The Issue The issue is whether Petitioner may terminate the professional service contract of Respondent due to a failure to correct performance deficiencies during the 90-calendar-day probationary period.
Findings Of Fact Respondent entered the teaching profession after working 17 years as a bartender. She earned her undergraduate degree in education--specifically, learning disabilities and varying exceptionalities--and obtained her first teaching job at Gulfstream Elementary School in 1995. For her first eight years at Gulfstream, Respondent taught a physically impaired class. These are small classes of less than ten students with health or medical disabilities. Many of the students cannot walk or talk. With a paraprofessional and sometimes a fulltime aid, Respondent taught substantially the same students from year to year. The focus of much of the instruction was upon daily living skills, such as reading the signs on restrooms and businesses. In 1996, Respondent developed inoperable Stage IV nasopharyngeal carcinoma. Eight months of radiation therapy scarred Respondent's airway. When Respondent returned to school after a five-month leave of absence, she, like many of her students, wore a feeding tube and relied on a vocal amplification device. Respondent made the most of these characteristics that she now shared with some of her students, encouraging them to overcome their disabilities as she was doing. In the physically impaired class, Respondent taught most of the students on a one-on-one basis. Rarely did she have to address the entire class as part of classroom instruction. For this reason, Respondent was little handicapped by her speech difficulties, which arose due to the cancer treatment. Even today, loud speech is nearly impossible for Respondent, who, to generate speech, must press against her throat to produce a gaspy speech that requires close attention to understand. A new principal arrived at Gulfstream for the 2002-03 school year. The new principal, who had previously been an assistant principal for eight years and a teacher for nine years, found Respondent's performance unsatisfactory in several respects. Respondent was often late arriving to school and failed to perform her duties on the bus ramp. Respondent often left her paraprofessional alone with the physically impaired class. To monitor the behavior of the child, Respondent sometimes brought her high-school aged daughter to school without permission. Overall, the principal found that Respondent seemed unenthusiastic about teaching. Believing that Respondent might have been depressed, the principal referred Respondent to the Employee Assistance Program. Thinking that a change in assignment might rekindle Respondent's enthusiasm for her job, for the 2003-04 school year, the principal switched the assignments of Respondent and another teacher, so that the other teacher would teach Respondent's physically impaired class, and Respondent would teach a varying exceptionalities class. Neither teacher had requested a new assignment. Respondent's varying exceptionalities class began the 2003-04 school year with 14 students. Eventually, the principal reduced the class to nine students. Respondent had the help of only a part-time paraprofessional. The wide range of cognitive abilities of the students meant that some students could only identify their names in print, and some students could read and write. Students in the varying exceptionalities class were in several classifications, such as educably mentally handicapped, traumatic brain injury, and autistic. By sometime in October 2003, the assistant principal had twice observed Respondent teaching her class. The assistant principal had concerns about Respondent's classroom management and recordkeeping. The assessments and evaluations in this case are based on the Petitioner's Professional Assessment and Comprehensive Evaluation System (PACES). In conjunction with the statutory 90-calendar-day probationary period, as discussed in the Conclusions of Law, the PACES assessments follow a format. A PACES-trained evaluator conducts an initial observation not of record. If the teacher fails to meet standards, the evaluator goes over the findings with the teacher, offers a Professional Growth Team to provide assistance in eliminating any deficiencies, and advises that she will conduct another evaluation in a month. If the teacher meets standards on the second evaluation, which is known as the first observation of record, the teacher reverts to the normal evaluation scheme applicable to all teachers, and the first negative observation is essentially discarded. If the teacher fails to meet standards on the first observation of record, she is placed on performance probation for 90 days. The evaluator conducts a Conference for the Record and gives the teacher a Professional Improvement Plan (PIP). During the probationary period, the evaluator conducts other observations, and, at the end of the period, the evaluator conducts a final observation. If the teacher still fails to meet standards, then the evaluator conducts a confirmatory observation within 14 days after the end of the probationary period. If the teacher still fails to meet standards, the principal may recommend termination to the Superintendent. PACES assessments cover six domains: Planning for Teaching and Learning (Domain I), Managing the Learning Environment (Domain II), Teacher/Learner Relationships (Domain III), Enhancing and Enabling Learning (Domain IV), Enabling Thinking (Domain V), and Classroom-Based Assessments of Learning (Domain VI). Each of these domains comprises three to five components, for which the evaluator determines whether the teacher meets standards. If the evaluator determines that the teacher fails to meet standards as to a component, the evaluator circles a listed indicator, so that the teacher may readily identify authoritative sources of information, such as the PACES binder provided to each teacher or videotapes in the District office, that will assist her in curing a particular deficiency. The assistant principal conducted the initial observation not of record on October 14, 2003. She determined that Respondent failed to meet standards for 18 of the 21 components. Respondent met standards only in Components III.A, IV.C, and VI.A. Respectively, these are Interpersonal Relations, which is the teacher's respect for the students; Resources for Learning, which is the teacher's use of teaching aids and learning materials; and Monitoring Engagement and/or Involvement in Learning, which is the teacher's monitoring of the student's engagement during learning tasks. Among the more significant deficiencies reflected in the October 14 evaluation are that Respondent lacked lesson plans and failed to manage the learning environment. To help with these and other deficiencies, the assistant principal offered Respondent a Professional Growth Team and referred her to her PACES binder, which would describe each deficient item and suggest strategies to eliminate each deficiency. For her part, Respondent had tried to deal with her new assignment by grouping the children, where appropriate, by cognitive ability. In September or October, she was able to send one student to regular education. On November 5, 2003, the assistant principal returned to perform the first observation of record. She found Respondent reading a Thanksgiving story to the eight students who were present in her class. Respondent would read one sentence and ask a question about it. By using this approach, Respondent took one hour to read a story that should have taken five minutes to read. Each time that she stopped and asked a question about the preceding sentence, Respondent undermined the continuity of the story. Also, all of her questions tested the students' memory; none of them required higher-order thinking, as would be required by questions asking how or why something happened. Despite these shortcomings in Respondent's teaching, the assistant principal determined that Respondent had met standards in all of Domains I, II, III, and VI. However, Respondent failed to meet standards in all components of Domains IV and V, including the one component in Domain IV for which she had previously met standards. However, Respondent performed considerably better in this observation than in the previous observation--meeting standards in 13 of 21 components as opposed to meeting standards in 3 of 21 components three weeks earlier. In the ensuing Conference for the Record, the assistant principal prepared a PIP for Respondent and again recommended that she take advantage of the Professional Growth Team for assistance in eliminating the deficiencies. Dated November 14, 2003, the PIP is a detailed documentation of each