Findings Of Fact In the 1984-1985 regular school year. Eduardo Hernandez was in the 7th grade at Nautilus Junior High School. On December 4, 1984 Eduardo disrupted science teacher Ralph William Schmidt's science class by speaking loudly in Spanish and called the teacher a pejorative name in Spanish before the entire class. He was assigned classroom detention by Mr. Schmidt which he did not serve. On December 6, 1985 Mr. Schmidt tried to send him to the principal, Mr. Walker, with a note of detention but Eduardo ran out of the room. On that date, Eduardo wrote some obscene notes to Mr. Walker containing curse words in Spanish and passed the notes in class. On February 6, 1985 Eduardo wrote with blue magic marker on a science lab table. Thereafter, the same markings (fancy signature marks and cartoons) were discovered in bathroom stalls, on desks, and other parts of the school and Eduardo and another boy were discovered in the vicinity with blue magic markers in their possession. Dr. Paul Smith, assistant principal of Nautilus Jr. High School confirmed that Eduardo was referred for discipline as a result of this incident. In this year, Eduardo's science grades were mostly failures with many absences. He frequently disrupted the concentration of other students in the class. Some days he was cooperative and other days he was not. In most cases he was disruptive and discourteous to the teacher and students. In response to many referrals by Mr. Schmidt, Dr. Paul Smith, spoke to Eduardo on a number of occasions. Very frequently Dr. Smith was required to speak with him about tardiness and cutting classes. In the first nine weeks grading period alone Eduardo was absent without proper excuse two times from one class, two times from another class and three times from another. On December 11, 1984 Dr. Smith counselled with Eduardo due to a disruptive behavior referral from another teacher, Mr. Lawless. On January 18, 1985, Dr. Smith personally received Eduardo when he was brought to school by the police as a truant. On another occasion, Dr. Smith caught Eduardo "skipping" or truant after lunch period. On March 19, 1985 Dr. Smith counselled with Eduardo on a referral for disruptive behavior in the classroom of another teacher, Mr. Burger. On April 1, 1985, Eduardo was brought to the office for refusing to work in class and he thereafter left the office without permission from Dr. Smith. Throughout the 1984-1985 school year, Eduardo's unexcused absences increased and his grades decreased. Eventually he was absent 20 days out of 45 in a grading period. His highest grade was a "D" and the others were failing or - unsatisfactory, designated as "F3F." In Dr. Smith's opinion, Eduardo cannot successfully complete a regular school program and although the Opportunity School may not be the only acceptable program, it was selected as the best solution under present circumstances. Jorge A. Hernandez opposed the alternative school assignment on the basis of danger from other students behavior to his son. He did not challenge the existence of his son's prior disruptive behavior but submitted that a telecommunication program would be a better alternative if Eduardo cannot be returned to a regular school program. He offered that Eduardo's behavior will change since Eduardo is now living with his father and certain family stresses contributing to his disruptive behavior have been resolved.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Eduardo Harnandez at Jan Mann Opportunity School-North until such time as an annual or other evaluation indicates other appropriate assignment. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools, Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building Suite 100, 2780 Galloway Road Miami, Florida 33165 Mr. Jorge Hernandez 461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130 Mrs. Maeva Hipps School-Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Mrs. Maeva Hipps School Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 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 Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
Findings Of Fact At all times material hereto, Respondent is the holder of a teacher's certificate duly issued by the Department of Education for the State of Florida. Such certificate bears number 282363 and is a Rank 2 certificate, expiring on June 30, 1986. On or about August 11, 1970, Respondent caused to be filed with the Department of Education for the State of Florida his application for issuance of a teaching certificate. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Respondent had been arrested by the Fort Lauderdale Police Department on or about July 1, 1965, for the offense of petit larceny (shoplifting). As a result of that arrest, Respondent was adjudicated and fined $125, and his sentence of 15 days of incarceration was suspended. On or about September 2, 1969, Respondent was again arrested by the Fort Lauderdale Police Department for the offense of contributing to the delinquency of a minor and violation of the curfew laws. Respondent pled nolo contendere to the first charge, and adjudication was withheld. The second charge was nolle prossed. As a result of filing that application with the Department of Education, Respondent was issued a teaching certificate for the academic school year 1970-1971. On or about May 1, 1973, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a full-time teaching certificate under the Department of Education Number 282363 with a preference in physical education. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. As a result of filing that application, Respondent was issued a teaching certificate as a full-time instructor under Department of Education Number 282363, certificate type 04. In September 1976, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a teaching certificate under Department of Education Number 282363. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. On or about October 3, 1973, Respondent was arrested in Duval County, Florida. Subsequent thereto, an Amended Information was filed against Respondent charging him with breaking and entering the dwelling house of another with the intent to commit a misdemeanor therein, to wit: assault and battery, and also charging him with committing assault and battery on Evelyn Rebecca May. On December 10, 1973, Respondent entered a plea of guilty to the offense of trespassing with malice. Adjudication was withheld, and Respondent was placed on probation for one year. As a result of filing that application, Respondent was issued a teaching certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 30, 1979, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a duplicate teaching certificate. Respondent, under oath, stated in that application that he had never been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation and that there were no criminal charges pending against him other than minor traffic violations. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. Respondent also thereby failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Respondent, while attending a high school basketball championship play-off in Lakeland, Florida, was arrested on or about March 10, 1979, for the offense of "scalping." As a result of that arrest, Respondent was formally charged with violation of Section 817.36, Florida Statutes, in the County Court of Polk County, State of Florida, case number MO79-000450-LD. Subsequent to the filing of those formal charges, Respondent tendered a plea of nolo contendere and had court costs assessed against him in the amount of $112. As a result of filing the application for the issuance of a duplicate certificate, Respondent having previously stated that he had lost his original certificate, the Department of Education issued a duplicate certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 27, 1970, Respondent filed an application for employment with the Duval County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. Between September 1971 and September 1973, Respondent was employed by the Duval County School Board at Sandalwood Junior-Senior High School. On or about September 4, 1973, Respondent filed an application for employment with the Nassau County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. During the academic year of 1973-1974, Respondent was employed by the Nassau County School Board at West Nassau Senior High School. During the 1973-1974 school year, Marilyn B. Grimmage was a student at West Nassau High School where Respondent was then a physical education teacher. Grimmage was 15 years of age. She and Respondent began to date. After a period of two to three months, they engaged in several acts of sexual intercourse. While there were no acts of sexual intercourse committed on the school grounds, there were times when Grimmage and the Respondent would sneak off to private areas of the school and kiss. Grimmage and Respondent engaged in sexual intercourse on three occasions: two of the occasions occurred at the residence belonging to a friend of the Respondent, and one occasion occurred in a wooded area. Grimmage knew that Respondent was married at the time and believed that their relationship was common knowledge at the school. While Respondent was employed at the West Nassau Senior High School, he made contact with Belinda Yvette Morris, who was 15 years of age and attending a junior high school within the Nassau County public school system. Contrary to the allegations of paragraph 33 of Count VII, Morris was not then attending West Nassau High School, but rather went there daily in order to practice for cheerleading. Respondent engaged in sexual intercourse with Morris. He was married at the time. Respondent made a second attempt to engage in sexual intercourse with Morris following a basketball game when Morris was on her way home with other students. At Respondent's request, she entered his automobile and drove with him to an isolated area. He gave her a necklace and then made physical advances toward her in attempt to consummate sexual intercourse. His advances were rebuffed, and Respondent drove her to a location near her home and let her out of the automobile. On or about June 23, 1975, Respondent filed an application for employment with the Dade County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department and also failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. On that application for employment with the Dade County School Board, Respondent also failed to note that he had been previously employed with the Duval County School Board and with the Nassau County School Board. Rather, Respondent stated that he had been a professional basketball player for a period of years which would roughly correspond to the period of time he was employed with the Duval County School Board, and he further stated that he had been employed during that time period by a non-public school employer, the Jacksonville Marine Institute. On that application, Respondent also denied that he had ever been a member of the Florida Retirement System. As a result of filing that application, Respondent was employed by the Dade County School Board between September 1978 and October 1981 at American Senior High School. Sharon Colbert met Respondent when she was 15 years of age and a student at American Senior High School in Dade County, Florida, where Respondent was employed as a physical education teacher. Respondent was also the head coach for the varsity basketball team, and he approached Colbert and asked her to be on the "stat team," which consisted of students who would work with him and assist in keeping statistics for the basketball team. Colbert replied she could not afford to purchase the uniforms, and Respondent purchased her uniforms for her. One evening during the 1980-1981 school year, while Colbert was a member of the stat team, she accompanied Respondent and some of his basketball players to scout a game that was being conducted at Miami-Dade Community College. After the game, Respondent dropped off the other students and invited Colbert to the home of a friend of his for something to eat before he took her home. When Colbert and Respondent arrived at his friend's home, Respondent and his friend began "snorting coke." After his friend left, Respondent forcibly took Colbert into a bedroom, where he performed sexual intercourse. As a result of that sexual intercourse, Colbert contracted the "crabs." When she confronted Respondent about her predicament, he said he would assist her by taking her to the doctor. However, he instead took her to another residence and forcibly engaged in sexual intercourse with her. He then took her to a convenience store, where he obtained some pills and ointment for her to use to eradicate her crabs. In September 1981, while Respondent was teaching at American Senior High School, he approached Paulette Brown, who was then 15 years of age and a student at that school. Respondent asked Brown to remain after school to discuss her interest in becoming a member of the "stat team." After receiving permission from her father to remain after school, Brown went to the coach's office and waited while Respondent completed some last-minute errands. After Respondent returned to the coach's office, he asked Brown about her boyfriends and then told her he wanted to show her "his layout." Respondent took Brown through the boys' locker room to an equipment room. When they were inside the equipment room, Respondent closed the door and persuaded Brown to remove her clothing. He then engaged in sexual intercourse with Brown. Frederick Bertani and Desmond Patrick Gray, Jr., offered expert opinion that Respondent's effectiveness as an employee of a school board has been not only diminished but severely impaired, not only within Dade County but within the entire profession itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 82-1604 finding Respondent Otis Fells guilty of the allegations contained within the Administrative Complaint and permanently revoking his teaching certificate number 282363; and it is further RECOMMENDED that a Final Order be entered in Case No. 82-2742 finding Respondent Otis J. Fells guilty of the allegations contained within the Amended Notice of Charges and dismissing the Respondent from his employment with the School Board of Dade County and denying any claim he may have for back pay. DONE and RECOMMENDED this 7th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street West Palm Beach, Florida 3340l Jose Martinez, Esquire 201 Alhambra Circle, Suite 1200 Coral Gables, Florida 33134 Mr. Otis J. Fells 1216 Walsh Avenue, Apt. 25-A Coral Gables, Florida 33146 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Lindsey Hopkins Building, Suite 200 1410 NE Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SHCOOL BOARD) ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA EDUCATION PRACTICES COMMISSION, DEPARTMENT OF EDUCATION, Petitioner, vs. CASE NO. 82-1604 OTIS FELLS, Respondent. / SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 82-2742 OTIS J. FELLS, Respondent. /
The Issue This is a case in which the School Board of Dade County proposes to assign Rodolfo Damian Menedez to the Jan Mann Opportunity School-North. The School Board contends that the assignment to opportunity school is appropriate because of the student's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The Respondent and his parents oppose the assignment to opportunity school. This case was originally scheduled for hearing on September 20, 1985, but was continued because there were no court reporter and no translator in attendance. The parties agreed to reschedule the hearing on oral notice of less than 14 days in order to secure an early hearing date. At hearing on October 7, 1985, both parties stated they had no objection to the notice of hearing. At the end of the formal hearing, the Hearing Officer advised both parties that they would be allowed ten (10) days within which to file proposed findings of fact and conclusion of law. On October 21, 1985, the Respondent filed a document titled "Final Order" which has been treated as a proposed recommended order with proposed findings of fact. As of the time of the issuance of this Recommended Order, the Petitioner has not filed any proposed findings of fact or conclusions of law. Specific rulings on the proposed findings of fact submitted by the Respondent are incorporated in the appendix attached to this Recommended Order.
