The Issue The issues in this matter are as follows: (a) whether Petitioner followed all procedural requirements before deciding to terminate Respondent's employment as a teacher; and whether Petitioner properly determined that Respondent's employment as a teacher should be terminated.
Findings Of Fact In 1985, Respondent received her Florida Teacher Certification, qualifying her to teach elementary education, Grades 1-6. She continues to hold that certification. Respondent worked as a substitute teacher in Petitioner's elementary, middle, and high schools for 13 years before she was hired as a full-time teacher in 1998. Thereafter, Respondent taught the following classes at the following schools: (a) from 1999–2003, “literacy” and language arts to sixth and seventh graders at Paxon Middle School; from 2003-2004, third graders at John E. Ford Elementary; from 2004-2006, first graders at Lake Lucina Elementary (Lake Lucina); (d) from 2006-2007, first graders at Arlington Heights Elementary (Arlington Heights); and (e) from 2007-2008, fourth graders at Sabal Palm Elementary (Sabal Palm). Throughout her tenure as a full-time teacher, school principals evaluated Respondent's performance on an annual basis. During school years 2006-2007 and 2007-2008, Petitioner used the Teacher Assessment System (“TAS”) as the primary method to evaluate Respondent's teaching ability. The TAS measures teaching performance based on nine different “Competencies.” These Competencies, listed in the 2006-2007 and 2007-2008 versions of the TAS include the following: (a) Promotes student growth and performance; (b) Evaluates instructional needs of students; (c) Plans and delivers effective instruction; (d) Shows knowledge of subject matter; (e) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) Shows sensitivity to student needs by maintaining a positive school environment; (g) Communicates with parents; (h) Pursues professional growth; and (i) Demonstrates professional behaviors. Under the TAS, a school administrator (usually the principal) evaluates teachers based on three scheduled classroom observations. During the observations, the principal uses the Teacher Assessment Instrument (“TAI”) to collect data and identify “indicators” associated with each Competency. In evaluating a teacher’s overall performance, principals may also consider informal, unannounced observations. The Classroom Observation Instrument (“COI”) is an earlier version of the TAI. The COI contains the same Competencies as the TAI, though they appear in different order. The “Evaluation of Professional Growth of Teacher” is a summative evaluation form used during the final annual evaluation conference. The form reflects the teacher’s final rating as to each Competency and the principal’s overall performance rating for the school year. The TAS procedures provide as follows in pertinent part: TAS Procedures-Principal/Supervisor PLEASE NOTE: One purpose of the TAS is to assist the employee to improve performance. Performance problems are best addressed early. If an informal observation or classroom visit indicates possible performance problems then the principal should immediately arrange to initiate a formal classroom observation using the TAI. Conduct an initial orientation for all instructional employees to be evaluated by the TAS. This should occur during pre- planning and include at minimum, 1) an overview of the forms and procedures, 2) a description of the competencies and their indicators, and 3) your schedule for observation activities. Pre-arrange with the employee at least one instructional session to be formally observed. Conduct a pre-observation conference with the employee. Discuss with the employee information regarding the lesson plan, targeted students and methodology. A pre-observation conference must occur. Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. Within five (5) working days, schedule and conduct a post-observation conference with the employee to provide feedback. During the post-observation conference, review the TAI with the employee. Identify any problematic areas. At this time, schedule a conference to develop a success plan for employees who potentially may receive an overall unsatisfactory evaluation. This action must take place within two (2) weeks of the post conference but prior to February 1. During this time, a letter of Potential Unsatisfactory Evaluation must be given to the employee. Close the conference by signing all appropriate documents and securing the employee's signature of receipt. Follow the time line provided in the manual to ensure compliance with the reappointment process and to ensure due process for the employee. If a teacher demonstrates deficient performance under any Competency, a "Success Plan" is written in collaboration with the teacher. The Success Plan identifies areas of weakness by Competency, sets out objectives, and provides timelines to meet the objectives. A Success Plan Team includes the teacher, school administrators, colleagues that have expertise in the relevant subject matter, “resource” teachers or “coaches,” and, at times, a teachers’ union representative. According to the TAS, personnel decisions will be appropriate if the timeline and the following steps are followed: Notify the employee in clear and simple written communication(s) regarding your specific performance expectation as identified by the competency indicators on the TAI. Explain to the employee in oral and written detail the deficiency(ies) from the previously stated expectation(s). (Be specific by noting the time factors, place, circumstances, principal observations). Arrange with and/or for the employee to receive appropriate training or other assistance as needed in order to improve the deficiency(ies) noted on the TAS Success Plan. Record in writing any offers of help. Time any communication(s) to the employee so there is sufficient opportunity for the employee to correct deficiencies. The Success Plan Team (including the identified employee) must meet frequently to review the status of the implementation of the plan and the employee’s progress. While teaching first graders at Lake Lucina, Respondent elected to transfer to Arlington Heights in school year 2006-2007. Robert L. Snyder was, and still is, the principal of Arlington Heights. Upon meeting Respondent, Mr. Snyder considered Respondent as a pleasant and likeable person. However, because Respondent received an unsatisfactory evaluation the prior year, Mr. Snyder arranged for the development of a Success Plan for Respondent. With Respondent's input, the Success Plan Team drafted a Success Plan to be implemented at Arlington Heights. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. It was finalized and signed by Ms. Hunt in October 2006. The Success Plan Team included experienced teaching coaches. The coaches modeled instruction in Respondent's class on several occasions. Mr. Snyder conducted three formal observations and observed Respondent’s teaching performance informally on several occasions. During his visits to the classroom, Mr. Snyder would see students doing worksheets amounting to “busy work” which had no apparent connection to instruction or evaluation. Mr. Snyder kept personal notes documenting Respondent's tardiness to school on several occasions. He also noted her tardiness to workshops and in-service programs, including an in-service program focused on a reading assessment system for first graders known as Developmental Reading Assessment (DRA). On or about January 30, 2008, Mr. Snyder intended to deliver a letter to Respondent, advising her that she was at risk to receive an unsatisfactory evaluation for the year. When he went to Respondent's classroom, Mr. Snyder discovered that Petitioner was absent and had left no plans for the substitute teacher. The school policy required teachers to have three days of substitute plans in case of an unexpected absence. While Mr. Snyder assisted in the development of plans for the substitute teacher, he observed incomplete and blank DRA data collection forms. The forms did not indicate the students' levels of reading ability or the strategies put in place to enhance areas of weakness. Mr. Snyder also observed the teaching assistant doing work which should have been done by Respondent, such as grading papers. When Respondent submitted her lesson plans to Mr. Snyder, he observed that Respondent was not actually teaching the lesson plans to her class. Mr. Snyder also noted a lack of grades in Respondent's grade book. Mr. Snyder brought these concerns to Respondent's attention verbally and in writing. Throughout the school year, Respondent had a full-time paraprofessional/teacher’s assistant (“TA”) in her classroom. Mr. Snyder observed tensions between Respondent and her TA, as well as a second TA. The working relationship between Respondent and her TA deteriorated through the year. On one occasion, Respondent left her class of first graders completely unattended by an adult for twenty minutes. Mr. Snyder knew Respondent was in the office working on the computer when he saw Respondent's unsupervised students. On another occasion, Mr. Snyder saw Respondent who appeared to be videotaping students in a common hallway. The school did not have parental permission to videotape some of the students in another teacher's class. Mr. Snyder retrieved the videotape and discarded it. Respondent did not attend certain conferences with Mr. Snyder (including at least one formal pre-observation conference). Additionally, it was difficult to conduct meetings with the Success Plan Team because Respondent always insisted that an outside union representative instead of the building representative attend the meetings with her. Scheduled meetings with Respondent were delayed or cancelled on a number of occasions because an outside union representative was not available. Mr. Snyder formally observed Respondent and completed TIAs on December 15, 2006, February 6, 2007 and March 14, 2007. Mr. Snyder had a conference with Respondent before and after each formal observation to discuss the TIAs. Respondent signed each TIA. