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
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 Whether the Respondent is guilty of gross incompetence and falsification of course sheets as alleged in the Administrative Complaint.
Findings Of Fact Based upon the exhibits received into evidence, the stipulation of the parties, and testimony of the witnesses at the hearing, the following findings of fact are made: The Respondent was certified by the Criminal Justice Standards and Training Commission on April 1, 1987, as an instructor and was issued instructor certificate number 129487. Respondent was employed at Central Florida Criminal Justice Institute located at the Mid-Florida Vocational Technical Institute, beginning in March 1989. During the relevant period, Respondent was employed as Program Director/Coordinator of advanced and specialized training. Respondent was also the Assistant Director of the Academy. Respondent has prior experience as a corrections officer and as a certified probation officer. Respondent received a Masters degree in education and is a certified teacher. In February of 1992, Ron Kazoroski was the Director of the Criminal Justice Institute at the Mid Florida Vo-Tech. Respondent was responsible for initiating night courses at the Institute for the benefit of the officers who worked the second or third shifts. February 1992 was the second time that the Instructor Techniques class had been offered at night. Respondent had planned to be more involved in the instruction of the Instructor Techniques course than she had been in the previous time the course was offered and had scheduled herself to teach several blocks of instruction. However, the week before the course was to start, Respondent was informed that she needed major surgery within two days. Respondent spent Wednesday and Thursday trying to find instructors to cover for her, prior to her scheduled surgery on Friday. Respondent contacted Pam Eckler, an instructor at the academy, to assist her in locating qualified instructors who could teach on short notice. Respondent was trying to prevent the cancellation of the course. On the first night of class Respondent was recuperating from the surgery. Respondent submitted six certificates of absence for the period of January 28 through February 26, 1992. The Instructor Techniques course started on February 3, 1992, and finished on February 28, 1992. The course was scheduled in the evening from 5:30 p.m. to 9:30 p.m. Florida Department of Law Enforcement regulations required the Instructor Techniques course to be 80 hours long, and the class was formatted for that many hours. In February of 1992, Barbara Bushnell was a Corrections Officer employed by Orange County Corrections and assigned to the Training and Staff Development Department. Bushnell was assigned to the Academy prior to the Instructor Techniques class in February of 1992. Bushnell was certified as an instructor by the Criminal Justice Standards and Training Commission. In February of 1992, Pamela Eckler was a Correctional Training Supervisor for Orange County Corrections, Department of Training and Staff Development. Eckler was also an instructor, certified by the Criminal Justice Standards and Training Commission. Eckler was asked by the Respondent if she was interested in teaching the evening Instructor Techniques course in February of 1992. Eckler agreed, and was offered the opportunity to teach the classes of her choice. Eckler decided to teach Adult Learning Theory on February 3, 1992, from 7:30 p.m. to 9:30 p.m. and Liability and Ethics on February 4, 1992, from 5:30 p.m. to 9:30 p.m.. On February 21 and 25, 1992, Eckler was assigned to monitor the student presentations from 5:30 p.m. to 9:30 p.m. On February 3, 1992, Eckler received a telephone call from the Respondent who had just had surgery on Friday, asking her to move her block from 7:30 p.m. to 5:30 p.m. Respondent also asked Eckler to give the class a short orientation to the course. Eckler taught her two-hour segment and allowed the students to leave on February 3rd at 7:30. On February 4, 1992, Eckler taught a four-hour block on Liability and Ethics. Eckler utilized the whole time period, and the students were not let out early. On February 20, 1992, Respondent called Eckler and told her that she was not needed to teach on February 21 because the Respondent had given the class an off-campus assignment. Eckler did not teach the class on February 21, 1992. Eckler was scheduled to monitor the students’ presentations on February 25, 1992, from 5:30 p.m. to 9:30 p.m. Several students had a problem with the lesson plan development. Eckler characterized the problems with the lesson plans as major, with the problems being in different areas. In February of 1992, Georgette Thornton, a Lieutenant with Orange County Corrections and a certified instructor by the Criminal Justice Standards and Training Commission, was asked if she was interested in teaching part of the Instructor Techniques course. Thornton called the Respondent who indicated that she needed an instructor for February 10, 11, and 12, 1992, as an emergency replacement. Thornton agreed to teach two hours on February 10, four hours on February 11, and four hours on February 12th. Thornton found out from the students that it was the second week of class, and the students were not aware who the Respondent was. The students did not know what their final project was. Thornton talked to the Respondent, explaining her observations. She asked her to speak to the class about their responsibilities for their final project. Respondent appeared at the class on February 11th and told the class what their final project was. Respondent also covered part of the class material that Thornton was supposed to instruct. Thornton then elaborated on what Respondent had said. Thornton did not have sufficient materials given to her by Respondent to fill up the four-hour time block she was scheduled to teach. She did not have an adequate opportunity to supplement the materials given to her by Respondent, since they were given to her on Friday and the class was on Monday. Respondent told Thornton in front of the class to cover the rest of the material and to allow the students to leave early. Thornton covered everything that was in the guide