Like Ms. Glenn, Mr. Gaines believed that Mr. Dugan had a "list" of those he disliked. Mr. Gaines described Mr. Dugan as a "very retaliatory person" and a "big liar." However, the animosity in Mr. Gaines' case appeared related less to the Roberts case than to the fact that Mr. Dugan lobbied District administrators to pass over Mr. Gaines for a promotion. In fact, Mr. Gaines described his relationship with Mr. Dugan as "all right for a while" in the immediate aftermath of the Roberts case. While Mr. Gaines believed that Mr. Dugan had lied to him concerning the promotion, he had never known Mr. Dugan to fabricate allegations of wrongdoing. In summary, there was credible evidence that Mr. Dugan was vituperative and would not hesitate to go after a subordinate against whom he held a grudge. Mr. Dugan denied any such grudge against Ms. Elliott. Aside from the investigation itself, Ms. Elliott offered no evidence that Mr. Dugan was pursuing a vendetta against her. To the contrary, she testified that Mr. Dugan had been supportive of the cheerleading team. It is also noted that Mr. Dugan did not initiate the investigation of Ms. Elliott. Ms. Halbuer and Ms. Vann separately approached him with suspicions as to Ms. Elliott's actions. When Ms. Vann discussed her allegations at the principals' meeting, Mr. Dugan was not particularly eager to pursue them. He told Ms. Vann to document her allegations in writing before he would consider them. In any event, an alleged vendetta by Mr. Dugan against Ms. Elliott would have relevance only as a motive for bringing false allegations against her. No evidence was presented that Mr. Dugan ever fabricated evidence against any employee, including Ms. Elliott. The alleged grudge may have spurred Mr. Dugan to investigate the matter more fully. However, his motive is irrelevant because his factual allegations were essentially accurate, even though the conclusions he drew from them were overstated. IV. Summary of Findings Three material allegations of fact were set forth in the Administrative Complaint. The first allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification. It is found that the Department failed to offer clear and convincing evidence that Ms. Elliott improperly attempted to persuade the three faculty members from Cocoa Beach to change the grades of Student S.H. In fact, all three of the faculty members testified that Ms. Elliott did not ask them to change the grades. The second factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent changed the grades of one or more students to a grade higher than that assigned by the instructional staff member. These changes were made without academic or other proper justification. It is found that the Department offered clear and convincing evidence that Ms. Elliott changed the grades of Student S.H. However, the evidence also demonstrated that Ms. Elliott made those changes as a demonstration to S.H. of how she could potentially raise her GPA. Ms. Elliott had no intention of effecting permanent changes to S.H.'s grades, as evidenced by the fact that Ms. Elliott and S.H. acknowledged that S.H. was not eligible for cheerleading during the Fall semester of 1998. The third factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent "flagged" grades of one or more students in such a manner that the grades would not count in the computation of the student(s) grade point average, thereby artificially and improperly raising the grade point average of the student(s). It is found that the Department offered clear and convincing evidence that Ms. Elliott improperly flagged the grades of Students L.H., B.M., and A.M. It is found that the Department did not offer evidence sufficient to demonstrate that Ms. Elliott improperly flagged the grades of Students M.M. and B.W. It is found that the Department offered clear and convincing evidence that Ms. Elliott's flagging of the grades of Students M.P., B.H., D.H., J. E.-N., and A.L. violated the District's Grading Procedures as understood by District administrators. However, it is also found that Ms. Elliott's flagging of these students' grades was consistent with her understanding of the flagging policy and with the manner in which she had flagged grades for several years. It is found that the Department offered clear and convincing evidence that Ms. Elliott obtained Ms. Peters' TERMS access code without fully disclosing the reasons why she could not use her own code, and further that she attempted to access the TERMS program after she had been expressly forbidden to do so by Mr. Dugan. It is found that the Department failed to prove by clear and convincing evidence that Ms. Elliott's motive for flagging grades was to make the subject students eligible to participate in cheerleading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(4)(b) and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3)(a) or (d), or Rule 6B-1.006(5)(h), Florida Administrative Code. It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active guidance counselor in the State of Florida. DONE AND ENTERED this 8th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2003.