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 15, 2007. Reflecting the findings on the TIAs, the annual evaluation showed unsatisfactory performance in the following Competencies: Promoting Student Growth and Performance; Planning and Delivering Effective Instruction; and Demonstrates Professional Behaviors. The evaluation also showed a “Needs Improvement” rating in the following Competencies: Evaluates Instructional Needs of Students; Utilizes Appropriate Classroom Management; and Parent Communications. Respondent received and signed the annual evaluation. In school year 2007-2008, Respondent elected to transfer to Sabal Palm. At the new school, Respondent taught reading, writing and science to a fourth-grade class. Respondent's co-teacher, Kim Stancil, taught math and social studies. There were approximately 26 students in the class. The principal at Sabal Palm was, and still is, Mary Mickel. Because Respondent received an unsatisfactory evaluation the prior year, Ms. Mickel initiated a Success Plan for Respondent. Respondent signed a final copy of the plan on December 11, 2007. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. The Success Plan Team consisted of Ms. Mickel, other teachers, a “standards coach," and a “reading coach.” Ms. Stancil retired on October 29, 2007. A new co- teacher, Christie Callison, began teaching in January 2008. Ms. Mickel became concerned when Respondent failed to attend grade-level meetings. After receiving encouragement from Ms. Mickel, Respondent began attending the meetings but did not actively participate. Ms. Mickel had several parents call to complain about how Respondent treated their children or how their children were doing in Respondent's class. Ms. Mickel participated in at least one parent/teacher conference to resolve a parent's concerns. Ms. Mickel visited Respondent's classroom from time to time throughout the school year. Ms. Mickel conducted four formal evaluations of Respondent's performance. The formal observations took place on the following dates: September 13, 2007; November 19, 2007; January 28, 2008; and March 5, 2008. Ms. Mickel provided Respondent with advanced notice of the formal observations. Ms. Mickel had a conference with Ms. Hunt before and after the observations. During the formal observations, Ms. Mickel used the COI instrument to document indicators of performance under the nine Competencies. Respondent does not challenge Ms. Mickel's use of the COIs versus the TIAs. Ms. Mickel observed Respondent using materials and teaching subjects that were not age-appropriate for fourth graders. For instance, Respondent based a lesson on a book typically used with 1st graders. Ms. Mickel discussed this with Respondent and commented on the subject in the COIs. As time passed, Ms. Mickel observed Respondent's continued failure to properly assess student performance and failure to tailor instruction to student needs. Respondent had opportunities to participate in grade- level training on a weekly basis. She was allowed to observe other teachers in her school without having to take personal time. Respondent's coaches came into her class, prepared a lesson plan with her, and modeled the instruction. According to Ms. Callison, Respondent refused to collaborate with planning and instruction. Respondent did not want, give or receive assistance from her co-teacher. Respondent typically did not provide direct instruction to the students. Instead, Respondent gave the students “busy work” via worksheets that had nothing to do with the required curriculum. Respondent openly classified students by ability, using terms such as “middle group” and “low group.” Respondent would then have students grade each others’ papers and report the grades out loud to Respondent in class. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 14, 2008. Reflecting the findings on the COIs, the annual evaluation showed unsatisfactory performance under the following Competencies: Evaluates Instructional Needs of Students and Plans and Delivers Effective Instruction. Respondent obtained a “Needs Improvement” rating in the following Competencies: Promotes Student Growth and Performance; Communicates with Parents; and Demonstrates Professional Behaviors. Respondent received and signed the annual evaluation. Respondent testified that teaching fourth grade is particularly challenging compared to teaching other grade levels. According to Respondent, fourth-grade is difficult to teach because students must take the Florida Comprehensive Assessment Test (FCAT) in math, reading and writing. Although Respondent was without a co-teacher for a portion of the 2007-2008 school term, she is certified to teach all fourth-grade subjects. More importantly, Respondent has had experience teaching reading and writing to sixth and seventh- grade students, some of whom were working at the fourth-grade level. Respondent worked with and was evaluated by seven different principals throughout the last eight years of her employment. During those eight years, Respondent's summative evaluations showed her performance as follows: (a) eight consecutive years with unsatisfactory performance in the Parent Communication Competency; (b) five consecutive years with unsatisfactory performance in the Student Growth and Performance Competency; (c) five consecutive years with unsatisfactory performance in the Planning and Delivery of Instruction Competency; (d) four consecutive years with unsatisfactory performance in the Evaluation of Student Needs Competency.
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Professional Education Subtest (hereinafter referred to as the "Subtest") of the Florida Teacher Certification Examination tests the examinees' mastery and knowledge of general teaching methods and strategies. It is offered four times a year. The Subtest consists of approximately 130 to 135 multiple choice questions (each with four choices from which the examinees must choose the correct answer). The questions are printed in a question booklet. There is a separate answer sheet on which examinees record their answers to these questions by blackening, with a pencil, the appropriate bubble. Examinees are given two and a half hours to complete the Subtest. The Subtest is a criterion referenced test as opposed to a norm referenced test. To pass the Subtest, an examinee must attain a scaled score of 200. The Subtest is administered by the Office of Instructional Resources of the University of Florida (hereinafter referred to as "OIR") pursuant to a contract that OIR has with the Department. Dr. Sue Legg is the head of OIR. Pat Dovall is one of her assistants. Among OIR's responsibilities is the development, in cooperation with the Department, of a Test Administration Manual for the Subtest (hereinafter referred to as the "Manual") to guide and assist test site administrators, test room supervisors and test room proctors in discharging their duties at the test administration sites. The Manual developed by OIR provides that the following procedures should be followed in the seating of examinees: 3. Procedures for Seating of Examinees Seat examinees in the same seat they used for the morning session. For retake candidates testing only in the afternoon, follow the procedures below. Place a test book receipt card on each desk where an examinee will sit. Be certain you and your assistants have unimpeded access to every examinee. Assign examinee to a specific row or column of chairs. DO NOT ALLOW EXAMINEES TO SELECT THEIR OWN SEATING POSITIONS. Arrange seating in a manner which will separate those who are obviously acquainted. Seat examinees so they cannot see their neighbors' responses or exchange information. Fill in appropriate chairs in each row or column in order to expedite distribution and collection of test materials. Place left handed examinees in a separate row or in the last seat or each row of right-handed examinees. If use of chairs with right-handed tablet arms cannot be avoided, seat left-handed examinees with vacant chairs to their left for use as writing surfaces. If an examinee objects to his seating assign- ment, the room supervisor should make every attempt to work out a satisfactory solution. If this is not possible, the center supervisor should discuss the problem with the examinee. 