Findings Of Fact There is information in the school records which indicates that the Respondent was involved in other instances of misconduct, but I have not made further findings in that regard for several reasons. First, the records do not appear to be all that carefully prepared, which causes me to place little credence in the accuracy of the records. Second, the records were not corroborated by testimony of a witness with personal knowledge, except for certain admissions in the testimony of the Respondent and his mother. Third, the Respondent denied the accuracy of some of the information in the records. Third, the Respondent denied the accuracy of some of the information in the records. And, finally, much of the information in the records is vague and general and does not adequately explain the nature of the incidents of the nature of the Respondent's role in the incidents, this being particularly true of the incidents involving fighting.
Recommendation For all of the foregoing reasons it is recommended that the School Board of Dade County enter a Final Order rescinding the assignment of Rodolfo Damian Menendez to the Jan Mann Opportunity School-North and assigning him to an appropriate school in the traditional school program. DONE AND ORDERED this 22nd day of October, 1985, at Tallahassee, Florida. M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1985. APPENDIX The factual assertions contained in the Respondent's posthearing document titled "Final Order" have been treated as proposed findings of fact and are specifically ruled on as follows: The substance of the proposed findings of fact contained in the following paragraphs have been accepted and incorporated into the findings of fact in this Recommended Order: FIRST, SECOND, THIRD, FOURTH, and EIGHTH. The proposed findings of fact contained in the following paragraphs are rejected as irrelevant in light of the other findings and in light of the recommended disposition of this ease: FIFTH, SIXTH, and SEVENTH. The proposed findings of fact in the following paragraph is rejected because it is a proposed conclusion of law rather than a proposed finding of fact: NINTH. As of the time of the issuance of this Recommended Order, the Petitioner had not filed any proposed findings of fact. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137-4198 Ignacio Siberio, Esquire 525 N.W. 27th Avenue Suite 100 Miami, Florida 33125 Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Mr. William R. Perry, Jr., Director Alternative Education Placement Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent's educator's certificate should be subject to discipline for alleged attempts to persuade instructional staff members to change students' failing grades to higher passing grades without academic justification, for allegedly changing the grades of one or more students to higher grades without academic justification, and for allegedly "flagging" the grades of one or more students such that the grades would not count toward the students' grade point averages, in violation of Section 231.2615(1)(c), (f) and (h), Florida Statutes (2001), and Rule 6B-1.006(3)(a) and (d), (4)(b), and (5)(a) and (h), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Respondent, Suzanne Elliott, holds Florida Educator Certificate 558267, covering the areas of biology, physical education, and guidance counseling, which is valid through June 30, 2005. Ms. Elliott has a bachelor's degree in Physical Education, Recreation and Biology, and a master's degree in Guidance Counseling at the secondary level. Ms. Elliott was employed as a guidance counselor at Merritt Island High School ("Merritt Island") in the Brevard County School District (the "District") for the 1997-1998 and 1998-1999 school years. She had held this position since 1985. Ms. Elliott had also served for several years as the cheerleading coach at Merritt Island. Ms. Elliott was the crisis counselor for the entire Merritt Island student body, and was also heavily involved in special education and standardized testing. In fourteen years at Merritt Island, and eighteen years in the field of education, Ms. Elliott had no prior disciplinary actions brought against her license. Her employee evaluations uniformly ranged from "satisfactory" to "exemplary," with the exception of her evaluation dated October 26, 1998. This evaluation was "unsatisfactory," for reasons explained in the body of this Recommended Order. Relevant District policies To "establish suitable uniform procedures for marking and reporting progress of pupils," the District has adopted the Brevard County Secondary Schools Grading Procedures, which provide the following statement of purpose: Grades shall be a measure of a student's progress and achievement in mastering the subject matter, based on the quality of work done, and reflect a comprehensive evaluation which utilizes a number of marks. A student's regular attendance, daily preparation, and promptness in completing assignments should be consistent and congruent with these grades and taken into consideration in reporting a student's progress. During the period from 1997 to 2000, the Florida legislature required that a student have a 2.0 grade point average ("GPA") to compete or participate in sports, including cheerleading. Students who graduated in 1998-1999 were required to have a "minimum cumulative grade point average of 1.5 based on a 4.0 scale for the 24 credits required for graduation and a cumulative 2.0 unweighted GPA on all courses taken after July 1, 1997, which count toward graduation or a cumulative unweighted GPA of 2.0 on all courses taken." Students who graduated in 2000 and thereafter were required to have a minimum cumulative GPA of 2.0 based on a 4.0 scale for the 24 credits needed for graduation. Three of the District's Grading Procedures, and the proper interpretation thereof, provide the context for this case: the procedure regarding grade changes; the procedure regarding grade forgiveness, or "flagging" grades for courses that a student has repeated; and the procedure regarding "failure due to absences" or "FA" as a course grade. As to grade changes, the District's Grading Procedures provide: "Grades once recorded, other than an 'Incomplete,' will not be changed without approval of the principal. For justifiable academic reasons a principal may change a grade." Marjorie Ebersbach was the Area III Superintendent for Brevard County from 1997 to 1999. Area III included Merritt Island High School. As Area III Superintendent, Ms. Ebersbach was responsible for the operation of approximately 22 schools in the Brevard County area and reported directly to the Superintendent. Ms. Ebersbach confirmed that District procedure is that a student's grade may be changed for justifiable academic reasons with the permission of the principal. Merritt Island assistant principal Katherine Halbuer testified that a grade can be changed only by the teacher who assigned the grade or by the principal for justifiable academic reasons. Ms. Halbuer stated that under no circumstances does a guidance counselor have the authority to change a student’s grade. Cocoa Beach Junior/Senior High School ("Cocoa Beach") principal Leslie Patricia Vann, former Merritt Island principal William Dugan, Jefferson Middle School principal Gary Shiffrin, and Cocoa Beach teacher Mary Jane Binney, all testified that the District procedure for changing a student's grade is that the teacher who assigned the original grade may change it for a justifiable academic reason, with administrative approval. These witnesses agreed that a guidance counselor lacked the authority to change a student's grade. As to grade forgiveness for repeated courses, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA after the course is successfully repeated is referred to in the District as "flagging." A course flag can be added to a student’s transcript so that a certain course is excluded from the calculation of a student's grade point average. Guidance counselors do have the authority to flag a student's grades. At issue in this proceeding was the timing of the flagging. Each District employee who testified on behalf of the Department stated that after the student has retaken the course, received a higher grade, and had that grade posted to his official transcript by the district, the first course grade may be "flagged" so that the lower grade is excluded from the grade point average. These witnesses testified that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Ebersbach explained that while the student is retaking the course, he has "not earned a grade to replace the previous grade, and you’re excluding something from their academic record that you have no legal authority to exclude." Ms. Vann, Ms. Halbuer, and Mr. Dugan concurred with Ms. Ebersbach that the student must complete the second course and have the higher grade posted before the first grade could be flagged and excluded from the student's GPA. Barbara Jones, a guidance counselor at Cocoa Beach, who had interned under Ms. Elliott at Merritt Island, also testified that flagging a grade was appropriate only after the student had repeated the course and the second grade had been entered. Ms. Jones stated that she learned this procedure "on the job." Grade changes and flags were posted via computer data entry. For many years prior to February 1998, the District employed an IBM mainframe computer running programs written by District staff. This system was popularly known as "IRMA." In February 1998, the IBM mainframe was replaced by an IBM AS400 server, and the homegrown programs were replaced by a commercially developed software program called "Total Educational Resource Management System," or "TERMS." As to "failure due to absences," the District's Grading Procedures provide: When a student is to receive a failing grade due to excessive absences, the following guidelines will apply: Students who have earned an average of 70 or higher [i.e., a passing grade] will receive 69 [the highest failing grade] for the grading period. Students who have earned an average between 49 and 69 will receive the grade they have earned.... The District did not set a system-wide number of unexcused absences that would merit a course grade of "failure due to attendance" or "FA." Individual schools were allowed to establish their own standards. At Cocoa Beach, an FA would be given when a student had more than nine days of unexcused absences in a given course. A student who received an FA could appeal the grade by timely filing an appeal form and going before a faculty appeal committee, which could change the FA to the grade the student would have received but for the excessive absences. However, a student whose absences were due to truancy or skipping class would not be permitted to appeal the FA grade. The Allegations In August 1998, Ms. Vann, the principal of Cocoa Beach, was approached by one of her teachers, who asked her why a guidance counselor from Merritt Island would make inquiries as to the grades of a Cocoa Beach student. Ms. Vann thought this highly irregular, believing that a counselor from another school should first contact the principal of the school with any such inquiries. Upon investigation, Ms. Vann learned that the counselor in question was Ms. Elliott, and that she had contacted three Cocoa Beach teachers regarding S.H., a Cocoa Beach student and cheerleader, who was in the process of transferring to Merritt Island. At a principals' meeting on August 26, 1998, Ms. Vann raised the issue with Mr. Dugan, the principal of Merritt Island. Mr. Dugan told Ms. Vann that if she had allegations to make against Ms. Elliott, she should put them in writing and he would consider them. At about the same time as Ms. Vann began expressing concerns about Ms. Elliott, Merritt Island assistant principal Catherine Halbuer began her own investigation of Ms. Elliott. Heather Novitsky, a newly hired data entry clerk, came to Ms. Halbuer with a handwritten list of students and courses that Ms. Elliott had given her with instructions to flag the courses. Ms. Novitsky did not know what "flagging" meant. When Ms. Halbuer instructed Ms. Novitsky on the procedure for flagging a student's grade, she discovered that the students on the list had not repeated the classes that Ms. Elliott had marked for flagging. Ms. Halbuer met with Ms. Elliott in August 19982 to explain that a flag could not be entered until a student had repeated the class and the grade had been posted. At a subsequent meeting on August 26, 1998, Mr. Dugan and Ms. Halbuer again discussed the proper procedure for flagging student courses with Ms. Elliott. At