deficiency noted in the November 5 observation. The November 14 PIP describes what Respondent did or did not do, as to each deficiency. The PIP also contains specific recommendations to eliminate each deficiency. The number of deficiencies is misleading, at least as an indicator of the scope of the teaching that was subject to the evaluation. The Thanksgiving story, described above, spawned all eight of the observed deficiencies. Respondent's reliance exclusively upon simple recall questions yielded five deficiencies. (One of these deficiencies also relies on Respondent's failure to correct a child who replied to the question of what sound that turkeys make, by answering, "quack, quack." Absent more context, it is possible that Respondent's failure to correct this answer was an attempt not to reward attention-getting behavior.) One of the remaining three deficiencies criticizes Respondent for introducing the Thanksgiving story with an open-ended question, "This is November. What do you think happens in November?" Another deficiency, which focuses on the one-sentence, one-question approach of Respondent to the story, faults Respondent for omitting hands-on activities. The last deficiency notes that Respondent held up a small piece of paper showing the months of the year, but she failed to post the paper for the children to see. (This deficiency implies that Respondent's classroom lacks a posted calendar.) The detail of the November 5 PACES evaluation and November 14 PIP are undermined by the oddly narrow factual basis upon which they rest. Intended as a comprehensive statement of the deficiencies of an experienced teacher, these documents reveal that Petitioner has placed Respondent on probation because of an awkward reading of a Thanksgiving story to eight students over a period of about one hour. On December 11, 2003, the principal performed an observation. The principal found that Respondent met standards in Domains I, II, III, V, and VI, but not in three components of Domain IV: Initial Motivation to Learn, Teaching Methods and Learning Tasks, and Clarification of Content/Learning Tasks. Respectively, these components involve the identification of the learning objective, the use of logically sequenced teaching methods and learning tasks, and the use of different words or examples when clarification is required. The two components within Domain IV for which Respondent met standards are: Resources for Learning and Knowledge of Content and Pedagogy. The former component involves the use of learning materials to accommodate the range of individual differences among learners, and the latter component involves the creation of an opportunity to allow different learners to learn at different cognitive levels. The basis of the deficiencies was in Respondent's presentation of another story, Little Miss Muffet, although, this time, the problems centered more around her lead-in and follow-up activities. The PIP, dated December 17, 2003, which the principal prepared, notes that the pace of a writing activity worksheet was too slow for four of 11 students, who sat with nothing to do for ten minutes while waiting for their peers to finish; Respondent failed to correct a student who answered the question, "what are you afraid of," with "sock" (perhaps the same child who had said that turkeys quack); Respondent failed to correct a student who said that a paper was missing words when it was missing only letters; and Respondent failed to identify tasks associated with the story that would challenge all of the students, although Respondent used two worksheets-- one with missing words (presumably for the higher-functioning group) and one with missing letters (presumable for the lower- functioning group). On February 4, 2004, the assistant principal performed the next observation. She found that Respondent met standards in Domains I and III. She found that Respondent failed to meet standards in Components II.D, III.A, IV.A, IV.B, and VI.B. Respectively, these are Managing Environment in Learning, Interpersonal Relations, Initial Motivation to Learning, Teaching Methods and Learning Tasks, and Informal Assessment. During this observation, Respondent read a story on how to build a house. The reading level of the story was at least third-grade, but the students were in kindergarten and first grade. For 40 minutes, Respondent used actual house blueprints as a visual aid. As another visual aid, Respondent used blocks to depict a house, but she lacked sufficient blocks to finish the project. The story took one hour when it should have taken ten minutes. Consequently, students were out of their seats and trying to find something to do. On February 10, the assistant principal prepared a PIP. Although the contents of this PIP were not dissimilar to the contents of the previous PIPs, one new deficiency was Component III.A, Interpersonal Relations. The notes in the February 10 PIP state: "One learner was ridiculed by the teacher making remarks about her behavior to the classroom paraprofessional. Her remarks included, 'She's totally off the wall' and 'She has been horrendous today.' She also said to other learners not paying attention, 'I'm not going to talk to the air' and 'I'm waiting in case you didn't notice.'" The comments to the individual student were sarcastic and derogatory. In general, the principal found Respondent to be more enthusiastic in the 2003-04 school year than she had been in the previous school year. Respondent showed an improved attitude, but her classroom remained disorganized. Respondent had received considerable assistance from her Professional Growth Team, but the principal concluded that Respondent had still failed to meet standards. From Respondent's perspective, she felt that the principal had prejudged her and was running through the 90-calendar-day probationary period as an empty exercise. Respondent became increasingly nervous, as she repeatedly tried, and failed, to please the principal and assistant principal. At one point during the 90 days, Respondent restated her desire for a transfer, as she had made such a request the prior summer when she had learned of her new assignment, but the principal refused to give the request any consideration or determine if a transfer were feasible. At least once during the 90 days, Respondent's union representative asked the principal to transfer Respondent, but the principal refused, again without giving the request any consideration. In the meantime, Respondent's difficulties in the varying exceptionalities classroom were exacerbated by the removal, by October 2003, of her voice amplification system. On March 2, 2004, the principal, having determined that the 90 calendar days had expired, performed what she believed was the confirmatory observation. She found that Respondent failed to meet standards in eight components in Domains I, II, IV, and VI. Two days later, the principal informed Respondent that she would be recommending that the Superintendent terminate Respondent's professional service contract. Unfortunately, the principal had miscalculated the 90 days. Learning of this error, the principal discarded the March 2 evaluation and performed a new confirmatory observation on March 14 and again found that Respondent failed to meet standards. Two weeks later, Respondent failed to meet standards in six components in Domains II, IV, and V. Only three of the six deficiencies covered the same components in the March 2 observation: Components II.D, II.E, and IV.D, which are, respectively, Managing Engagement in Learning, Monitoring and Maintaining Learner Behavior, and Knowledge of Content and Pedagogy. In general, these were deficiencies at the start of the 90-day probationary period, but were eliminated during the 90-day probationary period, only to return again at the end. Following the March 14 confirmatory observation, the principal recommended that the Superintendent terminate the professional service contract of Respondent. On March 19, 2004, the Superintendent advised Respondent that he was going to recommend to Petitioner that it terminate her contract, and, on April 14, 2004, Petitioner did so. A recurring issue in this case is what is meant by failing to meet standards and, more importantly, unsatisfactory performance. Based on the testimony of Petitioner's witnesses, Petitioner contends that the failure to meet any single component within any of the domains of PACES is the failure to meet standards, and a failure to meet standards is invariably unsatisfactory performance, sufficient to place a teacher on 90- calendar-day performance probation or, if already on performance probation, sufficient to terminate a professional service contract. However, the PACES form does not so indicate, nor do