The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Robert B. Wheeler be DISMISSED. DONE and ENTERED this 13th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 June, 1984.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, 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 17th day of February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
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 Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
The Issue The issue is whether Petitioner, the Nassau County School Board, has just cause to terminate the employment of Respondent, D. Lynn Owen, a teacher on a professional services contract.
Findings Of Fact The School Board employs Respondent D. Lynn Owen as a teacher. Dr. Owen holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.2/ During the 2011-2012 school year, Dr. Owen taught at West Nassau High School ("West Nassau") in Callahan. Fall 2011-2012 Debate 4 class During the 2011-2012 school year, West Nassau operated on a four-period block schedule rather than the six-period schedule followed by most Florida public schools. Under the block schedule, the school year consisted of two semesters, fall and spring. Students took four classes per day, each class lasting 90 minutes. Students received a full credit per semester for each of the four classes. In addition to her qualifications as an English teacher, Dr. Owen is a nationally ranked speech and debate coach. During the 2010-2011 school year, Dr. Owen started a debate team at West Nassau. She taught Debate 3 during the 2010-2011 school year with a class consisting largely of freshmen recruited from her honors English class. The debate team enjoyed some success in debate competitions and the students wanted to continue taking a debate class in the 2011-2012 school year. West Nassau Principal Ronald Booker was amenable to establishing a Debate 4 class, but was concerned that Dr. Owen's other duties would preclude her teaching the class given the limits of a four-period school day. After some discussion, Dr. Owen volunteered to teach Debate 4 class as a "fifth-period" class to be held after the close of the regular school day. The regular school day began at 9:05 a.m. and ended at 3:25 p.m. Thus, during the Fall Semester of the 2011-2012 school year, Dr. Owen taught Debate 4 as an elective honors class that convened daily from 3:30 until 4:15. In the block schedule system, this class was referred to as a "skinny" block. Unlike the regular block courses, a skinny block met every day for 45 minutes for the full 180 days of the school year. The skinny block class was graded in quarters rather than semesters, and a full credit was earned only if the student remained in the class for the entire school year. Because the Debate 4 class was taught outside of regular school hours, Dr. Owen was not paid to teach the course. West Nassau had several "zero-period" classes that met before the start of the regular school day. Mr. Booker testified that Debate 4 was the only fifth-period class he knew of at the start of the 2011-2012 school year. He testified that he only learned about another fifth-period class, Band 2, after the school year began. William Eason, the band director at West Nassau, testified that he taught Band 2 as a fifth period class during the Fall Semester of the 2011-2012 school year. Mr. Eason testified that Mr. Booker approved the class for credit during the summer before the start of the school year. Mr. Eason stated that he was paid for the class, receiving a stipend for after- school instruction. Mr. Eason's testimony regarding the provenance of the Band 2 class is credited. Both Mr. Eason and Mr. Booker appeared to be testifying honestly, but Mr. Booker's recollection on this point was imprecise. Mr. Booker clearly recalled his approval of Debate 4 but was fuzzy as to when Band 2 came about, though he recalled discussions about the need for the class. Mr. Eason taught the class and naturally had a more specific recollection of the approval process than did the principal. Band 2 met daily at 3:45 p.m. until roughly 5:00 p.m. This was the time during which the marching band rehearsed for its appearances at West Nassau football games and for band competitions. Mr. Eason testified that he had no attendance problems with his Band 2 students. He took regular attendance at the start of the class. Also, if a student were missing, the hole in the marching band formation would be obvious. Three students, A.H., L.C., and C.P., were enrolled in Dr. Owen's Debate 4 class and in Mr. Eason's Band 2 class. It fell to Dr. Owen to fashion a solution to this conflict because it was critical that these students attend band practice every day after school, particularly A.H., who was the band's drum major. No flexibility could come from the Band 2 side of the conflict. Mr. Booker