4. Seating Arrangements Level Seating Arrangements: Seat examinees directly behind one another, facing in the same direction. Maintain a three-foot separation. Inclined Seating Arrangements: Maintain a three-foot separation front and rear and side-to-side. With respect to the subject of "individual examinee irregularities," the Manual states the following: Report on the Irregularity Report name social security number test name time by reset watch Misconduct Defined as any of the following: creating a disturbance; giving or receiving help; using notes, books, calculators; removing test materials or notes from the testing room; attempting to take a test for someone else. ANY EXAMINEE MAY BE DISMISSED WHO IS ENGAGING IN ANY MISCONDUCT AS DEFINED ABOVE: Two witnesses (or more) must observe the misconduct. The test center supervisor or room supervisor must be one of the witnesses. A full written report, signed by all witnesses, must be sent to OIR immediately. Cheating Defined as an examinee giving or receiving assistance during a testing period. Dismiss examinee from the testing areas if either of the above occurs. Examinee may not return. Dismiss examinee who repeatedly, after warning, continues to work on a test after time has elapsed. Dismiss examinee who uses prohibited aids. Include the following on the Irregularity Report: Examinee's identification Type of "cheating" and details of activity Warnings given Time on the reset watch Test section Degree of certainty Name of persons confirming the information Information given to the examinee at the time of the incident Attach examinee's answer folder to the Irregularity Report and return to OIR. Suspected Cheating Record name of examinee suspected. Record name of persons from whom you suspect the examinee was copying. Warn the examinee that you suspect cheating. Move examinee to provide further separation. Disturbances Defined as behavior of examinee during testing that disturbs others; loud noises or other conditions that lead to complaints by the examinees. Individual disruptive behavior Warn examinee that dismissal will result if behavior continues. Report the incident on the Irregularity Report. Outside disturbance Stop test. Have examinees close test books with answer folders inserted. Note time on the reset watch. Adjust time when test is resumed to ensure a full test period. OIR is also responsible for the selection of test administration sites, subject to the approval of the Department. The North Campus of Broward Community College (hereinafter referred to as "BCC") was selected by OIR and approved by the Department as one of the test administration sites for the August 5, 1995, Subtest. For the August 5, 1995, Subtest at BCC, Dotlyn Lowe was the OIR- slected test site administrator, Greta Jackson was the test room supervisor, and Consuelo Johnson and Marcia Cadogan were the test room proctors. Each had served in similar capacities for prior examinations and, having previously reviewed the Manual, 2/ each was aware of its contents at the time of the administration of the August 5, 1995, Subtest. The August 5, 1995, Subtest at BCC was administered in a classroom which had approximately 50 seats arranged in eight or nine rows. Each seat had a right-handed tablet arm for use as a writing surface. Petitioner was one of the approximately 35 examinees who took the August 5, 1995, Subtest at BCC. He sat in the last occupied row of seats (in Seat Number 42). 3/ Seated immediately to his left, approximately two to two and half feet away (in Seat Number 41), was another examinee, George Sauers. On various occasions during the Subtest, Petitioner looked at Sauers' answer sheet to see Sauers' answers. 4/ Jackson, Johnson and Cadogan all witnessed Petitioner engage in such conduct. Jackson first noticed such conduct approximately an hour after the Subtest had begun. From her vantage point, she saw that Petitioner, instead of facing straight ahead toward the front of the room, was sitting with his body angled to the left in a position that enabled him to look at Sauers' answer sheet and see Sauers' answers without having to turn his head. 5/ Petitioner's left leg was crossed over his right leg and his left ankle was resting on his right knee. Petitioner had placed his question booklet on his left knee, but he was not looking at the booklet. Rather, his eyes were focused on Sauers' answer sheet. Jackson continued to watch Petitioner for another ten to twenty minutes from various parts of the classroom. During that time, she observed him repeatedly shift his eyes toward Sauers' answer sheet and then mark answers on his own answer sheet. Jackson then asked the two test room proctors, Johnson and Cadogan, to observe Petitioner. Johnson and Cadogan complied with Jackson's request. For the next fifteen to twenty minutes Johnson and Cadogan watched Petitioner and saw him engage in the same conduct that Jackson had observed. They then reported their observations to Jackson. Jackson thereupon consulted the Manual, specifically that portion dealing with the subject of "individual examinee irregularities," to determine what action she should take. Although she was certain that Petitioner had copied answers from Sauers' answer sheet, she was uncertain as to whether the provisions of the Manual relating to "cheating" or those relating to "suspected cheating" applied to such conduct. It was Jackson's understanding that an examinee who copied answers from another examinee's answer sheet was guilty of "cheating," as opposed to "suspected cheating," as those terms were used in the Manual, only if the "copying" examinee was knowingly helped by the examinee from whom he had copied, which did not appear to be the situation in Petitioner's case. Jackson, however, was not sure that this interpretation of the Manual was correct. She therefore dispatched Cadogan to seek guidance from Lowe, the test site administrator. Lowe sent her assistant, Jacqueline Edwards, to speak with Jackson. Edwards and Jackson determined that the provisions of the Manual relating to "suspected cheating" should be followed in dealing with Petitioner's conduct. Petitioner therefore was not removed from the test site. Rather, after being told that he was suspected of cheating, he was asked to change his seat (which he did without any argument) and allowed to remain in the classroom to finish the Subtest. In his new seat, Petitioner sat facing forward and had his test materials in front of him. He made no apparent effort to look at any of his new neighbors' answer sheets. Petitioner handed in his answer sheet before the expiration of the two and a half hours the examinees were given to finish the Subtest. Later that same day, following the administration of the Subtest, Jackson prepared and submitted a written irregularity report concerning Petitioner's "suspected cheating." 6/ Subsequently, on August 10, 1995, and again on August 28, 1995, Jackson sent memoranda to OIR accurately describing the incident. The memoranda were signed not only by Jackson, but also by Johnson and Cadogan, who did so to indicate that the information contained in the memoranda was accurate to the best of their knowledge. The August 28, 1995, memorandum was the most detailed of Jackson's three written statements 7/ concerning the incident. It read as follows: On Saturday, August 5, 1995, during the Professional Education Examination, I observed Mr. Lamothe looking at another examinee's (George Sauers) answer sheet. I observed Mr. Lamothe at his desk with one leg [a]cross the other and his test booklet approxi- mately 1 ft. away from him, resting on his crossed leg. However, Mr. Lamothe's pupils were in the extreme left corner of his eyes, looking onto Mr. Sauers' desk. Mr. Lamothe would then look up and once looked directly at me, pause as though he was thinking and then marked an answer on his answer sheet. I observed this incident, within an hour of the test, over a period of 15-20 minutes[.] I then asked the proctors (Consuelo Johnson and Marcia Cadogan) to also watch the examinee. After approximately 15-20 minutes, the proctors confirmed that they also observed Mr. Lamothe cheating. I sent Ms. Cadogan to the Test Center Supervisor, Dotlyn Lowe, for advice. Mr. Lamothe was not dismissed from test room, due to our interpretation of the Test Manual instructions on page 14, number 3 (that defines cheating as giving or receiving assistance, which was not the case). Therefore, we preceded as per the Test Manual instructions on page 15, number 4. I then informed Mr. Lamothe that he was observed/suspected of cheating and asked him to change his seat. Mr. Lamothe got his belongings together and moved to the front of the room. Mr. Lamothe finished his exam without further incident. Mr. Lamothe was sitting in the back of the room in Seat Number 42 and Mr. Sauers was sitting to Mr. Lamothe's left in Seat Number 41. Petitioner's scaled score on the August 5, 1995, Subtest was 215. Sauers scored a 229. The mean scaled score of the 2478 examinees taking the August 5, 1995, Subtest at all locations was 215.32. Of these 2478 examinees, 94.2 percent received a passing scaled score of 200 or above. 8/ 33. After reviewing Jackson's August 5, 1995, irregularity report and her August 10, 1995, and August 28, 1995, memoranda, 9/ Dr. Loewe consulted with his supervisor, Dr. Thomas Fisher. Dr. Loewe and Dr. Fisher determined, based on the information provided in these documents, that Petitioner's score on the August 5, 1995, Subtest should be invalidated. By letter dated September 18, 1995, Dr. Loewe informed Petitioner of this determination. The letter read as follows: This letter is in reference to your score on the August 5, 1995 Florida Teacher Certification Examination Professional Education test adminis- tration. At that administration test proctors witnessed you repeatedly looking at the answer document of another examinee. This constitutes cheating. As a result your score will not count and no score report will be mailed. 