Petitioner's online rules, of which the Administrative Law Judge has taken official notice. Petitioner has failed to prove what is an unsatisfactory performance under the PACES evaluation system. Absent the adoption of a rule to this effect, the isolated omission of a teacher, during a single observation, to provide suggestions to improve learning (Component VI.C) or to start a class or lesson precisely on time (Component II.A) would not constitute unsatisfactory performance, at least for the purpose of initiating the 90-calendar-day probationary period or terminating the professional service contract of a teacher already on performance probation. In this case, undermining the observations of the principal and assistant principal, especially where they appear to be based on discrete failures by Respondent, are the facts that neither supervisor has any significant training in exceptional student education, the principal has no experience teaching in exceptional student education, and the assistant principal has limited experience in teaching exceptional student education. By granting Petitioner's Motion for Official Recognition, the Administrative Law Judge acknowledges that, by letter dated September 24, 2001, the Florida Department of Education has approved PACES. (The identification of PACES is missing from the letter, but the Administrative Law Judge accepts the representation of Petitioner's counsel that PACES was the subject of this letter.) However, this letter approves PACES on its face, not as applied, and may have been based on more than two-page PACES evaluation form. The present record contains only the two-page form and testimony, unsupported by any documentation, that a single deficiency means that a teacher fails to meet standards and may be placed on probation, if the deficiency arises when the teacher is not on probation, or may be terminated, if the deficiency, even if different from the one that initiated probation, is present at the confirmatory observation. The record does not document the extent to which Respondent was in attendance at school during her 90-calendar- day probationary period. By her count, Respondent missed seven or eight workdays due to illness. Petitioner's calculation does not account for these missed days, and, if it had, the second confirmatory observation was premature too. The record contains some evidence of student achievement. As noted above, one student was transferred early in the 2003-04 school year from Respondent's varying exceptionalities class to a regular education classroom, but the proximity of this event to the start of the school year suggests that the student was probably misclassified at the start of the year. The mother of another student testified that Respondent helped her daughter make considerable academic progress. The student had undergone a tracheotomy and, consequently, speech delay. While in Respondent's class, the student was eager to attend school and learned to write her name for the first time. For the first time in school, the student was progressing. When the mother learned that Respondent was being terminated, she tried to contact the principal, but the principal declined to see her, claiming it was a personnel matter and implying that a parent had no role in such matters. The record contains the individual education plans (IEPs) of nine students. Typically, IEPs are prepared in the spring of each year, and, prior to the preparation of the next year's IEP, the IEP team closes out the preceding IEP by marking the extent to which the student has achieved the goals of his IEP. The IEP team also indicates progress during the year with respect to specific goals. A mark of "1" means mastery of the goal, a "2" means "adequate progress made; anticipate meeting goal by IEP end," a "3" means "some progress made; anticipate meeting goal by IEP end," and a "4" means "insufficient progress made; do not anticipate meeting goal by IEP end." The last relevant marks for some of the IEPs were January 2004, but some of them bore marks for March 2004. For all of the IEPs, exclusive of physical or occupational therapy, with which Respondent was not substantially involved, 11 goals were marked 2, 39 goals were marked 3, and 15 goals were marked 4. Five of the nine students for whom Petitioner produced IEPs received a mark of 4 on at least one goal in his or her IEP. But 11 of the 15 4's went to two students: one had four 4's, one 3, and one 2; and the other had seven 4's, two 3's, and one One student had two 4's, but also six 3's. Another student had one 4 and six 3's, and the fifth student had one 4 and three 3's. Thus, only two of the nine students were not making satisfactory progress while Respondent was teaching the class.
Recommendation It is RECOMMENDED that Petitioner enter a final order rejecting the Superintendent's recommendation to terminate Respondent for unsatisfactory performance during the 2003-04 school year. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 26th day of October, 2004. COPIES FURNISHED: Dr. Randolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2011.
The Issue Whether Respondent’s employment as a school psychologist should be terminated on the grounds set forth in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Respondent was a school psychologist employed by Petitioner pursuant to a continuing contract. Respondent was first employed by Petitioner in 1968 as a guidance counselor. In 1974 she began her employment as a school psychologist. At all times relevant to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) and subject to the provisions of the collective bargaining agreement between Petitioner and UTD. At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 1001.32, Florida Statutes (2005).2 For administrative purposes, Petitioner’s school district is divided into regions. R3 is the region to which Respondent has been assigned at the times relevant to this proceeding. In R3, each school, whether an elementary, middle, or high school, has a CST. Each such team includes an administrator, a school counselor, one or more special education teachers, a school psychologist, and other specialists as appropriate. Typically, a child is referred to the CST because he or she is experiencing difficulties, such as academic or behavioral problems. The child’s case is discussed at a CST meeting and the CST decides whether to refer the child to a school psychologist for a psychoeducational evaluation. If that decision is in the affirmative, certain background information is put together and that information is sent to the R3 office to be opened as a case file. The assigned school psychologist receives the case file, performs a psychological evaluation on the child, writes a report detailing his or her findings, and returns the case file to a staffing specialist. The staffing specialist schedules another CST meeting to determine the next appropriate step in the process, which may result in the preparation of an Individualized Education Plan (IEP) for the student. Petitioner has adopted a manual titled “Psychological Services Procedures Manual” (the Manual) that defines the psychological services provided by Petitioner and delineates the procedures school psychologists are to follow in testing, evaluating, referring and placing students who qualify for the ESE program. The Manual also provides an evaluation report format that school psychologists are to follow. School psychologists are required to keep certain records and file certain monthly reports. They are required to report the number of evaluations and other services performed during the month on a form titled “Psychological Services Monthly Report.” They are also required to keep a case log by school for each student with an open case file at that school. The case log contains the names of children whose cases are opened at each school and the status of the case. The case log is updated monthly to reflect the status of each case. A school psychologist is an essential member of the CST and is a critical player in the development of IEPs for students who qualify for ESE. Time constraints are placed on the CST and on each school psychologist. Petitioner’s policy is that the period from the initial referral of a child to a CST to the development of the child’s IEP (for those children who qualify for ESE services) should not exceed 90 days. Since September 2004, Florida Administrative Code Rule 6A-6.0331 has required that students who are suspected of having a disability must be evaluated within a period of time, not to exceed 60 school days in which the student is in attendance. School psychologists are instructed to make every effort to complete the psychological evaluation report and to submit the report for