asked Dr. Owen to "work with" these students to provide a way for them to make up missed class time in Debate 4. If they had to miss two days because of band, then Dr. Owen should meet with them for a longer class period on the remaining three days to make sure they met the seat time requirement.3/ Dr. Owen testified that she understood Mr. Booker's instruction to mean that she should be flexible regarding regular class attendance for her Debate 4 students, provided they put in the time required to receive credit for the course. Eight students were in the course at the start of the year, and three dropped out. Dr. Owen stated that the five who remained in Debate 4 met their seat time requirement for the 2011-2012 school year. C.P., now a tenth grader at West Nassau, was in the marching band during Fall Semester of the 2011-2012 school year. He was enrolled in Band 2 and stated that the marching band practiced every day at 4:00 p.m., except for Thursdays when band practice convened at 4:30. C.P. enrolled in Debate 4 during September 2011, on Dr. Owen's recommendation, creating a conflict with his attendance at Band 2. On a few occasions, C.P. split his time at Band 2 and Debate 4. On most days, he would attend Debate 4 from 3:30 until 4:00 p.m. and then go to band practice. If there was no band practice, he would stay in Debate 4 until 5:00 p.m. On Thursdays he was able to stay in Debate 4 for a full hour, but on Fridays during the football season he was not able to attend Debate 4 at all due to his band commitments. C.P. testified that Dr. Owen allowed him to make up the missed time by coming in early in the morning, before first- period began at 9:05 a.m. In this way, C.P. was able to put in at least 30 minutes daily on his Debate 4 assignments. C.P. estimated that 95 percent of his class time was spent performing research on debate topics with his debate partner, which facilitated working independently of the regular class period. C.P. testified that his grade in Debate 4 was based on class participation, including debate practice once a week, and that there were no term papers or written assignments in the conventional sense. Dr. Owen testified that sixty percent of the grade for Debate 4 was based on class work, twenty percent was based on writing, and twenty percent was based on her assessments of the students. She stated that C.P. was not doing things that he would normally do in an English class for "writing," but that she graded the students based on their research, their notes, and their debate outlines, all of which are components of "writing" under the Sunshine State Standards. Her assessments were based on weekly practice debates. C.P. stated that his classmates A.H. and L.C. eventually dropped out of Debate 4 because they were unable to keep up with the requirements of the class in addition to their Band 2 commitments. The School Board has alleged that although C.P., A.H., and L.C. attended fifth-period band practice virtually every day during the Fall Semester of the 2011-2012 school year, and although band practice directly conflicted with Dr. Owen's fifth period Debate 4, those students were marked "present" in the Debate 4 class when they were not present. In fact, the fifth-period classes overlapped but did not conflict at all points. Mr. Eason testified that the band class began at 3:45, but C.P. testified that in practice the class did not commence until 4:00 p.m. C.P. was able to attend debate for thirty minutes, from 3:30 until 4:00 p.m., and then attend the band class starting at 4:00 p.m. C.P.'s testimony was entirely credible on this point. The evidence establishes that it was possible for the three students enrolled in both classes to attend at least portions of both classes. Assuming that the "flexibility" urged by Mr. Booker included the ability for students to make up class time at other times of the day, it was possible for C.P., A.H., and L.C. to meet the seat time requirements for Debate 4 while also maintaining their attendance at the fifth-period Band 2 class. A.H. and L.C. dropped out of Debate 4 halfway through the school year, each receiving a half-credit for the class. C.P. remained in Debate 4 for the entire school year. C.P. testified that A.H. and L.C. dropped the debate class because they were unable to put in the time to meet the seat requirements for the class while maintaining their level of participation in band. Dr. Owen's handwritten attendance sheets for August 29 through October 13, 2011, indicate a total of 16 absences from Debate 4, including five absences for A.H., the band's drum major. However, the attendance records submitted by Dr. Owen for the school's official records show no absences at all from Debate 4 until October 19, 2011. Dr. Owen did not have an adequate explanation for this discrepancy. In response to a direct question as to whether she had marked the students absent on the official attendance sheet, Dr. Owen said, "I don't know. Probably not." Because Dr. Owen