this meeting, Mr. Dugan told Ms. Elliott that a course could not be flagged before the second class had been completed and the grade posted. Ms. Elliott indicated that she understood. Meanwhile, Ms. Vann was conducting an independent investigation of Ms. Elliott's involvement with student S.H. Ms. Vann personally reviewed S.H.'s academic history and discovered that someone outside of Cocoa Beach had made three grade changes to S.H.'s record without authorization from any teacher at Cocoa Beach. Ms. Vann also discovered that someone outside of Cocoa Beach had flagged six courses for S.H., none of which S.H. had retaken at the time of flagging. On September 11, 1998, Ms. Vann sent a package to Principal Dugan documenting her investigation into the grade changes and flags that had been made to S.H.'s records. Ms. Vann's cover letter to Mr. Dugan requested that S.H.'s transcript be corrected to reflect the grades that were issued by her teachers at Cocoa Beach. In response to Ms. Vann's memorandum and accompanying materials, Mr. Dugan commenced his own investigation into the allegations. He personally reviewed the student records compiled by Ms. Vann, and concluded from the user password on the computer printouts that Ms. Elliott was the person who flagged and changed the grades for S.H. Mr. Dugan also discovered that Ms. Elliott had flagged an "F" grade in Algebra I for Student M.P., despite the fact that M.P. had not retaken the course. Mr. Dugan decided that these findings merited a thorough review of Ms. Elliott's flagging practices. Mr. Dugan contacted the District's main office, which assigned its systems analyst, Andrea Young, to compile information for Mr. Dugan's review. Ms. Young spent approximately three months compiling computer records regarding Ms. Elliott's case. On September 15, 1998, Mr. Dugan orally informed Ms. Elliott of the allegations against her and gave her 24 hours to respond. Mr. Dugan also told Ms. Elliott that she was prohibited from accessing TERMS until the allegations against her were resolved. Ms. Elliott did not respond to the substance of the allegations by September 16, 1998. However, on that date Ms. Elliott requested that Mr. Dugan put the allegations in writing so that she could obtain the assistance of her union representative. On September 17, 1998, Mr. Dugan addressed a memorandum to Ms. Elliott that set forth the following allegations: Mrs. Elliott approached three teachers at Cocoa Beach High School requesting a grade change for student [S.H.]. Mrs. Elliott did flag six grades for [S.H.] so they would not count on her gpa at approximately 6:00 p.m. on 8/27/98 and 8/28/98. Mrs. Elliott did change three grades for [S.H.] on 8/27/98 and 8/28/98. Mrs. Elliott did flag one grade for [student M.P.] so it did not count on her gpa on 8/27/98. I am requesting that you provide me with a written response to these allegations by 9:00 a.m. Monday, September 21, 1998. Also on September 17, 1998, prior to receiving any substantive response from Ms. Elliott, Mr. Dugan wrote a memorandum to Leroy Berry, the District's assistant superintendent for human resources. The memorandum stated that Mr. Dugan had completed his investigation and concluded that Ms. Elliott had in fact committed the acts described as "allegations" in his memorandum to her. Mr. Dugan further wrote that Ms. Elliott's failure to respond to the substance of his allegations within the 24-hour deadline he had given her on September 15, along with the documentation he received from Ms. Vann, led him to conclude that Ms. Elliott had changed and flagged the grades of S.H. and M.P. with the intent of making them eligible for the cheerleading squad. On September 21, 1998, Ms. Elliott gave Mr. Dugan her written response to each of the allegations: I had telephone conversations with three teachers from Cocoa Beach High School (CBHS) and explained that we had put [S.H.] on a contract—- a procedure that we use at Merritt Island High School (MIHS) for students with Failed/Attendances (FAs). I asked them if they would be willing to change the grades pending administrative approval if she followed through with the contract; she attended every day of summer school at CBHS and passed the classes. Two of the teachers said she was a good student, and they would be willing to help her. One teacher said there were no appeals processes or contracts at CBHS. I flagged courses she repeated in summer school, courses that were FAs, and courses in which she was presently enrolled. After practice on 27 and 28 August, at approximately 6 pm, [S.H.] came down to my office for counseling regarding her grades. I explained to her the effort she needed to apply to her studies, using the computer to demonstrate by making changes to letter grades. I never intended the grades to be changed permanently, evidenced by the fact that I never changed the Quality Points. Both changes are required for permanent grade changes. I did not know enough about the TERMS Program to realize that those changes I did make in demonstration to [S.H.] would be automatically saved when I exited the program. [M.P.] made up both of the courses in question in summer school and achieved the necessary grade to be eligible [for cheerleading]. On September 22, 1998, Mr. Dugan addressed to Mr. Berry a detailed memorandum in response to Ms. Elliott's memorandum of September 21. In his memorandum, Mr. Dugan stated that the contract procedure described by Ms. Elliott had never been used at Merritt Island, though he conceded that the principal might enter a contract to change the grade of a student "when faced with parental pressure on a questionable situation or to motivate a student in attendance trouble during that semester...." Mr. Dugan also noted that, according to Ms. Vann, no teacher at Cocoa Beach gave approval for a grade change. Mr. Dugan wrote that S.H. repeated only one class in summer school, that it was a class S.H. had already passed with a "B," that her grade for the course for summer school was also a "B," and that Ms. Elliott had improperly counted both "Bs" in the same course toward S.H.'s eligibility to participate in cheerleading. Mr. Dugan wrote that Ms. Elliott's flagging of S.H.'s grades of FA were both unauthorized and untimely, as was the flagging of M.P.'s grade for Algebra I. Finally, Mr. Dugan questioned Ms. Elliott's claim of ignorance as to entering grades on the TERMS system: "[A]ll counselors know anytime you change a grade on TERMS and hit enter, the screen automatically tells you the information has been taken and the record has been updated." On October 8, 1998, Mr. Dugan outlined a new allegation in a memorandum to Mr. Berry. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to access the TERMS system, in contravention of Mr. Dugan's order of September 15, 1998. At some point in early October 1998, the District suspended Ms. Elliott with pay, pending the results of the investigation. On October 26, 1998, Ms. Elliott received an official letter of reprimand stating as follows, in relevant part: This is an official letter of reprimand for your violations of School Board Policies 6Gx5-4.04 Access to Student Records, and 6Gx5-7.01(8) Compliance with Policies Required, the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.006, [Florida Administrative Code] (3)(d); (4)(a)(b)[sic]; and (5)(a) and two instances of gross insubordination to administrative directions. Not only did you request a teacher at Cocoa Beach Junior/Senior High School to change students' failing grades, you blatantly ignored my specific instructions on two occasions and changed failing grades and/or course flags of two students thereby raising their expectations to become eligible for participating on the Merritt Island High School cheerleading squad. Your access to TERMS was removed yet you deliberately went into the program utilizing another colleague's password. This letter serves to officially notify you that you no longer will be able to have access to TERMS. As of today, October 26, 1998, your suspension with pay has been rescinded by the Superintendent and you are being reassigned to the Abeyance Center, Cogswell site, effective tomorrow, Tuesday, October 27, 1998. You are to report to Kim Armellini, assistant principal, at 8:00 A.M. As you are removing your personal items on October 26, 1998, there remains no further reason for your continued presence on the Merritt Island High School campus. In early 1999, the District decided to terminate Ms. Elliott's employment. Ms. Elliott challenged that decision in DOAH Case No. 99-0207. The case was settled in November 1999, prior to hearing. Ms. Elliott voluntarily resigned her position with the District as part of the settlement. The investigation into Ms. Elliott's grade changes and flags continued even after she was removed from the Merritt Island campus and ultimately left the employ of the District. As noted above, Ms. Young's compilation of computer records relating to flags entered by Ms. Elliott continued through approximately December 1998. In October 1998, Marjorie Ebersbach took over as area superintendent and asked Mr. Dugan to bring her up to speed on any matters of concern at Merritt Island. Mr. Dugan briefed her on the Elliott investigation, and Ms. Ebersbach began her own investigation of the matter. During her personal investigation, Ms. Ebersbach met with Principal Dugan, Ms. Young, and Assistant Principal Halbuer. She also reviewed student records and concluded that Ms. Elliott had improperly flagged and changed student records. Mr. Dugan also continued his personal review of student records allegedly altered by Ms. Elliott, and finally concluded that "the evidence on file indicates Ms. Elliott continually violated . . . accepted ethical practices and she [should] be terminated." Ms. Halbuer, the assistant principal, also continued her investigation. She pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. A number of these students with altered records had already graduated. Memoranda by Ms. Halbuer outlining fresh allegations against Ms. Elliott appeared as late as February 15, 1999. Based on her personal review of the student records, Ms. Halbuer concluded that Ms. Elliott "flagged on a wide scale throughout all of her senior students, and also that some students had actual classes, based on their transcripts, that they never took, and that some students received diplomas that probably should not have received diplomas." The Evidence This section deals with the charges against Ms. Elliott for which the Department was able to produce evidence sufficient to establish a prima facie case of wrongdoing by Ms. Elliott. As will be discussed below, the passage of time and the routine destruction of records meant that the Department was unable to make a prima facie case regarding several students as to whom Ms. Halbuer's accusatory memoranda were unsupported by the documents on which she relied. Student S.H. Student S.H., an African-American female, attended ninth grade at Cocoa Beach in the 1997-98 school year. S.H. was a talented cheerleader but, by her own and her mother's testimony, she was going through a rebellious period. She fell in with the "wrong crowd" and began a pattern of skipping classes with her friends. Because of her truancy, S.H. received grades of FA in four of her ninth grade classes, including classes taught by Michael Gaudy, Michael Drake, and Mary Jane Binney. Cocoa Beach allowed students who had received a grade of FA to appeal that grade, but maintained a strict prohibition against appeals by students whose FA grades were due to skipping school. Ms. Vann, the Cocoa Beach principal, had evidence in her records that S.H. had skipped school, including records from teachers, phone calls to her parents, and referrals of S.H. to the dean’s office for truancy. Ms. Vann documented at least fourteen dates on which a teacher or administrator from Cocoa Beach contacted or attempted to contact S.H.'s parents regarding truancy, absences, grades, and leaving class. At the end of her ninth grade year at Cocoa Beach, S.H. had a GPA of 1.333, well below the 2.0 GPA required for participation in cheerleading. S.H. cheered on an independent, competitive "all star" team which included several members of the Merritt Island cheerleading squad. With the encouragement of some Merritt Island cheerleaders, S.H. approached Ms. Elliott in April 1998 about coming to Merritt Island and cheering for its team. Merritt Island was the school for which S.H. was actually zoned. She had attended Cocoa Beach because her older brother went there, but he graduated in Spring 1998. S.H. and her mother, M.H., wanted S.H. to transfer