typing within five days after the evaluation is completed. Typically, each school psychologist in R3 is responsible for two or three assigned schools. In an average week, school psychologists spend most of their time at their assigned schools, where they are required to keep the same work hours as the instructional personnel assigned to that school. At the school, the school psychologist meets with other school personnel (whether informally or as part of a CST) and evaluates students. Each school psychologist has at least one day a week at the R3 office, where he or she writes reports and consults with other R3 personnel as needed. During the R3 office day, new cases are assigned and special assignments are made. EVALUATIONS THROUGH SCHOOL YEAR 2001-02 From the school year 1990-91 through the school year 2000-01, Martha Boden was Respondent’s supervisor. For each of those school years, Ms. Boden evaluated Respondent’s performance. During those years, Ms. Boden received a myriad of complaints about Respondent’s job performance. Several school principals testified that they would not want Respondent to serve as their school psychologist based on unfavorable experiences with Respondent during the school years Ms. Boden served as her supervisor. Despite the complaints she received about Respondent, Ms. Boden evaluated Respondent’s performance as being acceptable for each year Ms. Boden supervised Respondent. Each annual evaluation of Respondent by Ms. Boden was a summative evaluation in the sense that Ms. Boden considered all information, both good and bad, that she had about Respondent’s job performance. Ms. Boden’s conclusion that Respondent was an acceptable employee for each of the years that she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the school years 1990-91 through 2000-01 does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance was problematic and provides a context for subsequent evaluations. Ms. Boden exerted considerable effort in attempts to help Respondent improve her job performance. Respondent did not take advantage of the help Ms. Boden offered. Respondent knew from Ms. Boden that she was required to produce timely, accurate psychological evaluations and monthly reports. Myra Silverstein supervised and evaluated Respondent for the 2001-02 school year. That evaluation was also a summative evaluation and also concluded that Respondent was an acceptable employee. Ms. Silverstein’s conclusion that Respondent was an acceptable employee for the year she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the 2001-02 school year does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance continued to be problematic and provides additional context for subsequent evaluations. DELAYED EVALUATIONS AND REPORTS During the school years subsequent to the 2001-02 school year Respondent failed, on multiple occasions, to timely evaluate and complete reports for children who were being evaluated for ESE services. At Olinda Elementary School, a student was tested by Respondent on February 23, 2004 and Respondent did not close the case until January 12, 2005. Partly because of that delay, the principal of Olinda Elementary School requested that a school psychologist other than Respondent be assigned to her school. During the 2004-05 school year, Respondent was assigned to evaluate two students at Miami Springs Elementary School. More than a year passed between the time Respondent received her assignment and the time she did the testing. During the 2003-04 school year, Respondent was assigned a case in January 2004. Respondent did not do the testing on this student until July 2004 and she did not complete her report until January 2005. At Orchard Villa Elementary, Respondent was assigned a case during the summer of 2004. As of June 2005, the case had not been closed. There was no justification for the lapses in time between the dates of assignment and the dates of completion of Respondent’s reports.3 The CSTs could not determine appropriate strategies for the students Respondent was assigned to evaluate without a psychological report. Respondent’s lapses between her assignments and the completion of her reports delayed the staffing of those students and delayed the development of and the provision of appropriate services for those students. Mary Paz, the Instructional Supervisor at the R3 office became Respondent’s supervisor in March 2004. After she assumed that responsibility, Ms. Paz received multiple complaints from principals and parents as to Respondent’s repeated failures to timely complete evaluations and/or reports. In May 2004, Ms. Paz received a memorandum from an assistant principal at Banyan Elementary School regarding an incomplete evaluation report done by Respondent. Material in the case file established that the Bender Gestalt evaluation was administered, but the Respondent’s report made no mention of that diagnostic tool. Another school psychologist was called in to complete Respondent’s report. Pamela Sanders-White was the principal of Orchard Villa Elementary School during the 2004-05 school year. Respondent was the school psychologist for that school during that school year. Ms. Sanders-White received complaints from teachers, parents, and students pertaining to Respondent’s failure to timely complete her work. Ms. Sanders-White requested that a school psychologist other than Respondent be assigned to her school for the school year 2005-06. CONFRONTATIONS AT IEP MEETINGS Petitioner presented evidence that Respondent argued with other professionals during several CST meetings and that she walked out of one such meeting. Petitioner also presented evidence that a few of Respondent's professional opinions were rejected by other professionals. That evidence, while accepted as credible, did not prove or tend to prove that Respondent was incompetent or that she was insubordinate, which are the charges alleged in the Notice of Specific Charges. Consequently, the proposed findings in paragraphs 22, 23, 25, and 26 of Petitioner's Proposed Recommended Order have not been considered by the undersigned in reaching the ultimate findings of this Recommended Order. INACCURATE REPORTS Gail Pacheco has been the Chairperson for Psychological Services in R3 since the 1989-90 school year. She is not a supervisor of the R3 school psychologists, but she works with their supervisors as the supervisor’s designee in resolving problems. At Joseph Jackson’s request after he became Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports prepared by Respondent and monitored all 28 school psychologists in R3 for compliance with time frames for testing, preparation of psychological reports, and case closure. Each of the 30 reports prepared by Respondent and reviewed by Ms. Pacheco had at least one error.4 On May 28, 2003, Mr. Jackson requested all school psychologists, including Respondent, to select a sample evaluation report for review by the respective region chairperson. Respondent did not timely comply with Mr. Jackson’s request. When she did comply, the evaluation report she submitted contained numerous errors, including Respondent’s erroneous conclusion as to the student’s qualification for services.5 In December 2003 Dr. Sue Lee Buslinger-Clifford became the Instructional Supervisor of Psychological Services at the District office. Her job duties included the supervision of all school psychologists, which included the authority to give directives to all school psychologists, including Respondent. Dr. Buslinger-Clifford’s testimony, considered with the other evidence presented by the parties, established that Respondent failed to follow District procedures in the use of two personality or emotional assessments instruments in evaluating students. Respondent’s reports were not individualized for each student, with most of her reports using similar, standardized language. In the academic assessment of students, the reports should identify the needs of the child, the skill level of the child, and specific recommendations. Respondent’s reports often contained the same recommendations written in general, non- specific language that did not recommend the implementation of specific services for the student. Some reports were missing information and others contained limited information that was not helpful for the teacher and the members of CSTs. In addition to typographical and grammatical errors, Respondent’s reports contained test use and procedural errors. On one evaluation report Respondent misinterpreted evaluation data, which caused her to reach an erroneous conclusion as to a student’s eligibility for services.6 On some occasions, Respondent’s narrative report was inconsistent with the report of the evaluation data. Respondent had difficulty