was teaching the Debate 4 class voluntarily, without pay, the school would not pay for a substitute teacher. Therefore, Dr. Owen did not have a substitute teacher to fill in for her when she missed Debate 4. Records produced at the hearing indicated that Dr. Owen was absent from the West Nassau campus on September 14 and 23, October 4, November 9, December 8 and 9, and December 14 through 16, 2011. However, Dr. Owen's handwritten attendance sheets show that on September 14, when Dr. Owen was at the hospital for her husband's surgery, four students spent the entire class period in Debate 4 and four others at least checked in with Dr. Owen. The attendance sheets show that on September 23, when Dr. Owen was attending a conference in Baltimore, three students spent the entire fifth-period in Debate 4, three other students checked in, and two were absent. Dr. Owen had no adequate explanation for these discrepancies. On October 4, Dr. Owen was out of school for AVID professional training. Dr. Owen was the AVID coordinator for West Nassau. AVID, or Advancement Via Individual Determination, is the curriculum component of GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs), a grant program established by the U.S. Department of Education to increase the number of low income students who are prepared to enter and succeed in postsecondary education. West Nassau was part of a three-year GEAR UP grant. Dr. Owen's handwritten attendance sheets for October 4 indicate that six students were present for the entire class period and two others checked in with Dr. Owen. In this instance, Dr. Owen explained that the AVID training session in Jacksonville concluded at the end of the school day and that she immediately drove to Callahan to be there for the Debate 4 class. As to Dr. Owen's other listed absences, the record contains no handwritten attendance sheets with which to compare them. In her deposition, Dr. Owen testified that she kept handwritten attendance sheets for the entire school year, but that during its initial investigation the School Board asked only for her attendance sheets for the first quarter of the 2011-2012 school year. She was subsequently suspended and barred from the West Nassau campus and therefore unable to provide the rest of the attendance sheets in response to the School Board's discovery request. West Nassau also generated a daily "subsequent period absentee report." The first-period teacher would take the roll of the students in her class and send the results to the school office. The office would then generate a report of absent students that would be distributed the next day to teachers of subsequent classes. Those teachers would check their own attendance record against the report and mark whether the students were present or absent for their classes. The subsequent period absentee reports for November 9, and December 14 and 15, 2011, each indicate that A.H. was marked absent for her first period class but was marked "present" for Debate 4. On all three of these dates, Dr. Owen was not present at the school. West Nassau maintains a "teacher sign-in sheet for payroll" that is treated as the official record of when a teacher comes into and leaves the school every day. Several of these sheets for the 2011-2012 school year were submitted into evidence. The sheets indicate that on most days, Dr. Owen worked well in excess of eight hours, often well into the evening hours. However, the sheets also indicate several days during the Fall semester on which Dr. Owen signed out of the school at 3:30 p.m. or before, indicating that she could not have been present to teach Debate 4: August 16, September 1, October 26 and 27, and November 2, 2011. There were also a few dates on which Dr. Owen left school after 3:30 but before the 4:15 dismissal time for Debate 4: September 20, October 25, and November 3, 2011. The handwritten attendance sheets for Debate 4 indicate that the class convened on August 16 and September 1, 2011, despite the fact that Dr. Owen had signed out of the school at 3:30 p.m. The evidence indicated that on at least two occasions Dr. Owen chaired meetings of the West Nassau AVID teachers at 3:45 p.m., in conflict with Debate 4. Dr. Owen testified that the AVID meetings occurred 15 minutes after the start of Debate 4, and that she was able to take roll and get the class started on independent work before the AVID meeting started. The AVID meetings were in the same connected suite of classrooms in which Dr. Owen conducted her classes, so that she was at all times within earshot of the Debate 4 class. She could not, however, state with certainty that the students were in the class and working during the class period. The School Board has also alleged that Dr. Owen did not establish or follow any discernible academic standards for the Debate 4 class. The School Board offered little evidence to support this allegation.4/ Dr. Owen provided a detailed course syllabus that included cognitive and behavioral