to Merritt Island. M.H. believed that Merritt Island would provide S.H. with a fresh start to her high school career away from the people with whom she'd been in trouble at Cocoa Beach. M.H. also believed that the larger African-American student population at Merritt Island would be positive for S.H. socially and academically. S.H. learned of the FA appeal process from one of the friends who had skipped school with her. This friend said that she had successfully appealed her FAs through Ms. Vann. However, when S.H. went to the Cocoa Beach office and attempted to file an appeal, her efforts were rejected as untimely. Because S.H.'s friend was white, S.H. and her mother suspected there was some racial motive in the rejection of her appeal. The evidence presented at hearing did not demonstrate that S.H.'s appeal was denied for any reason other than it was untimely. Ms. Elliott's initial reaction to hearing S.H.'s allegation of racial discrimination was to tell S.H. that there was nothing she could do. She advised S.H. to handle the problem herself, with her mother's assistance. However, M.H. subsequently told Ms. Elliott that she could not deal with the personnel at Cocoa Beach. Ms. Elliott offered to help collect information that the parent could present to the administration at Cocoa Beach to appeal the FA's. Ms. Elliott believed that Mr. Dugan might help and even intercede directly with the administration at Cocoa Beach, because Merritt Island was more lenient about granting FA appeals and because Mr. Dugan had helped her before with similar problems. Ms. Elliott was aware of several successful FA appeals at Merritt Island involving students who had more absences than S.H. Ms. Elliott also testified that Mr. Dugan had always been supportive of the cheerleading squad. Ms. Elliott advised S.H. that she would have to show "massive improvement" in her school work and spent time with S.H. to work on improving her grades. Ms. Elliott reviewed S.H.'s complete cumulative academic folder, counseled her on the racial issues she had raised, advised her on appealing the FAs, encouraged her to go to summer school, spent time with her after-hours, and placed her on the aforementioned "contract." The contract, signed on May 4, 1998, by Ms. Elliott, S.H., and M.H., stated: I, [S.H.], will attend summer school everyday [sic] during summer I and II to repeat courses I failed during my ninth grade year at Cocoa Beach High School in an effort to show my true capabilities and academic potential. In my efforts I realize that I can "audit" (x) or have my FA's changed from semester I at Cocoa Beach High School with the cooperation of my teachers from Cocoa Beach High School and/or administration from Merritt Island High School. I also realize that if I earn a D or an F during any term, as a Varsity Cheerleader at Merritt Island High School I will be on academic probation and will be required to work with a tutor one day a week. At the hearing, Mr. Dugan testified that one of his chief objections to the contract with S.H. was that Ms. Elliott did not obtain his approval. He stated that only the principal or his designee could enter into such a contract with a student. Mr. Dugan further stated: But in all of these cases, the contract would have to have the student right the wrong, whatever it was that they had done, okay? For example, you may give a student who's... passed mathematics with a C but failed it through excessive [absences]. You might write a contract with that student that if you don't miss any more than three days the next semester I would remove the FA because you've shown the fact that you can attend and will attend on time. Mr. Dugan found Ms. Elliott's contract with S.H. "totally illegal" because at the time the contract was executed, S.H. was not a student at Merritt Island. Further, Ms. Elliott was holding out the possibility of changing S.H.'s Cocoa Beach FAs with no real way of knowing whether it could be done. Ms. Elliott advised S.H. that she was ineligible for cheerleading upon her transfer in August 1998, and could not cheer until she became academically eligible. S.H. took two classes every day over her summer break. She received an "A" in one class, and a "B" in the other, with no absences. Ms. Elliott testified that in August 1998 she phoned three of S.H.'s teachers at Cocoa Beach, not to ask them to change S.H.'s FA grades in their classes, but to obtain information about S.H’s performance in their classes and to inform them of the assistance she was giving S.H. Ms. Elliott testified that one reason she called the teachers was to verify what S.H. was saying about her performance at Cocoa Beach. Ms. Elliott asked the teachers how often and why S.H. was absent from their classes, what grades S.H. would have earned but for the excessive absences, and whether she had brought an appeal of the FAs to any of them. Ms. Elliott conceded that her September 21, 1998, written response to Mr. Dugan's allegations included the statement: "I asked them if they would be willing to change the grades pending administrative approval if [S.H.] followed through with the contract." Ms. Elliott testified that this was in the nature of a shorthand response to Mr. Dugan's inquiry, and reiterated that she never directly asked the Cocoa Beach teachers to change S.H.'s grades. Ms. Elliott testified that she would have crafted her written response with more care had she understood the gravity of her situation. All three of the Cocoa Beach teachers contacted by Ms. Elliott testified at hearing. Each teacher verified that he or she was telephoned by Ms. Elliott, and that Ms. Elliott did not ask him or her to change the FA grade given to S.H. None of the three teachers recalled S.H.'s requesting an appeal of her FAs. Mike Drake taught ninth grade World Geography to S.H. during the 1997-98 school year and gave her an FA for more than nine unexcused absences. He stated that S.H. would likely have made a high "B" in his class but for the absences. Mr. Drake recalled that another teacher had circulated an e-mail throughout Cocoa Beach regarding the fact that S.H. had skipped school and that S.H.'s mother had been contacted concerning the absences. Mr. Drake confirmed that Ms. Elliott did not ask him to change S.H.'s grade. He stated that his interpretation of Ms. Elliott's purpose in calling was "gathering information." Mary Jane Binney, who taught Life Management to S.H. during the 1997-98 school year, testified that S.H. would have made a "C" in her class but for the absences. Ms. Binney testified that Ms. Elliott told her that she was helping S.H., and that Ms. Elliott "absolutely" did not ask her to change S.H.'s grade. Mike Gaudy, the athletic director at Cocoa Beach, had taught Weight Training to S.H., though he had no recollection of S.H. or of the grade she would have received but for her excessive absences. Mr. Gaudy thought it was "peculiar" that Ms. Elliott would contact him about a student who no longer attended Cocoa Beach. He was the teacher who reported his conversation with Ms. Elliott to his principal, Ms. Vann, who had him write a statement concerning his conversation with Ms. Elliott. Mr. Gaudy's written statement strongly implied that Ms. Elliott's purpose in calling was to persuade him to change S.H.'s grade. At the hearing, Mr. Gaudy testified that Ms. Elliott in fact never asked him to change a grade. The subject of grade changes came up only because Mr. Gaudy asked Ms. Elliott if that was her purpose in calling. In summary, no evidence was presented that Ms. Elliott at any time "improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification." Ms. Elliott was attempting to work out some form of grade forgiveness for S.H., contingent upon her improved performance in summer school and beyond, but there is no indication that she did anything "improper" aside from failing to involve Mr. Dugan in her efforts. At worst, Ms. Elliott failed to understand that Cocoa Beach's policy concerning FAs was more unyielding than the policy at Merritt Island, and that suspicions would therefore be aroused at Cocoa Beach when she began making inquiries about S.H.'s grades. The next phase of the narrative requires a digression on the working of TERMS. As noted above, TERMS was introduced to the District in Spring 1998. Training of District personnel on the use of TERMS began in February 1998. Ms. Elliott attended the first introductory course in February, and there learned that the entire District would immediately begin using TERMS for student scheduling. The training was to include a preview of the different "screens" on TERMS, including the scheduling screen and the attendance screen. Each type of screen required separate training. More than one hundred trainees attended the course with Ms. Elliott. They were provided no hands-on training; rather, they viewed a simulation of the TERMS program on an overhead projector and heard descriptions of the program's capabilities. One working TERMS terminal was set up to demonstrate its functionality, but the program constantly malfunctioned. Ms. Elliott testified that District personnel were skeptical about TERMS because they had heard about severe problems experienced in another large county, where the program was unable even to print transcripts. She testified that the malfunctions of the program at this introductory course intensified the general apprehension about TERMS. Ms. Elliott was not the only witness to discuss the problems with TERMS. Mr. Dugan testified that "there was an awful lot of frustration not only with my staff but with myself and all the other principals. Getting on the new system was a frustrating experience for all of us." Ms. Vann found the TERMS program "a lot more complex" than IRMA, "difficult" enough that she created her own training handbook that was ultimately circulated to all principals in the District. Mr. Dugan testified that TERMS was a "difficult program," and that it was "probably unfair" to expect the guidance counselors to use it for scheduling without adequate training. Ms. Elliott never received hands-on training on the scheduling screen. She learned on the job by scheduling students into their classes with the help of a "cheat sheet" prepared by a fellow guidance counselor who attended a later TERMS training session. She scheduled students for their Fall 1998 semester classes, asking for help when she made a mistake. Ms. Elliott received no training on the "academic history" screen, which was the screen used to enter grade changes or flags on a student's record. Ms. Elliott repeatedly requested hands-on training, but never received it. She tried to learn the program by watching what the other counselors did. Ms. Elliott testified that she had learned through "gossip of the counselors" that the TERMS program could be used as a counseling tool. She was told that it had the capability to allow a counselor to sit with a student and run hypothetical, "what if" scenarios regarding how the student's GPA could be improved or lowered depending on the grade received in a particular class or classes. Ms. Elliott was excited by this possibility, because the only way a counselor currently had to play such "what if" games was pencil and paper calculation, which was time consuming and subject to error. She believed that seeing the possible GPA improvement pop up immediately on a computer screen would be more likely to inspire the student to earn those grades, and she looked forward to using this tool with her counseling students. In fact, the TERMS program has no such "what if" capability, though systems analyst Andrea Young testified that it would be possible to write a program to give TERMS that capability. Ms. Young also testified that TERMS automatically saved any grade changes entered, without giving the user any opportunity, in the form of a "save" warning or otherwise, to rescind a grade entry. On the evening of August 27, 1998, after cheerleading practice, Ms. Elliott sat down in her office with S.H. to review her summer school grades on the "academic history" screen of the TERMS program. At this point, Ms. Elliott had seldom if ever attempted to manipulate data on the academic history screen. She had never changed letter grades, though she had entered flags for repeated courses. Ms. Elliott attempted to show S.H. what her GPA would be after her summer school grades were posted, and what it would be if S.H. were able to obtain the letter grades she would have received in the three classes at Cocoa Beach but for her excessive absences. Ms. Elliott entered the grades, but noticed that the grade changes resulted in no change in S.H.'s quality points or