managing her time. Her student evaluations generally took longer than they should have. Dr. Buslinger-Clifford reviewed certain reports submitted by Respondent and advised Respondent as to corrections that needed to be made. Respondent did not comply with that advice. Mr. Jackson, as Respondent’s supervisor, reviewed her monthly reports for August through October, 2003, and determined that Respondent’s productivity was greatly below that of the average school psychologist, despite having a similar caseload. Mr. Jackson further determined that Respondent had a backlog that was growing each month; that some of the reports were incomplete; and that some of the reports were inconsistent or misleading. On October 31, 2003, Mr. Jackson notified Respondent in a memorandum of serious concerns that he had related to her poor job performance, and he directed Respondent to provide him with answers to certain questions pertaining to her performance7 no later than November 10, 2003, at 9:00 a.m. Mr. Jackson requested information as to six specific issues. First, he wanted a written response as to an alleged incident at Westview Middle School during which Respondent got into an argument with a staffing specialist in front of a student’s parents during a CST meeting. Second, he wanted to know why three identified cases had not been completed in a timely manner and ordered her to attach the psychological reports for those students with her response. Third, he wanted her to explain her lack of productivity and provide Medicaid forms for nine students who she had evaluated. Fourth, he wanted Respondent to provide Ms. Pacheco with a copy of a recent psychological report so Ms. Pacheco could review it. Fifth, he wanted an explanation as to why she had not provided a psychological report for review when such a report had been requested of her on three occasions. Sixth, he wanted Respondent to explain why she continued to use an instrument (WIAT) that she allegedly could not score. On November 7, 2003, Respondent responded to Mr. Jackson’s memorandum and requested a 60-day extension of the deadline for her response to his questions. Respondent’s response included the following: You have demanded a written response in five (5) days to a long list of you [sic] allegations, to which you offered not [sic] proof, only conjecture, opinions, and a partially extracted table; that was delivered by registered mail on Saturday afternoon at my residence. I feel sure that this memorandum was written and typed on the MDCPS [Miami-Dade County Public School] time clock. No consideration was given for my time clock, or the release of my daily time schedule to complete such a task. The sixty-day extension period is therefore needed to consult my archives in order to give you a detailed and accurate response. I need ample time to secure financial expense; legal advisement and representation; and a typist (all of which I will be seeking reimbursement), before undertaking such a task. Mr. Jackson gave Respondent until November 14, 2003, to respond to his memorandum. That was a reasonable deadline. Respondent did not meet the deadline established by Mr. Jackson. On December 17, 2003, Respondent responded in writing to the questions Mr. Jackson had asked in his memorandum.8 Mr. Jackson was not satisfied with Respondent’s response and continued to have concerns about her job performance. Mr. Jackson’s dissatisfaction with Respondent’s response was reasonable. His continued concerns about her job performance were also reasonable. JANUARY 2004 CONFERENCE FOR THE RECORD On January 15, 2004, Mr. Jackson had a Conference for the Record (CFR) with Respondent. A CFR is a meeting of record, held by a supervisor with an employee who is or may be under investigation for possible disciplinary action, to apprise the employee of the review of the record and the possible disciplinary action, and to give the employee an opportunity to respond or append the record. At the CFR conducted January 15, 2004, Mr. Jackson discussed his continued concerns with Respondent and considered her responses (both written and verbal). Mr. Jackson prepared a memorandum dated January 22, 2004, which summarized the events that transpired at the CFR held January 15, 2004. In the memorandum, Mr. Jackson gave Respondent the following directives: Your are to be professional and courteous to all staff at all times. You are also to represent the school system in a positive light at all times. This directive begins immediately and continues indefinitely. You are to complete evaluations of each child within a week of the beginning of testing, unless approved by the Executive Director or the Instructional Supervisor of the Division of Psychological Services or the ACCESS Center 3 Chairperson. Additional testing must be approved by the Chairperson which may be suggested by you and/or the Chairperson. The additional testing is to be completed within one week of notification of the determination for more testing. A completed report of each evaluation must be submitted for typing to the ACCESS Center within two weeks after the evaluation is completed. (Day that the last assessment instrument has been administered.) All evaluations are to be correctly reflected on your monthly report (log). This directive is ongoing and will be reviewed by the 10th of each month, for the next three months. Your monthly reports/logs are to reflect increased productivity beginning with the February report, averaging a minimum of 10 psychoeducational evaluations per month, unless approved by the Executive Director. Your productivity will be reviewed monthly. If you do not have the assigned cases, you are to request cases from your ACCESS Center chairperson. You are to complete a minimum of 10 psychological evaluations during the next four weeks. The Psychological Services Monthly Report, with a copy of the completed typed report for each of the 10 evaluations attached, is to be submitted to the office of the Executive Director of the Division of Psychological Services on February 27, 2004. All psychological evaluation reports are to be completed and delivered to Ms. Gail Pacheco for review within two weeks after the day the last assessment instrument has been administered. All corrections are to be completed within two school days after they have been received from Ms. Pacheco. No case should be given to the staffing specialist for staffing until the case has been approved by Ms. Pacheco. This directive is to be implemented immediately and will be reviewed randomly by the Executive Director of the Division of Psychological Services during the next six weeks. Reviewing of all reports by the ACCESS Center Chairperson and timelines for completion will be adjusted as needed. You were referred to the Employee Assistance Program through a Supervisory Referral for performance of professional duties related to assignment failures. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to your professional status with Miami-Dade Public Schools. In the memorandum dated January 22, 2004, Mr. Jackson advised Respondent that he would review the information in the CFR with appropriate school officials and that he would take the following additional action: All directives will be monitored as stated in the conference and in this memorandum. If you successfully complete the directives, the requirements of the directives will be adjusted to reflect the requirements of all ACCESS Center based school psychologists. If you do not successfully complete the directives, additional directives will be added to assist you in becoming the desired professional you are capable of being. MARCH 2004 CFR Mr. Jackson conducted a second CFR with Respondent on March 19, 2004. Petitioner established that there continued to be concerns with all six of the directives given to Respondent following the January 2004 CFR. As to directive 1, Mr. Jackson continued to receive complaints as to Respondent’s interaction with school-based staff. Petitioner established that Respondent failed to comply with directives 2, 3, 4, and 5. Respondent did not timely complete the evaluation of each child to whom she was assigned nor did she seek or obtain approval from the R3 chairperson for additional testing. Respondent did not submit completed psychological evaluation reports to the R3 office within two weeks of completing all of the evaluations. Respondent’s case log report reflects that 10 cases were completed but only eight evaluation reports were submitted. None of the evaluation reports on Respondent’s monthly case log report were submitted for review as required. Psychoeducational evaluation reports were not timely submitted to Ms. Pacheco for review. Numerous errors were reflected on the psychoeducational evaluation