objectives, targets for subject matter mastery, and the specific Sunshine State Standards met by the course. She also provided the students with a classroom management plan with clear rules for the functioning of the classroom and a set of student, parent and teacher expectations requiring the signatures of all parties. Regarding the lack of traditional writing assignments in the Debate 4 class, Dr. Owen testified as follows: If I had any less experience, maybe I would have to have a piece of paper for every single thing that they did. But I didn’t have to have that because I have been trained to assess everything a student has learned in ten minutes or less. And the minute they start talking, whether it's a national competition or in my classroom, in ten minutes or less I can tell you whether they've done any or all of the work that they have been given to do. It's part of knowing how to judge and coach debate. Dr. Owen's testimony on this point is credible. Debate 4 was a performing arts class, and as such did not fit the profile of a standard academic classroom course. To prepare for debates, students were required to perform extensive research and to demonstrate complete mastery of the materials they compiled. At the suggestion of the West Nassau principal, Dr. Owen provided the students some flexibility in making up their seat time due to the recognized conflict during the fifth-period. C.P., for example, made up his seat time by coming in early in the mornings and staying past 4:15 on afternoons when he could be in the class. Dr. Owen estimated that C.P. put in 130 hours of seat time during fourth quarter alone as he prepared for a national competition, when only 135 hours were required to obtain credit for the entire school year. Dr. Owen's clear mastery of the subject matter entitled her to some deference as to the extent to which the students were able to work independently of her. However, on this point, Superintendent of Schools John Ruis testified persuasively that regardless of how much independent study the student is responsible for, there is an expectation that instruction will occur in the classroom and that the students will be under the supervision of the teacher who is responsible for them. Dr. Ruis believed that some arrangement should have been made for supervision of the class in Dr. Owen's absence, regardless of the time the class convened. In summary, as to the allegations regarding the Debate 4 class, the School Board failed to demonstrate that Dr. Owen did not establish or follow any discernible academic standards for the class during the Fall Semester of the 2011-2012 school year. The School Board did demonstrate that Dr. Owen falsified records pertaining to the fifth-period Debate 4 class. It is understood that "falsification" carries a connotation of intentional action. Based on all the evidence, there is simply no way to find that Dr. Owen's actions constituted anything other than an intentional misreporting of student attendance in her Debate 4 class. Dr. Owen submitted attendance reports that were clearly incorrect, showing students present for classes that could not have taken place because Dr. Owen was not present on the West Nassau campus at the time in question.5/ When she filled out the attendance reports, Dr. Owen had to know that she was submitting inaccurate records. Spring 2011-2012 Speech 1 class During the Spring Semester of the 2011-2012 school year, Dr. Owen taught an AVID Speech 1 class at West Nassau. As noted above, AVID is the curriculum component of the federal GEAR UP grant program, the purpose of which is to increase the number of low-income students who are prepared to succeed in postsecondary education. The program's emphasis is on students who show the potential to do college work but who lack the financial and family resources to prepare in the manner available to their more well-to-do classmates. The elective AVID program aims to nurture these students and inculcate in them a desire to succeed in college.6/ The final exam for the Spring Semester AVID Speech 1 class consisted of four parts, each worth 200 points. The 800-point final exam counted for roughly one quarter of the student's grade for the nine-week period.7/ One of the 200-point segments of the final exam was a written essay test. The exam's instructions provided as follows: Please choose ONE (1) essay question. Your essay response should be a minimum of three (3) pages, and a maximum of four (4) pages. Please include an introduction, body, and conclusion. Your response is based off of your own experiences, not just the class's as a whole. Write your responses on a separate sheet of notebook paper. There followed a list of five essay questions: Compare and contrast your 1st semester at WNHS to your 2nd semester. What has changed? How have you improved, and what can you do to continue to improve? What recommendations would you give to the freshman class next year to prepare them for high school? Describe your experience