overall GPA on the TERMS screen. Ms. Elliott was perplexed. She knew from experience that flagging the grades would change the GPA, so she entered flags next to each grade. Flagging the grades did change the GPA, and enabled her to counsel S.H. Ms. Elliott testified that her only intention was to motivate S.H., to show her what would happen if she could successfully appeal the FAs from Cocoa Beach. She told S.H. that she would not likely raise her GPA sufficiently to be eligible for cheerleading in her first semester at Merritt Island, but that it would be possible to attain eligibility in her second semester. S.H. testified at the hearing, and completely corroborated Ms. Elliott's version of events. She confirmed that Ms. Elliott told her she was not eligible to cheer for Merritt Island. S.H. testified that her main concern at the time was to get away from Cocoa Beach, not to cheer for Merritt Island. She was already cheering for an elite competitive team away from school. S.H. testified that she began to cheer for Merritt Island during the second semester of her tenth grade year. Ms. Elliott testified that when she used the old IRMA system, the screen would clear upon signing off. IRMA required an affirmative keystroke to make grade changes permanent. Ms. Elliott did not realize until the evening of August 27, 1998, that TERMS made the changes automatically. Ms. Elliott returned to S.H.'s record in the TERMS program the next evening, August 28, 1998. Ms. Elliott testified that she was determined to figure out how to make grade changes on the TERMS program, and how to correct the erroneous grade changes and flags she had entered the previous evening. She had no better luck on the second night. Ms. Elliott testified that she never intended to make permanent changes in S.H.'s records. She expected to change the grades back to their correct status when she received S.H.'s cumulative folder from Cocoa Beach. She never made the corrections because the investigation commenced and she was barred from using TERMS before she had an opportunity to do so. The only evidence that Ms. Elliott altered S.H.'s records in order to make her eligible for cheerleading came from Mr. Dugan, who testified that S.H. cheered for Merritt Island at a Spring 1998 football jamboree before she was even a student at Merritt Island. Mr. Dugan also testified that he had "personal knowledge" that S.H. cheered for Merritt Island at the first three football games in Fall 1998, though he did not elaborate on the nature of this personal knowledge.3 He testified that he would have believed Ms. Elliott's story about playing "what if" games on the TERMS program, had she not placed S.H. on the cheerleading squad. Ms. Elliott, S.H., and M.H. testified that they all understood S.H. was not eligible to cheer during the Fall semester of 1998. S.H. testified that she was allowed to practice with the team, and was allowed to wear the uniform to games but was not allowed to cheer with the team. The last point accounts for the contradiction between Mr. Dugan's testimony and that of Ms. Elliott and S.H. Mr. Dugan testified that a cheerleader who did not have a 2.0 GPA could work out and practice with the team, but was not permitted to wear the uniform or cheer at school activities. Ms. Halbuer, the assistant principal at Merritt Island and a former junior varsity cheerleading coach, confirmed Mr. Dugan's statement that an ineligible cheerleader cannot wear the uniform. According to her own testimony, S.H. was allowed to wear the cheerleader uniform to games before she was eligible. The weight of the testimony establishes that Ms. Elliott should not have allowed S.H. to wear the uniform. However, despite Mr. Dugan's testimony, the evidence is persuasive that Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of 1998, and that S.H. did not actually cheer with the team at any games prior to becoming eligible in the Spring semester of 1999. Ms. Elliott's testimony as to how S.H.'s grades came to be changed and flagged is persuasive and credited. Ms. Elliott was negligent in failing to take steps immediately to correct S.H.'s grades. Rather than waiting for S.H.'s cumulative file to come over from Cocoa Beach, Ms. Elliott should have approached her superiors at the first opportunity to explain what happened and obtain assistance in correcting the record. However, the evidence presented at the hearing did not demonstrate that Ms. Elliott intentionally altered S.H.'s grades to make her eligible to cheer for Merritt Island. Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of the 1998-99 school year. Student M.P. Student M.P., a white female, attended ninth grade at Jefferson Junior High School ("Jefferson") in the 1997-98 school year. She transferred to Merritt Island to begin tenth grade in Fall 1998. M.P. was a cheerleader, and attended summer cheerleading camp with Ms. Elliott during the summer of 1998. In the ninth grade at Jefferson, M.P. took Algebra I during her first semester and received an "F." She was placed in Applied Math I for the second semester of ninth grade and received a "D." Two semesters of Applied Math I are considered the equivalent of one semester of Algebra I. At the end of ninth grade, M.P. was advised by her counselor at Jefferson that she should repeat Algebra I during the 1998 summer session. She applied to take Algebra I, but was told that it was not available. Therefore, she signed up for two semesters of Applied Math I. M.P. earned a "C" for the first semester and an "A" for the second semester of Applied Math I during summer school. On August 27, 1998, Ms. Elliott entered flags for M.P.'s ninth grade "F" in Algebra I and "D" in Applied Math I, meaning her grades in those courses would not count toward M.P.'s GPA. Ms. Elliott's logic was that, because Applied Math I is considered an equivalent course to Algebra I, M.P.'s two semesters of Applied Math I in summer school could replace her two semesters of Algebra I and Applied Math I in the ninth grade. The two flags entered by Ms. Elliott made M.P. eligible to cheer during the 1998 fall semester at Merritt Island. Believing M.P. to be eligible, Ms. Elliott permitted M.P. to cheer at three Merritt Island football games in August and September 1998. During his September 1998 investigation of Ms. Elliott, Mr. Dugan discovered the flag for Algebra I on M.P.'s records. Noting that M.P. had never retaken Algebra I, and declaring that a flag was appropriate only where a student has retaken the identical course, Mr. Dugan ordered the flag removed. With the "F" in Algebra I returned to the calculation, M.P.'s GPA fell below 2.0. Mr. Dugan ordered M.P. removed from the cheerleading team in late September 1998. He had a meeting with M.P.'s parents at which he told them that "something was going on," that grades had been changed that should not have been changed, and that M.P. was no longer eligible to cheer for Merritt Island. M.P.'s parents approached Ms. Elliott to find out what happened. Ms. Elliott did not believe that Mr. Dugan's insistence that only identical courses were eligible for flagging was consistent with Florida Department of Education policy. She telephoned Sharon Koon, her contact at the Department of Education, who verified that Algebra and Applied Math are viewed as equivalent and that the "F" in Algebra I could be flagged because M.P. took two semesters of Applied Math I during summer school. On October 8, 1998, M.P.'s parents returned to Mr. Dugan to inform him of Ms. Elliott's findings. Mr. Dugan was upset that Ms. Elliott had discussed the matter with M.P.'s parents before talking to him about the matter. He nonetheless consulted Daniel Scheuerer, the District's assistant superintendent for academics, who informed him that the two semesters of Applied Math I could indeed substitute for Algebra I. Therefore, Ms. Elliott's flag of M.P.'s "F" grade in Algebra I had been correct. However, Mr. Scheuerer also noted that if both semesters of Applied Math I were used to forgive M.P.'s grade in Algebra I, then there was nothing that could be used to forgive M.P.'s "D" grade in Applied Math I for the second semester of ninth grade. Thus, Ms. Elliott's flag of the "D" grade for Applied Math I would have to be removed even as the flag for M.P.'s "F" in Algebra I was reinstated. The end result was that M.P. remained ineligible for cheerleading. The evidence regarding M.P. establishes no more than a good faith misunderstanding regarding equivalent courses by Ms. Elliott. It was apparent that Mr. Dugan himself misunderstood the application of equivalencies prior to consulting Mr. Scheuerer. There was insufficient evidence that Ms. Elliott intentionally entered improper flags for M.P. in order to make her eligible for the cheerleading squad. Improper Use of Password As noted above, Mr. Dugan's October 8, 1998, memorandum to Mr. Berry outlined a new allegation against Ms. Elliott. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to gain access to the TERMS system, in contravention of Mr. Dugan's order that Ms. Elliott was not to use TERMS while she was under investigation. It must be noted that the allegation of improper use of Ms. Peters' password was not among the factual allegations set forth in the Administrative Complaint. No objection was lodged by counsel for Ms. Elliott on this basis. Ms. Elliott was aware of this allegation and fully joined the issue at the final hearing. It is found that the pleadings of the Administrative Complaint were effectively amended to conform to the evidence. Kathleen Peters was the director of guidance at Merritt Island. She was Ms. Elliott's direct superior. On September 30, 1998, Ms. Peters called in sick with a migraine headache. She was in the midst of rearranging the schedules for Spanish classes, and had a list of changes that had to be entered on the computer that day. She phoned the guidance office and reached Ms. Elliott, who was the only guidance counselor present at Merritt Island on that day. Ms. Peters explained the situation to Ms. Elliott, and asked her to make the schedule changes and corrections. Ms. Elliott told Ms. Peters that she could not use her own code to access the TERMS program. Ms. Elliott did not tell Ms. Peters that Mr. Dugan had prohibited her from using TERMS. At the hearing, Ms. Elliott indicated that her reticence was largely due to embarrassment over the investigation of her computer use. She was unsure whether her colleagues in the guidance office knew about the investigation, and was unsure herself of the investigation's scope and how much information she should share with Ms. Peters. Ms. Elliott asked Ms. Peters for her code to the TERMS system. Ms. Peters saw nothing unusual in this request, because it was not uncommon for TERMS to deny access to some users for apparently arbitrary reasons. Ms. Peters testified that she had been denied access on occasion. Ms. Peters gave her code to Ms. Elliott. Ms. Elliott attempted to access TERMS on her own computer, using Ms. Peters' code. She was denied access. She thought that the code might work if entered on Ms. Peters' computer. However, given the allegations that had already been made against her, Ms. Elliott thought she ought not be seen going into Ms. Peters' office and trying to use Ms. Peters' computer. She decided simply to tell Ms. Peters that she had tried but could not access TERMS. Ms. Elliott testified that she did not make changes to any records using Ms. Peters access code. Her testimony on this point was confirmed by Mr. Dugan, who admitted at the hearing that a subsequent investigation revealed no records that had been accessed by Ms. Elliott by way of Ms. Peters' security code. On October 5, 1998, during a scheduling discussion, Ms. Peters learned from Ms. Halbuer that Ms. Elliott was prohibited from using the computer. Ms. Peters then reported to Ms. Halbuer that Ms. Elliott had obtained her access code on September 30. Ms. Halbuer relayed this information to Mr. Dugan, who added this incident to the list of allegations related to Ms. Elliott in his memorandum of October 9, 1998: On September 15, 1998, I informed you that you were not permitted to use TERMS until the investigation reference [sic] the allegations against you were resolved. On Wednesday September 30, 1998, Mrs. Elliott did request and receive Mrs. Peters security code and did access TERMS without requesting authorization or receiving authorization. This allegation was sustained by the evidence at least insofar as Ms. Elliott obtained Ms. Peters' code and attempted to access TERMS. Ms. Elliott's culpability is mitigated by the exigency of the situation and by the fact that she did