reports that were submitted. Ms. Pacheco returned the reports to Respondent with instructions to correct the reports. Respondent did not return corrected reports to Ms. Pacheco. Respondent declined to participate in the Employee Assistance Program, which was offered in Directive 6.9 In addition to re-issuing the directives that had been given at the January CFR, Mr. Jackson issued directives requiring Respondent to report to work on time, to report her presence at the school site to a designated contact person, and to complete a Professional Improvement Plan (PIP) that was based on specified indicators pursuant to Petitioner’s Professional Assessment and Comprehensive Evaluation System (PACES).1 In addition, Mr. Jackson changed Respondent’s schedule to reduce the number of schools she would have to travel to in order to conduct the number of evaluations Mr. Jackson had directed her to evaluate each month. This change was made in an effort to assist Respondent meet her productivity directives. MAY 2004 CFR Mr. Jackson conducted a CFR with Respondent on May 7, 2004. Petitioner established that Respondent continued to fail to meet the directives that Mr. Jackson had imposed as to productivity. Respondent’s evaluation reports and monthly case reports continued to contain procedural and substantive errors. Respondent failed to submit copies of her evaluation reports to Mr. Jackson’s office as directed. Mr. Jackson issued revised directives to Respondent. Those revised directives, which were similar to the previously issued directives, are set forth in Petitioner’s Exhibit 143 and are incorporated herein by reference. Again, Respondent was directed to complete a PIP on specified indicators on the PACES evaluation system. The PIP Respondent was required to complete was admitted into evidence as Petitioner’s Exhibit 144. ANNUAL EVALUATION FOR 2003-04 SCHOOL YEAR On May 7, 2004, Mr. Jackson completed his annual evaluation of Respondent’s job performance for the 2003-04 school year.11 Part A of the evaluation form contains six domains. Mr. Jackson rated Respondent as meeting standards for each of the six domains in Part A. Those domains are “Preparation and Planning”, “Management”, “Human Relationship”, “Professional Practice”, and “Contribution to School Improvement”. Part B contains the seventh domain of “Professional Responsibilities”. For that seventh domain, Mr. Jackson rated Respondent as not meeting standards. Mr. Jackson’s overall rating of Respondent was that she did not meet standards. On the PACES evaluation form, the evaluator can make one of the following three recommendations: “Recommended for Employment”, “Not Recommended for Employment”, or “Performance Probation Carry-over.” Mr. Jackson recommended the third option, which meant that Respondent’s performance probation was to be carried over to the next school year. Respondent’s May, June, July, and August, 2004, case reports established that she continued to fail to meet productivity directives. She typically did not timely submit reports for typing and she did not complete the assigned number of evaluations. She developed a backlog for her assigned cases. SEPTEMBER 2004 CFR On September 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. Dr. Buslinger-Clifford attended that meeting. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 165 and are incorporated by reference. Included in the directives was another PIP (Petitioner’s Exhibit 167). Mr. Jackson ordered Respondent to return 17 cases that had been assigned to her to Dr. Buslinger-Clifford for reassignment. On September 24, 2004, Respondent complied with that order and those cases were reassigned. Also as directed, Respondent reviewed with Dr. Buslinger-Clifford Respondent’s backlog of 26 other cases. Dr. Buslinger-Clifford observed that Respondent’s case files were disorganized, some contained mold, and some contained pieces of dead roaches. Respondent submitted 26 reports for typing in mid October 2004. Her October 2004 case report fails to reflect that those cases were submitted for typing. NOVEMBER 2004 CFR On November 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. She had not completed her PIP; the psychological evaluation reports she submitted contained typographical, grammatical, and procedural errors; and she did not submit contact information she had been instructed to submit. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 188 and are incorporated by reference. On November 16, 2004, Mr. Jackson reprimanded Respondent in writing. That reprimand is set forth in Petitioner’s Exhibit 189, which is incorporated herein by reference. On November 17, 2004, Respondent provided Mr. Jackson with a report listing the cases that had been assigned to her. That list was not accurate because Respondent failed to list five cases that had been assigned to her. Respondent continued to fail to evaluate cases that had been assigned to her on a timely basis. Respondent’s case status reports for January and February 2005, did not follow district polices. From those reports, Mr. Jackson could not determine the status of cases that had been assigned to Respondent. FEBRUARY 2005 CFR For the school year 2004-05, Robert Kalinsky was the personnel director for R3 and DanySu Pritchett was the Administrative Director of Petitioner’s Office of Professional Standards (OPS). On February 15, 2005, Ms. Pritchett conducted a CFR with Respondent at the OPS offices. Respondent, Mr. Kalinsky, Mr. Jackson, Dr. Bulsinger-Clifford, and two union representatives also attended the CFR. Petitioner’s Exhibit 206, a summary of that CFR, is hereby incorporated by reference. The summary of that CFR reflects the following statement by Ms. Pritchett: The record reflects that you have been repeatedly insubordinate and grossly insubordinate to directives issued to you by Mr. Jackson. Additionally, the record reflects your failure to complete and submit psychological evaluation reports [for] review by the required timelines and your failure to submit monthly reports/logs. . . . Mr. Kalinsy received numerous complaints from school- based personnel about Respondent’s performance. Mr. Kalinsky had difficulty locating Respondent on one occasion because Respondent was not at her scheduled location and had not informed her contact person at the school where she was going. He had difficulty locating her on another occasion because she did not timely report to work at the school site she was scheduled to serve. On March 2, 2005, Mr. Kalinsky wrote Respondent a memorandum advising her that she was in violation of directives that had been issued to her at prior CFRs. That memorandum, Petitioner’s Exhibit 214, is hereby incorporated by reference. On March 5, 2005, Mr. Kalinsky revised Respondent’s schedule so that Tuesdays, Wednesdays, and Thursdays of each week were reserved for completion of prior assignments. Mr. Kalinsky directed Respondent to submit five completed cases to R3 each Friday. Mr. Kalinsky had the authority to issue that directive to Respondent. The directive was reasonable. On Friday, March 18, 2005, Respondent failed to comply with that directive. Respondent also failed to comply with Mr. Kalinsky’s directive on Friday, March 25, 2005. Mr. Kalinsky issued another memorandum to Respondent on March 31, 2005, for failing to comply with his directive. That memorandum, Petitioner’s Exhibit 222, is incorporated by reference. On May 27, 2005, in the PACES annual evaluation for the School Year 2004-05, Mr. Kalinsky rated Respondent as not meeting standards. Respondent had consistently failed to follow directives that had been issued to her as to timelines and productivity, had failed to adhere to Petitioner’s policies and procedures, and had turned in reports that contained inaccuracies, errors, and misleading information. Mr. Kalinsky did not recommend Respondent for further employment because he reasonably concluded that Respondent had not been fulfilling her professional responsibilities. Respondent’s supervisors recommended the termination of her employment as a school psychologist. Petitioner followed all applicable procedures in processing that recommendation, which resulted in the School Board action at its regular meeting on May 18, 2005, that underpins this proceeding. Dating from Ms. Boden tenure as Respondent’s supervisor in the 1990s, Petitioner made reasonable efforts to try to help Respondent improve her performance. Respondent consistently rejected those efforts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order adopting the findings of fact and conclusions of law set forth herein. It is also RECOMMENDED that the Final Order terminate Respondent’s employment. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 25th day of April, 2006.