10/ If you dispute the material facts on which this decision is based, you may request a formal hearing by submitting a written request within 20 days of the date of this letter to: Dr. Thomas Fisher Administrator, Student Assessment Services Suite 701, Florida Education Center Florida Department of Educatio Tallahassee, Florida 32399 Failure to timely request a hearing constitutes waiver of administrative proceedings, subject only to judicial review pursuant to Section 120.68, Florida Statutes. If you wish to complete the teacher certification testing requirements you will need to register for and retake the Professional Education test at a scheduled administration. In response to Dr. Loewe's letter, Petitioner wrote the following letter, dated to September 28, 1995, to Dr. Fisher: This letter is in response to the memo that was sent to me on Septemb[er] 18, 1995 in regard to looking at the answer sheet of another examinee. I am appalled by these allegations. I spent several months studying for this exam and did not expect a response such as this (only a positive one). I am most definitely disputing these allegations. I request a formal hearing as soon as possible. Please send me further information on a time and place so I will be able to resolve this issue. A comparison of Petitioner's answers with those given by Sauers and the other examinees who took the August 5, 1995, Subtest lends further support to the conclusion that Petitioner cheated on the examination, as alleged in Dr. Loewe's September 18, 1995, letter to Petitioner. Petitioner answered 37 of the 132 questions on the August 5, 1995, Subtest incorrectly. Sauers answered 23 of the 132 questions incorrectly. Twenty-one of the questions Petitioner answered incorrectly, Sauers also answered incorrectly. Petitioner and Sauers chose the identical incorrect response on 16 of the 21 questions they both answered incorrectly. This exceeds what would be expected based on random chance. On 11 of these 16 questions where Petitioner and Sauers selected the same incorrect answer, their answer was different than the answer most of the examinees selected. This is highly unusual. For example, on Question 71, 77 percent of the 2478 examinees chose "C," which was the correct answer. Petitioner and Sauers both selected "A," a choice made by only 5 percent of the 2478 examinees. Petitioner took the Subtest again, for the fifth time, on October 28, 1995. In addition to having taken the Subtest in August of 1995, he had also previously taken the Subtest in April of 1994, August of 1994, and April of 1995. On the April, 1994; August, 1994; and April, 1995 Subtests he had received failing scaled scores of 192, 199 and 194, respectively. On the October 28, 1995, Subtest, Petitioner received a failing scaled score of 198. The mean scaled score of the 1744 examinees taking the October 28, 1995, Subtest at all locations was 213.11. Of these 1744 examinees, 95.4 percent received a passing scaled score of 200 or above. Petitioner was among the 81 examinees who took the Subtest on both August 5, 1995, and October 28, 1995. Of these 81 examinees, 67 scored higher on the October 28, 1995, Subtest than they did on the August 5, 1995, Subtest. Such an increase is typical. Nine of the 81 examinees scored lower on the October 28, 1995, Subtest than they did on the August 5, 1995, Subtest. Of these nine examinees, four scored one point lower, one scored three points lower, two scored four points lower and one scored six points lower. Petitioner was the other examinee who scored lower on the October 28, 1995, Subtest. His scaled score on the October 28, 1995, Subtest was 17 points lower than his scaled score on the August 5, 1995, Subtest. Such a significant decrease in scoring is consistent with his having cheated on the August 5, 1995, Subtest. Because Petitioner cheated on the August 5, 1995, Subtest by copying answers from Sauers' answer sheet, his score on that examination cannot be considered a reliable and accurate indicator of the extent of his mastery and knowledge of the general teaching methods and strategies covered on the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Education enter a final order invalidating the score that Petitioner attained on the August 5, 1995, Subtest because he cheated on the examination by copying answers from the answer sheet of another examinee. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1996.
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is an applicant for a Florida Educator's Certificate. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question. In advance of the Test, Petitioner was informed in writing of, among other things, the following: In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . . Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . . Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: * * * c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. * * * Section 2: Prohibited Aids The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . . * * * Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat." After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.). Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look." Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well." Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point, Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it." Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3 Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4 Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that Ms. Lorenzo had confiscated from Petitioner's left hand. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6 As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam." Ms. Lorenzo responded that Petitioner's "test [was] over for today." After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on." As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room). On April 26, 2004, the Department sent the following letter to Petitioner: This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following: "Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. Section 2: Prohibited Aids The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the math subtests of the General Knowledge Test." As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision. This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . . If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows: I have received your letter about the problem I had the day of test. I'm so sorry about the day. In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room." This denial of Petitioner's application for certification is the subject of the instant proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 30th day of August, 2005.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue Whether Petitioner's application for a Florida Educator's Certificate should be granted or denied for the reasons set forth in the Notice of Reasons issued by Respondent on December 13, 2010.
Findings Of Fact Based on the evidence presented at hearing, the following Findings of Fact are made: Ms. Cappi Cay Arroyo1/ was born in Boulder, Colorado, on September 16, 1964. On or about August 22, 1986, Ms. Arroyo knowingly and intentionally distributed cocaine to another person, knowing that what was distributed was cocaine or some other prohibited drug. From 1984 until in or about December 1986, she willfully and knowingly entered into an agreement to accomplish the illegal objective of the distribution of cocaine, with the intent to commit the offense of distribution of cocaine. Ms. Arroyo pled guilty pursuant to a plea agreement and was convicted of the offenses of distributing cocaine under 21 U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine under 21 U.S.C. § 846 in the United States District Court for the District of Hawaii. Ms. Arroyo committed acts involving moral turpitude. On January 28, 1988, Ms. Arroyo was sentenced to two years imprisonment with a Special Parole Term of three years, with the execution of the sentence suspended and Ms. Arroyo placed on probation for a period of five years, on the condition that she pay a fine of $500.00 and serve 100 hours of community service. On April 3, 1991, Ms. Arroyo was discharged from probation. Ms. Arroyo later returned to Colorado. She attended Colorado Christian University and received her Bachelor's Degree in Computer Information Systems in 2002. She began working at Grand Junction High School in 2005 as a Library Media Specialist, where she worked until 2010. She received her Master's Degree in Educational Media in 2006 from the University of Northern Colorado. She received an Outstanding Educator for 2007 award given by the Grand Junction Area Chamber of Commerce, and was selected as the Outstanding Teacher by the students of the Class of 2009. The Ethics in Education Act, creating section 1012.315, Florida Statutes, and adding the phrase "as defined by rule of the State Board of Education" to section 1012.795(1)(d), became effective on July 1, 2008. On June 3, 2010, Ms. Arroyo submitted an on-line application for a Florida Educator's Certificate as an Educational Media Specialist. On the application, she provided her social security number and answered "Yes" to a question asking if she had ever been convicted of a criminal offense. She filled in the "Charges" block with the words "Drug Charges" and the "Disposition" block with the word "Probation." By June 9, 2010, the Bureau of Educator's Certification had received the application, the evidence of her bachelor's degree, the grades transcript, and the fee. Ms. Arroyo meets the basic requirements for licensure. She was at least 18 years of age at the time of her application; she submitted an electronically authenticated affidavit that stated she would uphold the principles incorporated in the Constitution of the United States and the Constitution of the State of Florida and that the information provided in her application was true, accurate, and complete; she documented her receipt of a bachelor's degree from an accredited institution and a master's degree; she submitted to background screening; she is of good moral character; she is competent and capable of performing the duties, functions, and responsibilities of an educator; she holds a valid