not actually make use of Ms. Peters' security code. Nonetheless, Ms. Elliott well understood that she was prohibited from accessing TERMS. There were numerous options available to her that did not involve direct insubordination to Mr. Dugan's directive. She could have obtained the assistance of the data entry clerk. She could have approached Mr. Dugan or Ms. Halbuer with her dilemma. She could have simply leveled with Ms. Peters as to why she was unable to use her own security code. However wronged she felt by the ongoing investigation, Ms. Elliott had no authority to disregard Mr. Dugan's order. Flagging in general As noted above, the investigation of Ms. Elliott continued even after the District removed her from Merritt Island and terminated her employment. In particular, Ms. Halbuer, the assistant principal, pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. At the hearing, the Department was unable to produce the complete files of some of the students whose records Ms. Halbuer investigated, because school policy dictated destruction of her investigative records after the passage of a certain amount of time. The complete files would have contained the final, official transcripts of the students as well as Ms. Elliott's counseling notes. In some instances, the only proof offered was Ms. Halbuer's conclusory memoranda attesting that certain students' grades had been improperly flagged. In other instances, only the unofficial, editing copy of the transcripts was provided. Ms. Halbuer's honesty is not in doubt. However, it would be inherently unfair to require Ms. Elliott to mount a defense as to these students, more than four years after the fact, without access to the cumulative files and her own counseling notes to refresh her memory. Thus, it must be found that the Department failed to provide prima facie evidence as to any of the fifty-six students save those discussed below. Ms. Elliott's understanding of the flagging procedure was markedly different than that of the administrators. To reiterate, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA is referred to in the District as "flagging." The text of the Grading Procedures quoted above does not expressly provide instruction as to the proper time for entry of a course flag. However, each District witness who testified on behalf of the Department stated that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the second grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Elliott testified that she never saw the written grade forgiveness procedure until after the allegations here at issue were first lodged, when her union representative obtained a copy from the District. Ms. Elliott first learned that the District had a forgiveness policy in the early 1990s when she was being trained by Nancy Rhoda, who was then the guidance department chair. Ms. Elliott was instructed to check the students' records for courses that they repeated, and to have those courses flagged. Ms. Elliott's consistent understanding of the policy was that a course could be flagged while the student was repeating the course. Ms. Elliott was one of three guidance counselors at Merritt Island, and was responsible for scheduling approximately 500 students every semester. At times, she was assigned upwards of 700 students. Part of her duties was to schedule her students into classes they wanted to repeat pursuant to the forgiveness policy. Each semester comprised three six-week grading periods. At the close of each six-week grading period, Ms. Elliott would receive computer printouts of each of her assigned students' grades. Thus, there would be a first, second, and third six-week report of the grades her students were receiving in their respective classes. Ms. Elliott typically flagged after she had two six-week grade reports before her, thus having a relatively solid basis for anticipating that the student was going to pass the repeated course. She testified that she flagged courses only when she was convinced the student was "doing fine" in the repeated course. Ms. Elliott would compile a list of students and courses to be flagged and give it to Jan Amico, the data entry clerk, after the second six-week grading period. The flags would be entered during the thirteenth or fourteenth week of the eighteen-week semester, depending on how long it took Ms. Elliott to meet with each student and review their progress. By this time, Ms. Elliott would know whether the student was passing the repeated class. Ms. Amico, who was the data entry clerk at Merritt Island for four years, testified at the hearing. She confirmed that Ms. Elliott's method of flagging had been consistent during Ms. Amico's tenure at Merritt Island. During the first six weeks of a semester, Ms. Elliott assisted all of her assigned students with their class scheduling problems. During the second six weeks, Ms. Elliott typically had more time to review each of her students' grades via the computer printouts provided each guidance counselor. She went through the grade printouts and contacted students who were failing classes to offer academic counseling and tutoring while they still had roughly nine weeks to improve their final semester grade. While Ms. Elliott tried to meet with each student in her charge during the middle of the term, she made it a priority to meet with students who were having difficulty passing classes, those needing special attention, and those she felt might need more support from their parents. If a student received a "D" or "F" grade on the first or second six-week grading report, Ms. Elliott would counsel that student. She would also meet with the teacher to see what could be done to help the student. If needed, Ms. Elliott would arrange for tutoring by one of the volunteers she had recruited from the community. These tutors included her own husband, Joe Elliott, who tutored many students in math. At the end of the semester, Ms. Elliott would meet with her students again. They would review the student's unofficial transcript to make sure the recorded grades were correct, and make any necessary corrections. If the student received a failing grade for a repeated class, Ms. Elliott would have the flag removed from the student's record. Ms. Elliott testified that she was in constant contact with college admissions officers, who asked her to flag courses so they could determine whether their applicants were retaking failed courses. Ms. Elliott stated that the admissions officers followed the students' progress and liked to know whether students applying to their colleges were making extra efforts to master difficult materials. Ms. Elliott testified that she had followed this flagging procedure since the early 1990's, that the teachers, her direct supervisor, the school's department chairs, and the assistant principal in charge of guidance all knew her method for flagging grades, and that no one had ever told her it was inappropriate until Ms. Halbuer did so in August 1998. Ms. Elliott testified that even when Ms. Halbuer told her that she should wait until the end of the semester to flag courses, there was no implication that Ms. Elliott had been doing anything wrong. Rather, Ms. Halbuer indicated that the new data entry clerk was just learning the TERMS system and was overwhelmed with work, and so the entering of course flags would have to wait. As a general matter, it is found that Ms. Elliott's practice of entering the flags prior to the student's receiving a final grade in the repeated course was against the District's policy as generally understood by the District administrators. However, nowhere was this general understanding reduced to writing in unequivocal terms. The understanding may be inferred from the written Grading Procedure, but nothing in the procedure may fairly be read to forbid Ms. Elliott's longstanding method of flagging. To the extent that Ms. Elliott's flagging of individual student grades followed the procedure she described, i.e., the student was enrolled in the repeated class, appeared to be passing the class at the two-thirds point of the semester when the flag was entered, and Ms. Elliott corrected the record at the end of the semester, she cannot be found to have violated a clearly stated policy of the District. Mr. Dugan, Ms. Halbuer, and Ms. Ebersbach all testified that Ms. Elliott's method of flagging artificially inflated her students' GPA's and distorted their relative class standing. This concern was valid but transitory, to the extent that Ms. Elliott followed her stated procedure. A student's GPA would be inflated for the four or five weeks of the semester between the time the flags were first entered and the final grades were posted. After the grades were posted, the flag would either be validated or removed by Ms. Elliott, ensuring the accuracy of the GPA and class standing reflected on the official transcript. As noted above, the Department was not able to produce the complete files for all of the fifty-six students whose records Ms. Elliott is alleged to have improperly flagged. The students discussed below were those for whom the Department was able to produce records sufficient to establish the circumstances of the flagging and to refresh Ms. Elliott's memory as to those circumstances. As to Student B.H., Ms. Halbuer discovered that Ms. Elliott entered a course flag for B.H.'s "F" grade in Algebra I Honors for the first semester of the 1995-96 school year, despite the fact that B.H. repeated Algebra I rather than the honors course. Ms. Halbuer testified that it is improper to flag an honors course with the grade from a regular course, even where the course material is the same. Ms. Elliott conceded that she flagged the honors course based on B.H.'s successfully completing the regular Algebra I course. Her rationale was that a student must receive a teacher's recommendation to enroll in an honors course, and no teacher would have recommended B.H. to repeat Algebra I Honors after she failed it once. Also, Ms. Elliott believed it proper to enter the flag because the course work in Algebra I was the same as Algebra I Honors, the only difference being that the latter class would be smaller, have a better teacher, and involve more homework. Ms. Elliott did not consult with her superiors prior to entering this flag, which had the effect of increasing B.H.'s GPA. It is found that Ms. Elliott improperly flagged B.H.'s grade for Algebra I Honors, but that she did so in a good faith, though mistaken, belief that it was proper to do so. As to Student D.H., Ms. Halbuer testified that she personally compiled and reviewed D.H.'s student records and found that Ms. Elliott entered an improper flag for D.H.'s "D" and "C" grades in Algebra II Honors for the first and second semesters of the 1995-96 school year, though D.H. repeated regular Algebra II. As with Student B.H., D.H. was not entitled to receive grade forgiveness for the grades received in the honors course when the honors course was not retaken. It is found that Ms. Elliott improperly flagged D.H.'s grade for Algebra II Honors, but that she did so in a good faith, though mistaken belief, that it was proper to do so. As to Student L.H., Ms. Halbuer found that Ms. Elliott flagged an "F" grade L.H. received in Algebra I in the second semester of the 1995-96 school year. For this flag to have been appropriate, L.H. would have had to either repeat the second semester of Alegbra I or complete two semesters of Applied Math II. L.H. in fact completed only one semester of Applied Math II. Ms. Halbuer testified that without the two semesters of Applied Math II or a successfully completed second semester of Algebra I, L.H. did not have the requisite math requirements for graduation. L.H. nonetheless was allowed to graduate from Merritt Island in 1998 without ever taking the second semester of Applied Math II, with a transcript certified by Ms. Elliott. Ms. Elliott testified that L.H. had the three math credits required to graduate, and met the graduation requirements that were in place for the class of 1998. It is found that the Department failed to demonstrate that L.H. should not have graduated, but did demonstrate that Ms. Elliott improperly flagged L.H.'s grade for Algebra I and offered no adequate justification for having done so. As to Student J. E.-N., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed the student's records and found that Ms. Elliott entered an improper course flag for an "F" in Classical Literature and an "F" in Applied Math III, both for the first semester of the 1997-98 school year. Ms. Elliott certified J. E.-N. for graduation in 1998. Without the two flags, J. E.