with your first AP/Honors class. What do you think you could have done differently to help your grade? How do you think you could have been prepared in 8th grade, to be ready to go, when the class started? Describe what you think your life is to be like in 15 years. Where do you see yourself? Be as descriptive as possible. Do you believe that a person is born with individual determination, or is it acquired over time? What makes individual determination such a good thing but also a very bad thing? Give examples. Twenty-two students took the essay test. Twenty-one of the students received the same grade, 186 points out of a possible 200. The remaining student received a grade of 160.8/ Dr. Owen made no marks on any of the exams, most of which were replete with spelling errors, grammatical errors and sentence fragments. Three of the essays did not meet the three page minimum, and one of the essays was five and one-half pages long, in excess of the four-page maximum. In explaining her actions, Dr. Owen testified that some of the students were very concerned about their grades as they approached the written essay portion of the exam. Two parts of the final exam had been completed and were "non-negotiable as far as AVID was concerned," in Dr. Owen's words. One of these was the Tutorial Request Form, which Dr. Owen described as a "very stylized Socratic methodology form that they have to use Costa's higher-level order of thinking in order to put together.9/ And that is a killer sheet that they had to do twice a week all year." The second "non-negotiable" part of the final exam was a grade for the binders that the students were required to keep all year. Dr. Owen testified that some of the students had not done well on these two portions of the final exam, for which the AVID program allowed her no leeway to adjust the grades. She testified that these students "needed something to mitigate the damage that had been done in . . . the other two parts of the exam." Some of the students were further concerned that they could not write three pages on the essay test. Therefore, she orally amended the exam instructions, telling the class, "I will look at your essays to determine if you have addressed the prompt and if you have reflected on what you're doing. And if you've worked the whole period and you're working hard and I can tell, then I don't think anyone will be disappointed with their grades." Dr. Owen testified that she had taken this essay test, including the instructions, from an AVID website. She stated that she had never written an exam that called for a minimum or maximum number of pages, and that she did not believe that such a requirement should be strictly enforced. Dr. Owen noted that she had one student whose handwriting became larger and larger as she became more nervous, which caused her to fill more than four pages on the essay test. Another student's primary language was Spanish, but he managed to write a page and a half in English that addressed the prompt. In both of these instances, Dr. Owen declined to discount the students' grades for failure to meet the three-page minimum or four-page maximum. Dr. Owen testified that she has been trained as a professional test scorer and did not need to place marks on the papers. She stated that she took notes on a separate note pad to assist her in grading the papers, though she was unable to produce these notes at the hearing. She also knew that this was the last exam before summer break and that the students would not be coming back for the tests. She intended to place the exams in the students' permanent AVID folders to use as part of their first project for the next school year. The project was to involve peer editing, and she did not want the students to be influenced by marks she had placed on the papers. The essay exam was not intended to be "punitive." It was meant to be "reflective," something she could use at the beginning of the next year as a starting point for further study of the students' personal growth. Dr. Owen noted that the essay test was only one-fourth of the AVID Speech 1 final exam. This part of the exam did not change anyone's grade average because it amounted to so little of the total grade. Dr. Owen testified that it is appropriate to give all the students the same grade provided they "put into it what I ask them to put into it." In her deposition, when asked why 21 out of 22 students received the same score, Dr. Owen replied, "Probably because I liked what they wrote and they maintained the rubric."10/ She testified that she read every word of every essay. The fourth part of the final exam, also worth 200 points, was a "mandala autobiography" project. Each student was required to draw a mandala, or circle, containing five symbols that represent unique and varied aspects of the student and/or his life. According to the written rubric for the project, a "very effective" mandala would demonstrate its symbolic purpose, would be visually appealing, and would