professional standard teaching certificate issued by the State of Colorado, demonstrating her mastery of general knowledge, mastery of subject area knowledge, and mastery of professional preparation and education competence. The Department of Education is the state agency responsible for licensure of instructional personnel for the public schools. On or about July 7, 2010, the Bureau of Educator Certification of the Department of Education issued Ms. Arroyo an Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that she was eligible for a three-year nonrenewable Temporary Certificate upon receipt by the Bureau of: 1) documentation showing verification of employment; 2) a request for issuance of certificate on the appropriate certification form from a Florida public school; and 3) results of her fingerprint processing, noting that if there was a criminal offense, her file would be referred to Professional Practices Services for further review and that issuance of her Temporary Certificate would be contingent on the results of that review. The Statement included some additional requirements for the issuance of a Florida Educator's Certificate valid for five years covering Educational Media Specialist (Prekindergarten- Grade 12). Mr. Troy Sanford, the principal at Horizon Academy at Marion Oaks, a school in the Marion County School District, interviewed Ms. Arroyo for a media specialist position at the school in August of 2010. At the end of that interview, she began to tell Mr. Sanford of her conviction, but he stopped her and told her that it was the Human Resources Department that checked into applicant's backgrounds. When Mr. Sanford later talked to the Human Resources Department, he advised them that he was recommending someone for the position who had indicated she had something in her background, and asked to be told if it would hinder her appointment. The Human Resources Department had further conversations with Mr. Sanford, telling him about a criminal conviction, but stating that because it had occurred over ten years ago, it should not be a limiting factor. Ms. Arroyo was hired at Horizon Academy and worked there during the 2010-2011 and 2011-2012 academic years as a library media specialist. Ms. Arroyo has excellent knowledge of her subject area and exhibits great enthusiasm in encouraging students to become life-long readers. Ms. Arroyo has effectively become a "co-teacher" with many of the classroom teachers and has helped them craft research projects that are meaningful to students. Horizon Academy has a high percentage of minority students, some of whom are underprivileged. Ms. Arroyo has made special efforts to get books into the hands of students who have never read a book before. She has created a culture of reading at Horizon Academy. Her efforts at her school have caused the library circulation to dramatically increase, which has had an effect on the district-wide data. Ms. Arroyo re-arranged the library to accommodate more students. Ms. Arroyo was selected as the Horizon Academy teacher of the year. Ms. Arroyo became a member of the Library of Congress Teaching with Primary Sources Mentor Program, one of only 19 educators from across the United States with such membership. Ms. Arroyo has helped children with lost or overdue books who are not permitted to withdraw books from the library by loaning them her personal books. She has purchased books from the Book Fair and given them to underprivileged students. She has given Christmas gifts to needy children who might otherwise not receive any gifts. When Ms. Arroyo came to Horizon Academy, it was a "C" school, but it is now an "A" school. The principal believes that there was a direct link between Ms. Arroyo's efforts and the improvement of the school. On October 13, 2010, the Department of Education received background check information on Ms. Arroyo from the Federal Bureau of Investigation and the Florida Department of Law Enforcement. On October 19, 2010, Ms. Arroyo's file was referred to the Bureau of Professional Practice Services for consideration of the background information regarding her conviction. On October 22, 2010, Ms. Arroyo was sent a letter from Ms. Ellie Evans, Applicant Investigator of the Bureau, advising Ms. Arroyo that her application had been referred to the Bureau of Professional Practices Services because of her criminal history, and requesting further information regarding Ms. Arroyo's conviction. On November 16, 2010, the Department received from Ms. Arroyo copies of a judgment in her criminal case, United States v. Cappi C. Eminger, Case No. CR87-01061-03, from the United States District Court for the District of Hawaii, dated January 28, 1988, consisting of three pages, and including an Order Terminating Probation Prior to Original Expiration Date in the same case filed April 8, 1991, consisting of one page. On December 13, 2010, Commissioner of Education Eric Smith sent Ms. Arroyo a letter advising her that her application for a Florida Educator's Certificate was denied, attaching a Notice of Reasons, and advising her of her right to a hearing on the intended action. Ms. Arroyo requested a formal hearing. Ms. Arroyo will be unable to pursue a career teaching students in Florida without educator certification. Ms. Arroyo is substantially affected by the intended decision to deny her certification. On or about March 23, 2011, the Bureau issued Ms. Arroyo a second Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that her Colorado Teaching Certificate had been received and that she was eligible for a Florida Educator's Certificate valid for five years upon receipt of clearance to issue the certificate from the Bureau of Professional Practices Services. On or about June 8, 2011, Ms. Arroyo applied to the Florida Office of Executive Clemency for a pardon of her convictions. Ms. Arroyo also applied to the President of the United States for a pardon. On October 28, 2011, the Department received from Petitioner a notice of intent to rely on the default license provision in section 120.60(1), Florida Statutes. Although the charges of statutory violations drafted by Respondent as grounds for the denial of her application could have been crafted with more care, Petitioner was not prejudiced in preparing her defense. Hearing was held on December 6, 2011. At hearing, Petitioner testified that she did not distribute cocaine and that she did not conspire to distribute cocaine, maintaining that her guilty plea was the result of coercion and intimidation by Drug Enforcement Administration (DEA) agents. Her testimony on these points was not credible. She testified that the DEA agents took her vehicle and showed up at her house with guns. She testified that there were 33 charges in the indictment. She testified that she told the DEA agents that it was her ex-boyfriend who had distributed cocaine. She said that the DEA agents told her that she was guilty simply because she was aware of what he did, even if she did not distribute cocaine herself. Petitioner testified that she could not remember whether her attorney advised her about entering into the plea agreement. At another point in her testimony she testified that her attorney did not advise her as to the guilty plea. She was somewhat evasive during cross-examination as to her appearance before the judge when pleading guilty. She later said that she did not remember that appearance at all. She testified she did not remember the judge asking her if she knowingly and intentionally distributed 55.2 grams of cocaine. Petitioner did testify that she believed what the DEA agents had told her and signed a plea agreement that she was guilty of 2 of the 33 charges, based only upon this mistaken belief. Ms. Arroyo's testimony and selective memories about these long-ago events seemed to be shaped more by convenience than candor. Ms. Arroyo failed to prove her guilty plea resulted from threats, coercion, or fraudulent means. Despite the fact that Ms. Arroyo distributed cocaine and conspired to distribute cocaine and her selective memories and lack of credibility concerning those events, she is of good moral character. A few isolated events are not determinative of her character today. Ms. Arroyo's actions since her youthful criminal activity show a consistent pattern of personal accomplishment and public service over a very long period of time, with no evidence of any other criminal activity. Ms. Arroyo has substantially rehabilitated herself. Her receipt of several education awards demonstrates that she is a dedicated and accomplished professional. Testimony at hearing established that Ms. Arroyo exhibits a compassionate and generous attitude toward students, especially the underprivileged. On January 3, 2012, Respondent filed certified copies of records of the United States District Court for the District of Hawaii, including sentencing minutes, the indictment, a superseding indictment, sentencing memorandum, and other documents, requesting their official recognition and admission as a late-filed exhibit. The State Board of Education has not defined the term "gross immorality" by rule, and there was no evidence presented that Ms. Arroyo's behavior met any rule definition of that term.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a Florida Educator's Certificate, without prejudice to her reapplication should she later become eligible. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 May, 2012.
The Issue Whether Petitioner, Manatee County School Board (School Board), established "“just cause”" in order to take disciplinary action against Respondent, Sharon Harrison (Ms. Harrison); and if so, what is the appropriate penalty.