-N. would not have had the requisite 2.0 GPA for graduation. Ms. Elliott admitted flagging the Applied Math III grade, but stated that she did so pursuant to a precedent set by Mr. Dugan when he was an assistant principal at Merritt Island. J. E.-N. was a student with very limited proficiency in English. Ms. Elliott testified that Mr. Dugan's practice had been to apply forgiveness for math classes to such students once they had passed the high school competency test in math. J. E.-N. had passed the high school competency test. As to the flag for Classical Literature, Ms. Elliott testified that J. E.-N. took English IV in night school, and that English IV was equivalent to Classical Literature. It is found that Ms. Elliott improperly flagged J. E.-N.'s grade for Applied Math III before consulting with Mr. Dugan or some other superior to ascertain that she was applying a recognized school policy. Ms. Elliott's flag of the Classical Literature class was another example of her belief that "equivalent" courses could count as repeated courses for purposes of flagging, whereas the administrators who testified consistently held that only identical courses could be repeated for forgiveness. As to both flags for J. E.-N., it is found that Ms. Elliott entered them in a good faith, though mistaken, belief that it was proper to do so. As to Student A.L., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed A.L.'s student records and found that Ms. Elliott improperly flagged a tenth-grade Algebra II Honors course prior to A.L.'s completing the same course and receiving a higher grade, which is against their interpretation of district policy. A.L. in fact repeated Algebra II Honors and passed the course in the eleventh grade. The evidence demonstrated that Ms. Elliott flagged the course prior to A.L.'s having successfully completed the retaken course, but that she did so in the good faith belief that it was proper to do so. Student M.M. had completed ninth grade at Jefferson Middle School, then transferred to Merritt Island for tenth grade in the 1998-99 school year and participated in cheerleading. Gary Shiffrin, the principal at Jefferson Middle School, testified that M.M. returned to the middle school during the fall of her tenth grade year and asked Mr. Shiffrin if she could speak to one of her former teachers. After the teacher spoke to M.M., Mr. Shiffrin learned that M.M. had requested the opportunity to make up some work she had missed from the previous semester at Jefferson Middle School. Mr. Shiffrin denied M.M.'s request to make up work in an attempt to receive a higher grade, because "the time element had certainly passed." Because he thought M.M.'s request was "kind of unusual," Mr. Shiffrin contacted Mr. Dugan and informed him of what had taken place. Mr. Dugan investigated the matter and discovered that, on August 13, 1998, Ms. Elliott had entered course flags for two semesters of Spanish I from M.M.'s ninth grade year at Jefferson Middle School. The resulting GPA made M.M. eligible to cheer. On August 21, 1998, Ms. Halbuer pulled and reviewed the records of all of Ms. Elliott's cheerleaders. She concluded that M.M. should not have had course flags on her record. She discussed the flagging issue with Ms. Elliott, as described above. On August 24, 1998, Ms. Elliott removed the flags. Removal of the flags meant that M.M. was no longer eligible to cheer. Her parents sought over $700.00 in reimbursement of cheerleading expenses from Merritt Island as a result of this incident. In the case of M.M., the Department did not offer complete records to indicate whether the student was enrolled in the Spanish courses at the time Ms. Elliott flagged her prior grades. Ms. Elliott contended that her removal of the flags was not an admission of wrongdoing, but an indication of her willingness to accept direction from Ms. Halbuer on the issue of flagging. Without the complete records, it cannot be determined whether Ms. Elliott flagged the grades pursuant to her understanding of the flagging policy, or whether she did so without any justification at all. It is found that the evidence was insufficient to demonstrate that Ms. Elliott violated clear District policy in flagging the grades of M.M. As to Student B.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed B.M.'s student records and discovered that Ms. Elliott had improperly flagged a "D" grade in Algebra II for the second semester of the 1997-98 school year. The flag was entered on August 13, 1998, though B.M. did not enroll for the second semester of Algebra II until February 1999. On February 15, 1999, Ms. Halbuer instructed the data entry clerk to remove the flag, thus reducing B.M.'s GPA. Ms. Elliott testified that B.M. was a learning disabled student whose parents monitored his progress closely to ensure he would be eligible for college. Ms. Elliott met with B.M.'s parents in August 1998, at the start of B.M.'s senior year. The parents were aware of the availability of grade forgiveness, and wanted to make sure Ms. Elliott knew that their son would be repeating both semesters of Algebra II during the 1998-99 school year. Ms. Elliott flagged the second semester of Algebra II with the intent of monitoring B.M.'s progress throughout the year and obtaining tutoring assistance if he encountered difficulty. Ms. Elliott testified that she mistakenly neglected to flag the first semester of Algebra I. Ms. Elliott testified that the flag served to notify colleges that B.M. was repeating the entire year of Algebra II, a sign of maturity in attempting to improve his grades and master the material. Ms. Elliott testified that she did monitor B.M.'s progress until she was forced off the Merritt Island campus. It is found that Ms. Elliott's flagging of B.M.'s second semester Algebra II course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had even enrolled to repeat the class. The distortion of B.M.'s GPA would have endured, not for a few weeks as in most instances of Ms. Elliott's flags, but for the entire 1998-99 school year, had Ms. Halbuer not removed the flag. Ms. Elliott testified that B.M.'s overall GPA was not inflated because there were other repeated classes on his transcript for which he did not receive credit. Ms. Elliott may have been correct on this score, but cannot justify an improper flag by pointing to other flags that should have been but were not entered. Ms. Elliott's testimony as to her salutary reasons for entering the flag is credited, but is insufficient to justify the timing of the flag in this instance. As to Student A.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed A.M.'s student records and found that, on August 26, 1998, Ms. Elliott entered an improper course flag for A.M.'s "D" grade in Algebra I for the first semester of the 1995-96 school year. This flag was entered after Ms. Halbuer's initial August meeting with Ms. Elliott as to the proper flagging procedure. A.M. was enrolled to retake Algebra I at the time of the flag, but had only just commenced the class. A.M.'s grade in the retaken Algebra I was not posted until January 1999. It is found that Ms. Elliott's flagging of A.M.'s first semester Algebra I course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had demonstrated progress sufficient to satisfy Ms. Elliott that she would likely pass the retaken course. As to Student B.W., Ms. Ebersbach and Ms. Halbuer testified that they each personally reviewed B.W.'s student records and discovered that, on September 10, 1998, Ms. Elliott changed B.W.'s letter grade in Integrated Science from a "D" to a "B" for the first semester of the 1998-99 school year. While conceding that her computer code appeared on the grade change, Ms. Elliott flatly denied changing B.W.'s grade. B.W. was not a student assigned to Ms. Elliott, and she had no recollection of him. Her planning book for the relevant date and time indicated that she was not even in the guidance office when the grade change was made. Ms. Elliott theorized that another counselor may have made the change, using her code. Ms. Elliott's denial is credited. Her testimony throughout this proceeding was forthright and honest, even when detrimental to her own case. Aside from the S.H. situation, which she adequately explained, Ms. Elliott was accused of changing a grade only in this one instance out of fifty-six alleged violations of District policy. It is found that the Department failed to demonstrate that Ms. Elliott changed B.W.'s Integrated Science grade. Testimony was also offered as to the following students: J. McD., S. McC., P.L., M.L., S.K., K.L., and a second student with the initials D.H. In the cases of these students, the Department failed to produce records sufficient to permit Ms. Elliott to answer the charges. The Department proffered the transcripts of S.K., K.L., P.L., S. McC., and J. McD. at the hearing as Exhibits 54 through 58. These were not admitted because they had not been provided to Ms. Elliott during the pre-hearing discovery process. It is noted that the failure to provide these transcripts to Ms. Elliott prior to the hearing was not due to any negligence or misfeasance by counsel for the Department. The documents were simply unavailable to the Department before the final hearing began. E. The "vendetta" defense Evidence was presented at the hearing aimed at demonstrating that Mr. Dugan, the principal of Merritt Island, pursued these allegations against Ms. Elliott not on their merits but because he held a longstanding grudge against her. This grudge was alleged to have its origin in Ms. Elliott's testimony in the criminal trial of Doris Roberts, a former teacher charged with committing sexual acts with students at Merritt Island. At the trial, there was some conflict in the testimony as to whether Mr. Dugan, then an assistant principal, had ignored information that should have led him to investigate Ms. Roberts well before her activities were finally exposed and stopped. Ms. Elliott's testimony at the criminal trial is claimed to have contradicted Mr. Dugan's testimony on that point. Ms. Elliott claimed that every school employee whose testimony at the criminal trial contradicted that of Mr. Dugan was subjected to harassment by him, and either retired from the District or transferred away from Merritt Island. Ms. Elliott presented the testimony of two witnesses, Marvin Gaines and Doris Glenn, who Ms. Elliott alleged were victims of Mr. Dugan's vendetta. Their testimony indicated that Mr. Dugan could be a harsh administrator, could be less than straightforward in his dealings with employees, and engaged in juvenile and unprofessional name-calling when displeased with subordinates. Ms. Glenn, a retired assistant principal with 33 years of experience at Merritt Island, made it clear that Mr. Dugan tended to be arbitrary. One's relationship with Mr. Dugan "depended on what he had for breakfast." Ms. Glenn went on say, "If you were in, you were in. If you were out, buddy, you were out. I mean solid out." Ms. Glenn testified that she spent a good deal of time in Mr. Dugan's bad graces, and attributed her retirement to the harassment ensuing from her testimony in the Roberts case. Significantly, Ms. Glenn stated that she had never known Mr. Dugan to invent false charges in an effort to harm an employee. Mr. Dugan would go over the work of a disfavored employee with a fine-tooth comb. In her words, "He'd be looking for [something wrong] if you were on his out list. He would be looking for any little flake of dandruff." If Mr. Dugan "got on you," then "you'd better be strong and you'd better be ethical. You better be able to clean your plate up good because if you messed up he'd have your ass." However, Ms. Glenn did not believe that Mr. Dugan would fabricate allegations against an employee. Mr. Gaines, who had 35 years with the District including ten years at Merritt Island, also had a poor relationship with Mr. Dugan. Like Ms. Glenn, Mr. Gaines believed that Mr. Dugan had a "list" of those he disliked. Mr. Gaines described Mr. Dugan as a "very retaliatory person" and a "big liar." However, the animosity in Mr. Gaines' case appeared related less to the Roberts case than to the fact that Mr. Dugan lobbied District administrators to pass over Mr. Gaines for a promotion. In fact, Mr. Gaines described his relationship with Mr. Dugan as "all right for a while" in the immediate aftermath of the Roberts case. While Mr. Gaines believed that Mr. Dugan had lied to him concerning the promotion, he had never known Mr. Dugan to fabricate allegations of wrongdoing. In summary, there was credible evidence that Mr. Dugan was vituperative and would not hesitate to go after a subordinate against whom