have a purposeful and unifying connecting design. Accompanying the mandala would be an essay that "thoroughly describes and explains the symbols contained in the mandala. The essay would use "strong sensory details to bring each symbol to life." The "very effective" essay should be well-organized, use "well-crafted transitions to propel the reader forward," contain varied sentence structure and have "few, if any, mechanical errors." All 22 students in the AVID Speech 1 class received a grade of 190 out of 200 on the mandala autobiography project. Dr. Owen made no marks of any kind on any of the project materials submitted by the students. Dr. Owen explained that this project was the culmination of "an entire year's worth of reflection through AVID." As well as writing explanatory essays, the students were required to present the mandalas to the class and explain each symbol and color used in the drawings. Dr. Owen testified that the mandala autobiography was something of a group project, with all of the students working on the rubric together. Again, she did not make marks on the papers because the mandalas were going to be used during the next school year. Dr. Owen testified: [A]t the beginning of this year, we were going to take those mandalas, and we were going to turn that into the second project, which was: over the summer, how have you changed? How have your collages changed? How did the symbols change? Are they still valid? And so I wasn't going to mark on anybody's artwork, and I didn't need to mark on any of them because the students' rubrics and things . . . I had them all together in one place. Dr. Owen conceded that some students produced more materials than others and that some projects appeared to have had more effort put into them, based on the detail of the written materials. Nonetheless, Dr. Owen testified that each one of the students in the class "absolutely" earned the grade he or she received. Dr. Cynthia Grooms, the assistant principal at West Nassau who conducted the initial investigation into the allegations against Dr. Owen, testified that she found it unusual that so many students received the same grades on the essay test and the mandala project, especially because there were no marks on the papers. These facts raised concerns as to whether Dr. Owen reviewed the exams, graded them properly, documented her grading process, and provided feedback to the students. Dr. Ruis also found it "highly irregular" for 22 students in a class to receive an identical grade on a written assignment. Dr. Ruis believed the probability of such an occurrence "would normally be very slim." As to the essay test in particular, Dr. Ruis stated: It would be difficult not to read these essays and make some distinctions between them with regard to quality of the product that the students produced. However, that was not reflected in the scores that they were assigned . . . It suggested that they were not reviewed objectively, that they were not graded in accordance with the guidelines that were issued, and done haphazardly. Even Mr. Booker, the former West Nassau principal who testified on behalf of Dr. Owen, stated that it would be unusual for all 22 students in a class to receive the same grade on a written project. If he were shown 22 written essays, all of which received the identical grade and none of which had a mark on them, Mr. Booker would conclude that the teacher had not graded them. The School Board's allegation is that Dr. Owen "falsified and/or negligently failed to maintain accurate grading records for her fourth period Speech I class." It is found that Dr. Owen did not "falsify" records for the class because there is no evidence that Dr. Owen intended to create inaccurate or misleading grading records. The undersigned finds Dr. Owen to be a dedicated teacher and a sympathetic witness, and has attempted to give her the benefit of every doubt in this proceeding. The AVID Speech 1 class was an elective class designed to encourage potential first-generation college students to pursue higher education. The class was designed more to encourage reflection and self- examination than to exert academic pressure on the students. It is found that, given the nature and goals of the class, Dr. Owen had some measure of discretion to apply a more relaxed grading standard. However, by her own admission, Dr. Owen negotiated with her students the terms of the AVID Speech 1 essay test after the students saw the written instructions to the test, essentially telling them to disregard the instructions and promising them a good grade if she believed they were working hard. She then proceeded to give 21 of 22 students a score of 186 out of 200, or a solid "A," without apparent regard to the manifest differences in quality among the essays. She made no marks on any of the papers, failing to correct for spelling and grammatical errors. Dr. Owen testified that she took notes in a separate note pad that she was unable to produce at the