Findings Of Fact Ms. Harrison has been a special education teacher in the School District since August 1992. She has a college education in the field of Special Education, and specialized training for teaching children with varying exceptionalities. The term varying exceptionalities means that a class is composed of students of varying disabilities. For example, a class may include students with autism combined with students who have a learning disability, speech delay, or physical impairment. Since 2007, Ms. Harrison has been a teacher for students with varying exceptionalities at Bashaw Elementary School. On August 15, 2011, Ms. Harrison began preparations for the new school year. Assigned to Ms. Harrison's class was a new teacher's aide, Ms. Stephan. Prior to August 2011, Ms. Stephan had never worked in a varying exceptionalities class. Ms. Stephan, however, has an interest in helping children with autism, and is currently earning her college degree in psychology with the hope of becoming a special education teacher. For the 2011-2012 school year, Ms. Harrison's class consisted of 12 students. Most of these students are children that she has taught for the past four years. One new student, however, was A.R. At the beginning of the 2011-2012 school year, A.R. was an eight-year-old girl with autism and behavioral issues. Based on her Individual Education Plan (IEP) team's discussion, A.R. was placed in Ms. Harrison's class. Unfortunately, because of her disabilities, it is undisputed that A.R. has difficulty with transitions. Consequently, A.R. could sometimes be non-compliant with directions. Furthermore, when A.R. became frustrated she had been known to become unpredictable, often screaming or yelling, throwing items, overturning desks, and becoming aggressive with other students. Moreover, because of her autism, A.R. would use verbal phrases inappropriately and out of context, such as "count to six" or "PBS kids." The testimony showed that A.R. had difficulty transitioning into Ms. Harrison's class. In the short period of time from the start of school on August 22, 2011, until the incident in question of August 30, 2011, Ms. Harrison and Ms. Stephan tried different methods to help A.R. with the transition. Sometimes, in order to encourage A.R. to be compliant, Ms. Harrison and Ms. Stephan would allow A.R. to draw butterflies, which A.R. enjoyed doing, or go for "happy walks" with Ms. Stephan outside the classroom. During these "happy walks," A.R. would burrow or nuzzle her head into the side of Ms. Stephan for comfort. Ms. Stephan developed an affinity for A.R, and Ms. Stephan would spend approximately 30 percent of the class time helping A.R. The events that give rise to this hearing occurred on August 30, 2011. The key factual question presented is whether or not Ms. Harrison had constant visual contact with A.R. once Ms. Harrison removed A.R. from the classroom for disruptive behavior. Resolution depends on the credibility of the only two witnesses who were present in the class on August 30, 2011, Ms. Harrison and Ms. Stephan. On August 30, 2011, Ms. Harrison was teaching a class about growing a plant from seeds. The students were first required to draw pictures showing the progression of a seed into a plant. After finishing the drawing, the students would then go to the horseshoe-shaped table for a hands-on lesson where the students would plant seeds in a bag. In the hands-on portion, each student would take turns writing his or her name on a clear ziplock bag with a permanent marker, then fill the bag with soil and a seed, and water the seed. On August 30, 2011, A.R. was having a "bad day," in that she was not compliant with the school work. As the class finished the drawing assignment, the other students joined Ms. Harrison at the horseshoe-shaped desk for the hands-on portion of the lesson. A.R. continued to work at her desk on the drawing with Ms. Stephan. When A.R. finished her drawing, she went to the horseshoe table and pushed herself in front of the other students. A.R. began screaming to get her bag, soil, and seed. Ms. Harrison told A.R. that she would have to wait her turn. A.R. continued to yell, and Ms. Stephan, in turn, got A.R. a bag, filled it with soil and wrote A.R.'s name on the bag. Initially, A.R. stopped yelling once she got her bag, until she saw one of the other students writing his or her name on the bag. A.R. began yelling and demanding that she be given the permanent marker. Again, Ms. Harrison told A.R. that she would have to wait her turn for the marker. Undeterred, A.R. began to scream loudly, demanding that she be given the marker. Ms. Harrison asked A.R. to calm down, but A.R.'s behavior continued to escalate. Ms. Harrison noticed that A.R.'s behavior was distracting her other students. Further, based on Ms. Harrison's past experience with teaching many of these same students, she thought that A.R.'s disruptive behavior might result in one of her other students acting out against A.R. Ms. Harrison determined that she needed to remove A.R. from the area, so she said something to the effect of "that's enough," took A.R. by the hand, and led her to the door on the opposite side of the classroom. Ms. Harrison directed Ms. Stephan to watch the other students. As Ms. Harrison walked to the door with A.R., A.R.'s behavior continued to escalate with her crying and screaming that she wanted the marker. With one hand holding A.R.'s hand, Ms. Harrison opened the classroom door. The door opened into an outside grassy area adjacent to the classroom. This area was described as containing a picnic table and was sometimes used by the class for different science activities. Photographs show that a short distance from this grassy area is a parking lot with a gated entrance, where school buses and vehicles would park. Further, the area is surrounded by a six-foot chain-link fence on the far side of the parking lot. At the time Ms. Harrison escorted A.R. from the class, at approximately 11:20 a.m., the gate was closed. Consequently, there was no danger of A.R. being injured by an incoming bus or vehicle. As Ms. Harrison opened the door with A.R. in tow, A.R. attempted to burrow or nuzzle her head into Ms. Harrison's side. Ms. Harrison found this behavior unacceptable because it was reinforcing A.R.’s behavior for acting out. Therefore, Ms. Harrison separated A.R. from her side. A.R. responded by trying to strike Ms. Harrison and continued her screaming tirade.1/ When A.R. attempted to strike Ms. Harrison, Ms. Harrison, with her hand, swung the door into a position between herself and A.R. Ms. Harrison, however, kept constant visual contact on A.R. with the door ajar. Ms. Harrison told A.R. repeatedly that she would have to calm down before being allowed back into the classroom. A.R.'s conduct continued to escalate with A.R. screaming, yelling, and hitting the door. Ms. Harrison did not lose sight of A.R. and was standing in A.R.'s immediate vicinity. Ms. Harrison credibly testified that she was never more that 12 inches from A.R. at the door. Further, Ms. Harrison was in a position to stop A.R. from running away from the immediate area outside of the classroom, had A.R. attempted to run away from the classroom. There was no testimony, however, that A.R. ever attempted to leave the immediate area outside of the door and Ms. Harrison's supervision. After a time period of approximately two to three minutes, A.R. calmed down sufficiently to return to the classroom with Ms. Harrison. Upon returning to the classroom, Ms. Harrison found that Ms. Stephan had completed the seed planting with the rest of the class. The students went to "Rainbow," which consists of special classes such as physical education, computers, or music. Ms. Harrison asked Ms. Stephan to accompany the class to Rainbow. Ms. Stephan's testimony and observation that Ms. Harrison had closed the door on A.R. was not credible, because the record contains facts showing her sight of the door was obscured and that her attention was diverted. Ms. Stephan's ability to observe A.R. and Ms. Harrison at the outside door was hindered by the fact that in the classroom she was in the opposite corner away from the door. The testimony showed that as Ms. Harrison escorted A.R. from the classroom, Ms. Stephan continued to help the other students in filling the bags with soil, seeds, and watering the seeds. The pictures from the classroom, taken that day, show the water faucet that was used to water the seeds was in the opposite corner of the room away from the door. In order to fill the bags with water, Ms. Stephan would have had to have her back to the door where Ms. Harrison and A.R. were located. The pictures, further, show that between this faucet and the door was an easel with paper on it, student desks, and a cubbie partially blocking the view. In addition to the physical obstacles, Ms. Stephan was helping the remaining 11 students with the seed planting. Ms. Stephan even testified that one boy complained that she had "drowned his seed" by putting too much water in his bag. Moreover, when Ms. Harrison returned with A.R., the seed planting lesson had been completed, and it was time for the students to go to Rainbow. Clearly, Ms. Stephan had helped the students finish the seed planting lesson while Ms. Harrison attempted to calm A.R. Although Ms. Stephan testified that she did not know if she had put water in the boy's bag before or after the incident with A.R., other facts show that Ms. Stephan filled the bag while the incident with A.R. was ongoing. It was undisputed that at the beginning of the seed planting, Ms. Stephan was helping A.R. with the drawing assignment. Immediately after finishing the drawing assignment, Ms. Stephan helped A.R. by obtaining a bag, writing A.R.'s name, and adding the soil. It is at this point that A.R. became upset when she saw other students using the marker. The testimony showed that Ms. Harrison removed A.R. from the class as A.R.'s behavior escalated, and that Ms. Stephan remained with the students. Similarly, Ms. Harrison testified that upon returning approximately two to three minutes later, the bags had been filled and watered. Consequently, the facts lead to the finding that Ms. Stephan