he held a grudge. Mr. Dugan denied any such grudge against Ms. Elliott. Aside from the investigation itself, Ms. Elliott offered no evidence that Mr. Dugan was pursuing a vendetta against her. To the contrary, she testified that Mr. Dugan had been supportive of the cheerleading team. It is also noted that Mr. Dugan did not initiate the investigation of Ms. Elliott. Ms. Halbuer and Ms. Vann separately approached him with suspicions as to Ms. Elliott's actions. When Ms. Vann discussed her allegations at the principals' meeting, Mr. Dugan was not particularly eager to pursue them. He told Ms. Vann to document her allegations in writing before he would consider them. In any event, an alleged vendetta by Mr. Dugan against Ms. Elliott would have relevance only as a motive for bringing false allegations against her. No evidence was presented that Mr. Dugan ever fabricated evidence against any employee, including Ms. Elliott. The alleged grudge may have spurred Mr. Dugan to investigate the matter more fully. However, his motive is irrelevant because his factual allegations were essentially accurate, even though the conclusions he drew from them were overstated. IV. Summary of Findings Three material allegations of fact were set forth in the Administrative Complaint. The first allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification. It is found that the Department failed to offer clear and convincing evidence that Ms. Elliott improperly attempted to persuade the three faculty members from Cocoa Beach to change the grades of Student S.H. In fact, all three of the faculty members testified that Ms. Elliott did not ask them to change the grades. The second factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent changed the grades of one or more students to a grade higher than that assigned by the instructional staff member. These changes were made without academic or other proper justification. It is found that the Department offered clear and convincing evidence that Ms. Elliott changed the grades of Student S.H. However, the evidence also demonstrated that Ms. Elliott made those changes as a demonstration to S.H. of how she could potentially raise her GPA. Ms. Elliott had no intention of effecting permanent changes to S.H.'s grades, as evidenced by the fact that Ms. Elliott and S.H. acknowledged that S.H. was not eligible for cheerleading during the Fall semester of 1998. The third factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent "flagged" grades of one or more students in such a manner that the grades would not count in the computation of the student(s) grade point average, thereby artificially and improperly raising the grade point average of the student(s). It is found that the Department offered clear and convincing evidence that Ms. Elliott improperly flagged the grades of Students L.H., B.M., and A.M. It is found that the Department did not offer evidence sufficient to demonstrate that Ms. Elliott improperly flagged the grades of Students M.M. and B.W. It is found that the Department offered clear and convincing evidence that Ms. Elliott's flagging of the grades of Students M.P., B.H., D.H., J. E.-N., and A.L. violated the District's Grading Procedures as understood by District administrators. However, it is also found that Ms. Elliott's flagging of these students' grades was consistent with her understanding of the flagging policy and with the manner in which she had flagged grades for several years. It is found that the Department offered clear and convincing evidence that Ms. Elliott obtained Ms. Peters' TERMS access code without fully disclosing the reasons why she could not use her own code, and further that she attempted to access the TERMS program after she had been expressly forbidden to do so by Mr. Dugan. It is found that the Department failed to prove by clear and convincing evidence that Ms. Elliott's motive for flagging grades was to make the subject students eligible to participate in cheerleading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(4)(b) and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3)(a) or (d), or Rule 6B-1.006(5)(h), Florida Administrative Code. It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active guidance counselor in the State of Florida. DONE AND ENTERED this 8th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2003.
The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of December, 2008.
The Issue The issues are whether Respondent is guilty of inappropriate sexual conduct with a female student, so as to constitute gross immorality, in violation of Section 231.2615(1)(c), Florida Statutes; personal conduct that seriously reduces Respondent's effectiveness as an employee of the School Board, in violation of Section 231.2615(1)(f), Florida Statutes; failure to make a reasonable effort to protect a student from conditions harmful to learning or her mental health or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code; intentional exposure of a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code; or exploitation of a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. If guilty of any of these violations, an additional issue is what penalty that Petitioner should impose.
Findings Of Fact Respondent is a certified teacher, holding certificate number 649196. He was first employed by the Miami-Dade School District in January 1989. After working as a substitute teacher, Respondent was hired in a permanent capacity in 1990 or 1991. At the time of the alleged incidents, Respondent was a teacher at Coral Reef Senior High School, where he was the head basketball coach and assigned to teach English classes in the Center for Student Instruction. In the summers of 1998 and 1999, Respondent taught in the Summer Youth Employment Program that took place at Coral Reef. In this program, high-school students from Coral Reef and elsewhere attended classes to develop job skills and received monetary compensation while so enrolled. B. L. was born on November 3, 1982. She graduated from Coral Reef in 2000. During the summers of 1998 and 1999, B. L. took classes at Coral Reef that were sponsored by the Summer Youth Employment Program. The first summer she took a class in business and finance, and the second summer she took a class in legal and public affairs. Respondent was a coinstructor for both classes. During the summer of 1998, B. L., who was not a discipline problem, engaged in an argument with two other classmates, who were sisters. Respondent and his coinstructor intervened before any blows were exchanged. The coinstructor took the sisters and counseled them, and Respondent took B. L. and counseled her. Respondent removed B. L. from the classroom momentarily to talk to her outside of the hearing of her classmates and advise her that he was disappointed in her because she was one of the top-performing students and she should not "lower her standards" to the level of the sisters with whom she had been arguing. Respondent told B. L. that she was a "bright student, . . . articulate," that she was a "beautiful young lady [with] a lot going for her," that she seemed to have come from a "good family" and "had good standards," and that Respondent did not think that she should conduct herself like that in class. In the context in which it was said, "beautiful" refers to the totality of a person, including intelligence, attitude, and personality," and is not an inappropriate focus upon a person's physical appearance. After a couple of minutes of talking to B. L. outside the classroom, Respondent returned her to the classroom. He then spoke to the coinstructor and reported the incident to the counselor who dealt with classroom discipline. Respondent was unaware of what, if any, further action the counselor took against B. L. or the sisters. Respondent's other contact with B. L. was unremarkable that summer. A couple of times, he and the coinstructor cited B. L. for violations of the dress code. Generally, though, he taught her and treated her as he did the other students in his class. The following summer, B. L. signed up for Respondent's legal and public affairs class. Concerned that B. L. would be duplicating some of the material that they had covered the previous summer, Respondent spoke with the job counselor, who worked in his classroom. She and Respondent then advised B. L. to transfer to another class, but B. L. refused to do so. During this summer, B. L. confided in a classmate that she had a crush on Respondent and that her relationship with her current boyfriend was unsatisfactory. Nothing significant occurred during that summer between B. L. and Respondent, who again treated her as he did his other students. Obviously, B. L. has testified differently. She testified that, during the first summer, when Respondent had her out in the hall, he told her that a blue dress that she had worn the prior day had been driving him "crazy." She testified that Respondent asked her if she felt attracted toward him, and she said that she did not. B. L. testified that Respondent concluded the conversation by saying words to the effect, "if you're 'bout it 'bout it, you know where I am." B. L. testified that this meant that if she was serious about getting intimate with Respondent, such as kissing him, he would be available. B. L. testified that this was the only inappropriate conduct the first summer. B. L. testified that the following summer, she and Respondent happened to see each other outside of school at a shopping mall while B. L. was with her boyfriend. She testified that they exchanged brief greetings. B. L. testified that the following week at school Respondent brought up their chance encounter and asked if she recalled their conversation last year. She testified that she answered that she did, and he added, "if you want to talk about it, we can talk about it in a private conversation." B. L. testified that this was the only inappropriate conduct the second summer. B. L. testified that Respondent's conduct made her feel "weird," but she was not scared. She testified that her boyfriend was jealous of Respondent; she testified that he probably thought that she was tempted to engage in an inappropriate relationship with Respondent. She testified that she told her boyfriend of Respondent's advances, and he threatened to tell B. L.'s parents and a school counselor if she did not complain about Respondent. One time, while talking to her boyfriend about this matter on the phone, B. L. began to cry and her parents overheard enough of the conversation to learn of B. L.'s claims against Respondent. Several problems preclude crediting B. L.'s testimony. First, she acknowledged that Respondent and the job counselor advised her to change classes the second summer, but she declined to do so because it was too much trouble. Second, she denied having a crush on Respondent, but she described any attention from him as though it came from a "movie star." There is no doubt that she had a crush on Respondent based on her description of Respondent at the hearing, the testimony of the friend in whom she confided, and the testimony of the job counselor, who added that B. L. was breathless and "lovesick" and that she told B. L. that Respondent was happily married and to "get over it." It is likely that B. L.'s obvious infatuation with Respondent bothered her boyfriend. It is plausible that stories of resisted advances would gain B. L. credibility with her boyfriend, although B. L.'s motivation in fabricating these claims against Respondent necessarily remains unknown. Additionally, B. L.'s demeanor while testifying did not add to her credibility. Frequently, her tone and expression suggested that she felt uncomfortable testifying, but her discomfort was not due to victimization by Respondent. Unable to describe her emotions at the time of these claimed advances, B. L.'s discomfort was more likely attributable, at best, to a feeling that Respondent's inappropriate behavior was too trivial for this much attention or, at worst, to an admission of guilt over fabricating these stories and causing Respondent so much trouble. After considering the above-discussed factors, the latter explanation of B. L.'s tone and demeanor is more likely than the former. In any event, Petitioner has failed to prove that Respondent behaved inappropriately toward B. L. at any time.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. 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 20th day of December, 2002. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316-1924 Leslie A. Meek United Teachers of Dade Law Department 2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137