and released the students at 7:30 p.m. on February 11th. Thornton also gave them a thorough review on the 12th of the items that they could expect on the exam. Thornton released the students at 7:00 p.m. Thornton decided to write a memo to the director. Thornton was concerned about the poor organization of the class and the lack of guidance given the students by Respondent. Thornton did not feel that the students were getting the amount of instruction they deserved in the class. A week or two before the class was scheduled to start, Bushnell was asked by the Respondent to teach a portion of the Instructor Techniques class being offered in February of 1992. Bushnell was asked to replace an instructor who had an emergency situation and could not teach. Bushnell was asked to teach Lesson Plan Development on February 13 and 14, from 5:30 p.m. to 9:30 p.m. Bushnell had in her possession a copy of the goals and objectives of the Instructor Techniques course, which was part of the materials she previously had in her possession. She also had in her possession the FDLE Instructor Techniques Instructor Guide, which had all of the different areas to be covered in the course, including goals and objectives. Bushnell was given an ample amount of time to prepare for her block of instruction. Bushnell taught the Instructor Techniques class from 5:30 p.m. to 9:30 p.m. on February 13, 1992. Bushnell placed posters on the wall showing the two types of outlines for lesson plan development. She was informed by the students that the Respondent had already told them that the outline format was not going to be used. Bushnell informed them that there were several different types of formats, and that she would be instructing them using the outline format. The outline format was taken from the Instructor Techniques Instructor Guide. On February 14, 1992, Bushnell met with the Respondent prior to class to sign her contract for teaching the class. She also discussed details concerning the expectations of the class. The Respondent told Bushnell that the students were used to having some time during lesson plan development to work on their lesson plan outside of class. She expected Bushnell to give the students an outside assignment. Bushnell covered the materials in the outline and instructed her class until 9:30 p.m. Bushnell did not have enough time to cover all of the material she was supposed to cover. The students stated that they were having trouble with the lesson plans and requested her help in their development. Bushnell offered to help them on their lesson plans during the time she was scheduled to teach. Bushnell had concerns about how the class was being conducted and wrote a letter to Director Kazoroski, stating her concerns with the Instructor Techniques class. The students were upset due to a lack of direction being given by the Respondent. The students were also confused due to misunderstandings on how the lesson plan should be written. In February of 1992, Jacqueline Miller was an instructor in the Instructor Techniques course offered that month that the Respondent coordinated. Miller was asked by the Respondent to critique the students making their presentations. Miller was not required to do any preparation to complete her instruction, since it only involved critiquing the students. Miller contracted to critique the students for twelve hours between February 24 and 27, 1992. Miller utilized the maximum amount of time allowed for each day that she was in class. Although the skill level of the students varied considerably, none received a failing grade. On March 2, 1992, Eckler, Thornton, and Bushnell met with Kazoroski to discuss the problems with the class. The students were confused because Bushnell had taught Lesson Plan Development using the guidelines from the Instructor Guide, but the Respondent instructed the class to do it differently. This inconsistency confused them. Respondent did not assist them in their lesson plan development. The course was not well organized. The class was given a week to work on their lesson plans at home, with no one available to assist them, and they were confused about how to complete them. The Respondent’s instructor skills for this class were criticized. However, Respondent’s skills were not evaluated. On several occasions, the students were allowed to leave early from class. The Respondent would tell the class that they had assignments to do at home or out of class. The instructor notes to the Instructor Guide state that [T]his instructor guide was developed with the intention of providing the basic instructional material for this course. The individual instructor will find that only the minimum has been provided. None of the blocks of instruction provide the entire material for the topic being instructed. Each instructor is expected to use the provided material as a starting point and a reference source. The instructor notes to the Instructor Guide state that [E]ight hours have been provided for lesson plan development in class. This block was provided to allow the instructor to assist the students in their individual development of lesson plans. This does not suggest that students will not be required to work outside the classrooms. It was the policy of the Criminal Justice Institute to keep class documents, including the attendance sheets, from every class that was offered at the institute. The documents were kept in a file cabinet in the director’s office and were supposed to be kept in a secure place. The attendance sheets were required for FDLE audits to show that each student attended the requisite number of hours for the class. The records of the Instructor Techniques course offered at Mid-Florida Vo-Tech in February 1992, were reviewed including the overall attendance records for the Instructor Techniques class, which were signed by the Respondent. It was the policy of the Criminal Justice Institute that 50 minutes of instruction, with a 10 minute break, constitute 1 hour of credit. The class was given credit for 80 hours attended. However, there were 16 hours of class cancelled by Respondent, including the class on February 28, 1992, when that class was cancelled by Respondent because the course was over. All of the students received credit for four hours on February 3, 1992, when Eckler