helped finish the teaching lesson by filling the bags with water during the time that Ms. Harrison was trying to calm A.R. Therefore, Ms. Stephan was not in a position to see clearly the interaction between Ms. Harrison and A.R. In any event, on the issue of whether or not Ms. Harrison kept visual contact with A.R. in the time that A.R. was taken out of the classroom, the undersigned found Ms. Harrison's testimony credible and the basis for the factual finding, and did not find Ms. Stephan's description of the events credible. As Ms. Stephan walked the class to Rainbow, she saw another teacher's aide. Ms. Stephan informed the teacher's aide that Ms. Harrison placed A.R. outside the classroom, without supervision, and that A.R. had cried, yelled, and banged her head against the door pleading to be let into the classroom. This initial report eventually led to the School District's investigation, the subsequent temporary removal of Ms. Harrison from the class, and this disciplinary proceeding. Mr. Bennett, Bashaw Elementary School's Principal, testified he considered the allegation of Ms. Harrison's conduct serious because he believed that Ms. Harrison had placed A.R. in a dangerous situation.2/ Consequently, he had Ms. Harrison's personnel file examined and reported the incident to the School District. Mr. Bennett and Ms. Horne testified that Ms. Harrison had a prior disciplinary problem, and had entered a Memorandum of Conference, on March 25, 2008, concerning the expectations and directives in regard to students. Specifically, the Memorandum of Conference addressed "the teacher's observed inappropriate handling of students." Yet, the investigative report, introduced into evidence by the School Board, shows that the claim Ms. Harrison had used excessive force against a student was unfounded. The School Board failed to show that Ms. Harrison had been disciplined for using excessive force. In fact, the only discipline ever given to Ms. Harrison involved a seven-day suspension, without pay, for reporting to an IEP team meeting unprepared and allowing the student's IEP to lapse. The record further shows that A.R. was prone to repeating verbal phrases inappropriately and out of context. This characteristic of using verbal phrases in an inappropriate manner is consistent with A.R.'s disability of autism. Consequently, the undersigned found no significance to testimony showing that in the weeks after August 30, 2011, incident, A.R. would state "Ms. Stephan let me in " during school time. As Ms. Harrison credibly testified, A.R. would use the phrase "let me in" sometimes in the context of asking to join a group. Therefore, the claim that A.R. used the terms "let me in" as a result of being placed outside the classroom on August 30, 2011, is unfounded. Similarly, there was no competent evidence to support the allegation that A.R. attempted to run from classrooms through the backdoor based on the incident of August 30, 2011. Following the August 30, 2011, incident, Ms. Fazio, the School District's behavioral specialist, viewed A.R. in the classroom. Prior to the August 30, 2011, incident, A.R. did not have a behavioral plan in place. Further, since the August 30, 2011, incident, A.R.'s IEP team recommended that A.R. be moved from Ms. Harrison's class to a lower cognitive functioning class. A.R. was transferred to the lower cognitive functioning class, which her teacher Ms. Kennedy described as a "better fit" for A.R. Finally, the record showed that Ms. Harrison is a capable and respected varying exceptionalities teacher. Teachers and teacher aides, who testified, described her as firm with the students, well prepared, organized and patient with her students. There is no evidence that she was neglectful, aggressive, or mistreated her students. Furthermore, the testimony showed the lengths that Ms. Harrison would go to in order to keep visual supervision over her students. For example, When walking her students down a hallway, Ms. Harrison would routinely walk backwards, so that she could keep visual supervision on her students at all times. Consequently, there was no credible evidence that Ms. Harrison took any action that was harmful to A.R., her learning, or that impaired Ms. Harrison's effectiveness as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order dismissing the Administrative Complaint against Ms. Harrison, as not supported by the facts. DONE AND ENTERED this 28th day of June, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 28th day of June, 2012.
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
The Issue The issue presented is whether Petitioner should be awarded credit for his answers to eleven (11) questions on the September, 1989, Florida Behavior Analysis Certification Examination.
Findings Of Fact Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. He failed to achieve a passing score on that examination. At the final hearing, Petitioner challenged the score he achieved on that examination by raising a general challenge to the vagueness of the examination and by challenging the score given for his answers to questions numbered 11, 12, 16, 27, 42, and 53 on Part II of the examination. Part I, Item 12, is correctly scored as "A" instead of Petitioner's "C" because the question asks about a topographical definition, i.e., the form of the behavior. "A" describes the form of the behavior, while "C" partly refers to form but also includes extraneous information. Therefore, "C" is an incorrect alternative since it is more than a topographical definition. Part I, Item 45, is correctly scored as "A", the most reasonable inference from the two levels of responding. Petitioner's choice of "B" is incorrect because the baseline level of responding has not been established. Part I, Item 72, is correctly scored as "B" instead of Petitioner's "A". The question asked for the least intrusive prompt, and the gestural prompt in "B" is less intrusive than "A", a demonstration prompt. Part I, Item 83, is correctly scored as "C". "C" specifies a loss of candy every time the client hurls the object, which is not only accepted practice in the field but also agrees with the literature in the field that punishment procedures should follow a behavior each time the behavior occurs. Petitioner'S choice of "A" is not acceptable because the problem behavior could escalate and there is currently only a slight decrease in the client's behavior. Part I, Item 85, is correctly scored as "A" rather than Petitioner'S answer of "B". The literature in the field reveals that when a behavior receives intermittent reinforcement, the behavior is more resistant to extinction. Although "B" is sometimes correct, it is sometimes incorrect and, therefore, is a less desirable alternative. Part II, Item 11, is scored correctly as "A" rather than "C" as Petitioner chose because the question asked for a behavioral goal. "A" is a good example of a goal, which is a general statement of the behavior change intended; however, "C" is a good example of a behavioral objective rather than a goal because that alternative specifies particular details. Part II, Item 12, is correctly scored as "C" rather than "B" as Petitioner chose. The question asks for the most appropriate and concise statement of a behavioral objective. "C" has all the information required, but "B" does not state the performance criteria that would be required for the trainer to know when work has been completed, when the objective has been met. Part II, Item 16, is scored correctly as "B" rather than "A" because "B" adequately describes the nature of the environment in which training will occur, while "A" is vague and nonspecific. Part II, Item 27, is correctly scored as "B" rather than "A". "B" specifies the most appropriate example of training for program procedures and is a direct technique of demonstration rather than "A", an indirect training procedure of posting the procedure and announcing there will be a quiz on it. Part II, Item 42, is scored correctly as "B" rather than "A". Answer "B" specifies the particular behaviors that staff should be engaging in so that their monitors or supervisors can observe and mark on a checklist if those behaviors did or did not occur. On the other hand, answer "A" does not specify the particular staff behaviors to be observed, and it uses a rating system which has inherent problems because the meaning of each rating description is subjective. Part II, Item 53, is correctly scored as a wrong answer because Petitioner omitted one of the key parts of the correct answer to the question. The omitted information is a reference to the process which is critical to classical conditioning, i.e., the pairing of the sound of the bell with the monitor's movement toward the shelf. Partial credit is not given for a partially-correct answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the 20 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20 day of September, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of September 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2406 Respondent's proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 14 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 15 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law or argument of counsel. COPIES FURNISHED: John W. Hedrick, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Dwight O'Quinn Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024