hearing. She stated that the students received the same score because they all wrote according to her undisclosed personal "rubric." The undersigned credits Dr. Owen's testimony that she read every word of every essay, but cannot credit her conclusion that all of these essays were of precisely the same quality meriting precisely the same grade. Based on these facts, it is found that Dr. Owen negligently failed to maintain accurate grading records for her fourth-period Speech I class as to the essay portion of the final exam. As to the mandala autobiography, there are factors apart from those discussed as to the essay test that incline the decision toward Dr. Owen. The mandala project had an objective rubric against which the finished product could be judged. Though each student produced an individual mandala, the overall project was visualized as a group effort, providing some justification for Dr. Owen's decision to award all 22 students with a grade of 190. A reasonable person could disagree with Dr. Owen's method of grading the mandala autobiography project, but her grading decision cannot be found to constitute a negligent failure to maintain accurate grading records. Evidence as to Dr. Owen's fitness and effectiveness Mr. Booker was the principal of West Nassau and Dr. Owen's direct supervisor throughout her tenure at the school. He described Dr. Owen as a "fabulous teacher," a "master" at keeping her students "highly engaged and involved in the educational process." Mr. Booker stated that he had no concerns about Dr. Owen's professionalism and had never known her to neglect any of her duties. His only concern was as follows: I've had concerns about her work ethic, because she works, you know, nonstop pretty much every day, every day, every night, weekends. She's a very dedicated teacher, puts in more hours as one teacher probably than three or four other teachers do. I used to have to try to kick her out of the building. Dr. Owen received the highest score possible on her annual evaluation for the 2011-2012 school year. She received an overall score of 97 out of 100 possible points on her 2010-2011 annual evaluation. She was subject to two evaluations during the 2009-2010 school year, for which she received scores of 94 and 100 out of a possible 100 points. Iris Coleman is a retired teacher and administrator for the School Board. In the 2008-2009 school year, Ms. Coleman was acting principal at the Student Educational Alternative School ("SEAS") at which Dr. Owen was a teacher. Ms. Coleman testified that her performance evaluations of Dr. Owen were very good, and that Dr. Owen was "one of the most competent teachers that I have ever observed." Ms. Coleman never knew Dr. Owen to neglect her duty, stating that, "I have never seen anything but the finest of performance academically, professionally, and socially." Melody Spruell, the former English department head and AP coordinator at West Nassau, testified that she had observed Dr. Owen's Debate 4 class 15 or 16 times and her AVID Speech 1 class about a dozen times. She noted that Dr. Owen's students posted "stellar" scores on the FCAT exam. Dr. Spruell stated that Dr. Owen "makes the rest of us kind of look like, you know, chopped liver." Dr. Spruell testified that if she had ninth- grade children, "my kids would be in her class." Maureen Lullo is an English teacher who shared the same suite of classrooms with Dr. Owen and worked closely with her in the AVID program. Ms. Lullo described Dr. Owen as "a brilliant mind and really one of the best teachers that I have been exposed to in my 24 years of teaching." Dr. Ruis testified as to the factors that led him to recommend Dr. Owen's dismissal: Well, I think to go back to the Code of Ethics of the teaching profession of the State of Florida, teachers have an obligation to present information honestly; they have an obligation to the profession and to the students and to the parents to not produce information that would misrepresent the facts or be submitted fraudulently. I think that's a very serious breach of the Code of Ethics. And my expectation for all of our teachers would be that they perform and that they act in a manner that's of the highest character, as exemplifying the Code of Ethics, because that is certainly something that we need to model for our students. And when that does not happen, I think it -- you know, it reduces the effectiveness of someone in the instructional position with students under their supervision. Dr. Ruis concluded that it would be "very, very difficult" for Dr. Owen to remedy her impaired effectiveness at West Nassau or in the Nassau County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order finding D. Lynn Owen guilty of incompetency and misconduct in office and imposing the sanction of suspension without pay for the 2012-2013 school year. DONE AND ENTERED this 5th day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of February, 2013.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