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue The issue is whether Respondent may place on probation for 2017 Petitioner's approved program offering an associate's degree in nursing (ADN) due to the failure of its relevant graduates to achieve the required passing rate on the nursing licensing examination for 2015 and 2016.
Findings Of Fact Petitioner operates an ADN program. Graduates of Petitioner's ADN program are eligible to take the NCLEX, which, if passed, renders them eligible for nursing licensure. As discussed in the Conclusions of Law, Respondent is required to penalize any approved program whose first-time test takers taking the NCLEX within six months of graduation fail to achieve a minimum passing rate. The minimum passing rate is ten points less than the first-time test taker average (National Test Taker Average) announced by the National Council of State Boards of Nursing (Council). The first full year that Petitioner's graduates took the NCLEX was 2015. For 2015, the National Test Taker Average for ADN graduates was 82%. For 2016, the National Test Taker Average for ADN graduates was 81.68%. For 2015, ten first-time test takers of the NCLEX who had graduated from Petitioner's approved program passed out of 73 such takers. For 2016, 13 first-time test takers of the NCLEX who had graduated from Petitioner's approved program passed out of 143 such takers. The passing rates were thus 15.07% for 2015 and 9.1% for 2016. During the years at issue, Florida law restricted the calculation of passing rates of first-time test takers to persons who took the NCLEX within six months of graduation. The Council obtains and reports, by test taker, the graduation month and year, but not the day, month, and year. Respondent obtains graduation dates only of applicants to take the NCLEX in Florida. However, through discovery in this case, Respondent obtained exact graduation dates of a sufficient number of the relevant test takers to meet the applicable evidentiary standard. As adjusted for test takers taking the NCLEX within six months of graduation, the passing rate of Petitioner's relevant graduates in 2015 was 22.58%. There were two students for whom precise graduate dates could not be obtained; one student passed the NCLEX and one student failed the NCLEX. If the figures include the student who passed, but not the student who failed, the adjusted passing rate of Petitioner's relevant graduates in 2015 was 25%. Making the same adjustment for one student who failed the NCLEX and for whom a precise graduation date is unavailable, the adjusted passing rate of Petitioner's relevant graduates in 2016 was 12.5%. By clear and convincing evidence, Respondent has proved that graduates of Petitioner's approved program taking the NCLEX for the first time and within six months of graduation did not come anywhere near passing the NCLEX at the statutory minimum rates for 2015 and 2016.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order placing Petitioner's approved program on probation for 2017. DONE AND ENTERED this 24th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 24th day of April, 2018. COPIES FURNISHED: Diane L. Guillemette, Esquire Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Gregory M. Ochalek, Esquire Law Offices of Gregory M. Ochalek, PLLC 19553 Northwest Second Avenue, Suite 217 Miami Gardens, Florida 33169-3366 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399-1701
The Issue The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida Administrative Code Rule 6B-1.006, as alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the field of mathematics, and has been issued Florida Educator’s Certificate No. 130749. This certificate is valid through June 30, 2011. At all times pertinent hereto, Respondent was employed by the Duval County School Board as a sixth-grade mathematics teacher at Twin Lakes Academy Middle School in the Duval County School District. Respondent has been a teacher for over 40 years and has taught mathematics at Twin Lakes Academy Middle School for six years. On March 7, 2008, Respondent signed an “FCAT Administration and Security Agreement.” By signing the security agreement, Respondent acknowledged that he had read the 2008 FCAT SSS Reading, Mathematics, and Science Test Administration Manual, and that he would administer the FCAT exam in accordance to procedures stipulated in the manual. Page 30 of the manual stated in bold print that Respondent “may not . . . discuss test items or answers with students, even after all test materials have been returned.” By signing the FCAT Administration and Security Agreement, Respondent promised to avoid the following prohibited activities: Reading the passages, test items, or performance tasks; Revealing the passages, test items, or performance tasks; Copying the passages, test items, or performance tasks; Explaining or reading test items, or passages for students; Changing or otherwise interfering with students responses to test items; Causing achievement of schools to be inaccurately measured or reported; Copying or reading student responses. By signing the security agreement, Respondent agreed to abide by Florida Administrative Code Rule 6A-10.042, and Section 1008.24, Florida Statutes, and acknowledged in part: The security of all test materials must be maintained before, during and after the test administration... * * * I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported. In March 2008, after signing the security agreement, Respondent administered the FCAT to his sixth-grade mathematics class. The day after administering the FCAT, Respondent asked the students in each of his five classes to write down questions they could remember from the FCAT. The testimony varied as to whether the requested information was limited to questions they did not understand, a single question, or simply questions and answers. However, it is clear that the requested information stemmed from the FCAT administration the previous day. Respondent collected the students’ written responses immediately after, with the intention of reviewing the students’ responses at a later date. There is no competent, persuasive evidence that Respondent intended to share the questions with anyone. After collecting the students’ written responses, Respondent placed them in a folder and then placed the folder in his personal briefcase to be taken home and locked in his private safe. Shortly thereafter, the school principal, Mr. Donald Nelson, received an email from a parent who is also a teacher at Twin Lakes Elementary School, stating that a security violation may have occurred with respect to the FCAT. Mr. Nelson immediately called Professional Practices and questioned the Respondent about the incident. In addition, he retrieved the folder with the students’ questions from Respondent. An investigation was conducted by Mr. Leroy Starling, an investigator for the Duval County School District, Mr. Nelson, and Mr. John Williams, the Director of Professional Standards for the school district. Randomly selected students were questioned individually, and students’ written responses as well as two letters written by the Respondent to Mr. Nelson were reviewed. As a result of the investigation, on April 4, 2008, Respondent was issued a letter of reprimand and suspended for ten days without pay. Respondent continued to teach his sixth-grade mathematic class during the ten days that he was suspended, despite the fact that he was not being paid to do so. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for the Florida Department of Education, testified that the FCAT is used as part of the accountability system for the state. The results from the FCAT results are used to determine if schools have made an adequate yearly progress, to assign school grades and to measure each student’s level of achievement. Ms. Ash further testified that due to the three-year process in developing test questions, selected questions are frequently re-used on the FCAT. As a result, pursuant to the FCAT security agreement, teachers are warned not to “check through books and return them to students after they have been collected or discuss test items or answers with students even after all test materials have been returned and testing has been completed because some items may be used on future tests.” There is no evidence presented that student achievement was inaccurately reported or misrepresented as a result of this incident. There is also no evidence that any of the questions on the FCAT were discarded or that any test scores were invalidated as a result of the incident. Respondent has received consistent excellent teaching reviews and has never been reprimanded before this incident. There is no evidence that Respondent acted inappropriately in any manner during the actual administration of the FCAT.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of March, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 March, 2010.