The Issue Whether Respondent (a) pushed a ten-year-old student against a wall and struck his arm with a closed fist; and/or (b) falsely answered a question on the application for renewal of her educator certificate, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's educator certificate.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules. Respondent holds Professional Educators Certificate 730057 (certificate). Valid through June 30, 2018, the certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Cooperative Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (ESE). At all times material to this proceeding, Respondent was employed as an ESE teacher at WHGES in the Miami-Dade County School District (District). Respondent has been employed by the District in a variety of capacities for a total of 25 years and in a teaching capacity for the last 17 years. The charges against Respondent arise from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. On that date, E.A. returned to Respondent's classroom after an in-school appointment with his therapist. Rather than entering the classroom, E.A. stood outside the closed door and knocked on the door intermittently for approximately five to ten minutes. Several students in the classroom went to the door to tell E.A. that the door was unlocked and to come in. When E.A. continued to knock on the door and disrupt the classroom, Respondent went to the door. Respondent was able to open the door part of the way and get her hand and part of her body in between the door and the door frame when E.A. pushed the door closed on Respondent and held it shut with his foot. Respondent shouted at E.A. to open the door and said repeatedly, "it's the teacher, open the door!" When E.A. removed his foot from the door, the door swung out towards the wall, trapping E.A. in a corner between the open door and the wall. Respondent yelled at E.A. to get into the classroom and struck him on the upper arm at least two times. Respondent also picked up E.A.'s backpack and threw it in the classroom. According to Respondent, she made physical contact with E.A. when he raised his arm and she believed he was about to hit her. Respondent claims she used a "defensive move" to prevent E.A. from striking her. Respondent's testimony is inconsistent with that of E.A. and several students who witnessed the event, and deemed not credible by the undersigned. According to E.A., Respondent definitely meant to hit him although he was not hurt physically by the contact. E.A. entered the classroom crying because he was very embarrassed that this occurred in front of his fellow classmates. This altercation was witnessed by another teacher who reported it immediately to administration. Assistant Principal Mary Pineiro (Pineiro) was sent to the classroom to determine what happened. Pineiro observed E.A. crying and holding his arm. Pineiro heard another student say, "I cannot believe you did that to my friend," to Respondent. Respondent refused to answer Pineiro's questions regarding the incident. The teacher and other students who witnessed the event were sent to the office and asked to provide written statements of what they observed. The statements were provided independently and students were separated when they wrote their statements. They were not told what to write and their statements were not edited. The statements corroborated E.A.'s version of events that he was playing around outside the door when Respondent came out and struck him on the arm several times. On February 15, 2012, Respondent was suspended without pay from her teaching position for 25 days which was later upheld after a formal hearing (DOAH Case No. 12-0808TTS). By certified letter dated March 14, 2012, Petitioner informed Respondent that PPS opened a case to investigate her use of inappropriate discipline.2/ On August 9, 2012, another certified letter was sent from Petitioner to Respondent advising that Petitioner had "concluded its preliminary investigation" and wanted to provide Respondent an opportunity to review the materials and respond to the allegations. The letter states that Respondent is not required to respond and that an informal conference was scheduled for August 29, 2012. Respondent wrote back to Katrina Hinson (Hinson) with PPS on August 31, 2012, thanking PPS for "putting me on this pedestal of honor" and giving her the opportunity to refute the allegations of misconduct. Respondent asserts in this letter that she is the victim of a "mafia-type, posse ring" and the victim of a conspiracy including Pineiro and others at WHGES. Rather than respond to the allegations of misconduct, Respondent's three-page letter appears to be a plea for help from Respondent to protect her teaching position from the "obsessive hate" of the alleged conspirators. Petitioner sent a memo to Respondent on August 30, 2012, enclosing a copy of the materials assembled during the preliminary investigation conducted by PPS. The purpose of this memo appears to be to notify Respondent to keep the materials confidential during the proceedings. This memo and the materials were received by Respondent on September 8, 2012. On September 17, 2012, Respondent wrote another letter to Hinson at PPS in which she states, "to be in compliance with your office's investigation, I am writing for professional guidance in regard to curtailing the constant bare-faced humiliation and bait-and-switch torture by Dade County Public School's [sic] employees, as my soul is longing for peace to have solace to grieve my loss in every respect of life fulfillment." Respondent asks whether PPS is part of the DOAH process, complains about the union attorney and the school board attorney and asserts that the "mafia-type posse wants me to be on an accelerated program for homelessness and malnutrition." This letter, and its reference to an "investigation," is not a response to allegations of misconduct but rather appears to be Respondent's attempt to seek help from PPS with regard to the DOAH proceeding. The final hearing in the DOAH proceeding regarding Respondent's suspension without pay occurred before Administrative Law Judge Stuart M. Lerner on September 24, 2012. On October 1, 2012, Respondent wrote another letter to Hinson which states in the opening paragraph: To be in compliance with your office's investigation, I am writing for professional guidance in regard to my mental faculty due to my mild malnourished and homeless states, as I am constantly being deprived of rightful income due to a group of vicious, hateful, and jealous so-called professional educators and so-called professional administrators of Dade County public schools. This letter states, "I am being sanctioned (mentally slaved [sic]) that if I return to employment of Dade County Public Schools. I cannot communicate further with your office, neither through writing or telephone." In this letter, Respondent asserts that E.A. and the student witnesses were "coached to give false witness against me." Regarding the incident with E.A., Respondent states, "the student kidnapped me between the door and the door jamb, and battered me with the door to my head and upper torso, that left me with a mild head trauma." A similar letter was written by Respondent to Hinson on October 5, 2012. Respondent does not mention any "investigation" but again asks for help from Hinson stating: May you please go another extra mile to help me? I beg of you. My grasp to hope is weakening as my resilience to these evil ones has been for many, many years. They have cornered me by attacking my every phase of bottom line. Please, do not allow evil to have dominion over good. A final letter by Respondent to Hinson was written on October 19, 2012, in which Respondent complains that she is being unfairly harassed by the principal at her new assigned school, Aventura Waterway K-8 Center. Notably, Hinson did not reply to any of the correspondence from Respondent. According to Hinson, PPS has no authority to address concerns or complaints about harassment or discrimination. This information was not communicated by PPS to Respondent. What is clear from these letters is that Respondent had no understanding that she was under investigation by DOE. Rather, Respondent erroneously believed that PPS would intervene on her behalf with regard to her then-pending matter before DOAH or with her assigned schools. The final order upholding Respondent's suspension without pay was issued by the District on February 13, 2013. Respondent alleges that, at that time, she was advised by her union representative that the matter was concluded and that she did not have to worry about this incident any further. On March 18, 2013, Respondent filed her annual application for renewal of her educator's professional certificate with the District. In response to the question, "Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for professional license or certificate?" Respondent answered "No." Respondent certified by her application signature that all information provided in the application was "true, accurate and complete." When the District received and reviewed the application, a computerized alert was received from Petitioner indicating that an investigation was pending with PPS. Jose Garcia, Certification Officer for the District, notified Respondent by memorandum dated April 17, 2013, that Respondent needed to return a corrected application. Respondent did not believe she was under investigation and thought that by indicating "yes" on the form, she would be incriminating herself. Respondent wrote Governor Scott an email on May 17, 2013, alleging that PPS and the District Certification Office were wrongfully preventing the renewal of her application in an attempt to prevent her from working with children with disabilities. As a result of this email, the alert was removed from Respondent's certificate and it was reissued by the District. Respondent never acknowledged the DOE investigation in her application for renewal. Petitioner considers Respondent's refusal to acknowledge the pending PPS investigation as an attempt to renew her certificate by fraudulent means. The Administrative Complaint charges Respondent as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(a), Florida Statutes, in that Respondent obtained or attempted to obtain a teaching certificate by fraudulent means. COUNT 2: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 3: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 4: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. COUNT 6: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings. Respondent filed a Motion for a Formal Hearing on December 26, 2013, with the EPC in which she disputed all of the allegations of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the incident with E.A., with a copy to be placed in Respondent's certification file, and placing Respondent on probation for a period of 90 school days. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 22nd day of January, 2015.