The Issue Whether just cause exists to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at Melaleuca Elementary School in Palm Beach County, Florida. Respondent was initially hired by the School Board as a teacher in 2006. At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the Collective Bargaining Agreement between the School Board and the Palm Beach County Classroom Teachers Association. The Florida Standards Assessment ("FSA") is a standardized, statewide, individual assessment examination administered to students in Florida's public schools. The FSA for third-grade students includes the Mathematics and English Language Arts ("ELA") Reading assessments. Student performance on the FSA is a measure of student accountability. A student's test score on the FSA must accurately reflect the student's actual performance on the test. If a student receives assistance, the student's performance will not be accurately measured. Student performance on the FSA is a factor in the determination of a school's grade, a teacher's evaluation, and potentially, a teacher's compensation and bonus. To maintain the integrity of the FSA and to ensure the proper administration of the FSA, teachers receive mandatory training in the correct administration of the test. On or about March 16, 2016, Respondent attended the FSA Test Administrator Training at Melaleuca Elementary School, which included instruction about test security. On or about March 16, 2016, Respondent received a copy of a PowerPoint entitled "Spring 2016 Florida Standards Assessments Training Materials – Computer Based Grades 4-5 ELA Reading; Grade 5 Mathematics – Paper-Based Grade 3 ELA Reading and Grades 3 & 4 Mathematics." On or about March 16, 2016, Respondent signed the "Test Administration and Security Agreement" and the "Test Administrator Prohibited Activities Agreement," which prohibit assisting students in answering tests, giving students verbal and non-verbal cues, and changing or interfering with student responses. By signing these agreements, Respondent agreed to follow all test administration and security procedures outlined in the manual and rules, and she agreed not to engage in any prohibited activities or acts that would violate the security of the test or cause student achievement to be inaccurately measured. At the hearing, Respondent acknowledged she understood the contents of these agreements and the prohibited testing activities. On March 31, 2016, Respondent was a third-grade teacher at Melaleuca Elementary School and administered/proctored the FSA Mathematics assessment to third-grade students. During the test, Respondent gave assistance to students and interfered with students' answers. Specifically, Respondent: (1) made noises and tapped on students' desks and their test answer sheets to signal wrong answers; (2) pointed to wrong answers on the test answer sheets; whispered to a student that "she was doing a good job"; and erased marks and unwanted answers on students' answer sheets. Many students who were in the classroom when Respondent administered the FSA Mathematics assessment on March 31, 2016, credibly and persuasively testified at the final hearing regarding the assistance Respondent gave to them during the examination, and Respondent's interference with their answers during the examination. N.D. testified that during the test, Respondent made noises to signal a wrong answer. N.D. also testified that Respondent pointed to a question on her answer sheet in an effort to have N.D. change her answer. N.D. also testified that Respondent erased bubbles on her answer sheet. A.C. testified that during the test, Respondent made noises to signal a wrong answer. A.C. also testified that Respondent erased bubbles on her answer sheet. A.V. testified that during the test, Respondent made noises to signal a wrong answer. A.V. also testified that Respondent whispered to her that "she was doing a good job." A.V. also testified that Respondent pointed to answers and erased bubbles on her answer sheet. H.C. testified that during the test, Respondent made noises to signal a wrong answer. D.A. testified that during the test, Respondent tapped on his desk to signal a wrong answer. Y.C. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. also testified that Respondent erased bubbles on his answer sheet. A.H. testified that during the test, Respondent made noises. A.H. also testified that Respondent erased a mark on his answer sheet. Moreover, at the hearing, Respondent conceded that she erased bubbles on students' answer sheets and prompted a student when asked by the student about the definition of a polygram. Respondent's attempt to explain how she did not assist students and interfere with their answers during the FSA examination is unpersuasive and not credited. Respondent's assistance to students and interference with students' answers during the FSA Mathematics assessment resulted in the Florida Department of Education ("DOE") invalidating each of the students' math tests in Respondent's classroom. The invalidation of the students' math tests resulted in a deficit for the placement of students in the appropriate math instruction for the following school year. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2). By assisting students and interfering with students' answers during the FSA examination, Respondent violated Florida Administrative Code Rules 6A-10.042(1)(c), (d), and (f). Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties. Respondent also violated rules 6A-10.081(2)(a)1., (2)(b)2., and (2)(c)1., by failing to make reasonable effort to protect students from conditions harmful to learning, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, and failing to maintain honesty in all dealings. By assisting students and interfering with students' answers during the FSA examination, Respondent also violated School Board Policy 1.013 by failing to carry out her assigned duties in accordance with state rules and School Board policy. Respondent's conduct in assisting students and interfering with students' answers during the FSA examination was clearly flagrant and purposeful. Respondent was trained not to assist students and interfere with students' answers during the FSA examination. Respondent was aware of the prohibition against assisting students and interfering with students' answers during the FSA examination. Rather than adhere to these prohibitions, however, Respondent made a conscious decision to ignore them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and termination of Respondent's employment.1/ DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 1st day of September, 2017.