allowed the students to leave after two hours. For February 11 and 12, 1992, Respondent gave each student credit for four hours, although Thornton allowed the students to leave after two hours on February 11, and after three hours on February 12. The students were given credit for four hours for February 19, 20, and 21, 1992, for lesson plan development that was done outside the classroom. The FDLE requirements are that the Instructor Techniques course allows for eight hours of lesson plan development in class. It was usual for an academy to have an instructor available during the lesson plan development to answer any questions or concerns of the students while they worked on their lesson plans in class. FDLE rules stated that if a student missed over ten percent of the class, that student was deemed to have not successfully passed the class. The early release hours and the out-of-class assignments given to the students were not reflected on the overall attendance sheet signed by the Respondent.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found not guilty of violations of Sections 11B-20.0012(1)(b), (d), (e), and/or (f), Florida Administrative Code, and that the Amended Administrative Complaint be dismissed. RECOMMENDED this 31st day of July, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of July, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Phyllis Blackmon Ledbetter 202 Dalton Drive Oviedo, Florida 32765 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
The Issue Whether Respondent, Lucille Stuart Foster (Respondent), violated provisions of Florida law governing teachers and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate, and are alleged to have violated provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2010). Respondent holds a teaching certificate in Florida, Certificate Number 383630, that covers the areas of reading, mathematics, and music. Respondent's certificate is valid through June 30, 2015. At all times material to the allegations of this case, Respondent was employed by the Collier County School District (District) and worked as a music teacher at the elementary school level. Prior to the allegations encompassed within this case, Respondent had not been disciplined by the District. Respondent was employed by the District from 1976 through the 2009-2010 school year. With the exception of one year, Respondent's performance evaluations have been acceptable until the allegations of this matter arose. Prior to the 2008-2009 school year, Respondent was assigned to one school on a full-time basis. Beginning in 2008, Respondent was assigned to be an "itinerant" teacher. As such, Respondent was directed to teach at three different elementary schools and to move among the schools during the school week, as her schedule dictated. The three schools were Corkscrew Elementary, Golden Terrace Elementary, and Big Cypress Elementary. An administrator at each of the schools was assigned supervision and evaluation duties for Respondent's job performance. All of the administrators required that Respondent prepare and submit lesson plans for review. All of the administrators observed Respondent in the class setting. All of the administrators found deficiencies in Respondent's job performance. At the conclusion of the 2008-2009 school year, the District returned Respondent from her continuing contract status to an annual contract. More critical to this case, however, is the fact that the District put Respondent on a prescriptive plan for improvement so that she could address the deficiencies in her work performance. The District offered support services to encourage Respondent to make the improvements needed. Respondent did not acknowledge, and does not acknowledge, that her work performance during the 2008-2009 school year was unacceptable. Respondent maintained that one of the administrators harassed her and then wrongly sought to discipline her. When the 2009-2010 school year began, Respondent was directed to complete remediation so that the problem areas of her job performance could improve. Specifically, Respondent was to prepare and timely submit appropriate lesson plans. She was to follow the plans in the teaching of her students. She was to maintain classroom decorum so that students would remain on task and not disrupt or interfere with the learning experience. In recognition of the difficulty of teaching at three different schools, Respondent was allowed to prepare one lesson plan that could be implemented at all three locations. It was expected that music students would prepare for and publicly perform at designated school functions. In the past, Respondent successfully led her students in many performances that demonstrated an appreciation for music and musical achievement. During the 2009-2010 school year, however, Respondent's ability to focus on the improvements sought by her administrators diminished. As her frustration level grew, her civility toward one of the administrators waned. Respondent was convinced that efforts to assist her were not genuine. Principal Lettiere, Respondent's supervisor at Big Cypress Elementary School, identified the following deficiencies in Respondent's job performance: Failure to have lesson plans; Failure to timely submit adequate lesson plans; Insufficient delivery of lesson plans to the class; Failure to tie the lesson plan to the lesson taught; Failure to timely report for work; and Failure to provide an accommodation for a student with disabilities during the music lesson. Principal Lonneman, Respondent's supervisor at Corkscrew Elementary School, identified the following deficiencies in Respondent's job performance: Failure to keep students engaged during class time; Failure to include musical instruments into the music curriculum; Failure to timely prepare lesson plans; and Failure to incorporate the music curriculum within lesson plans. Principal Glennon, Respondent's supervisor at Golden Terrace Elementary School, observed Respondent multiple times during the 2008-2009 school year. Principal Glennon documented the following deficiencies in Respondent's job performance: Failure to keep students on task; Lack of classroom management skills; Failure to have a structured lesson; and Failure to follow adequate lessons. Principal Glennon tried to meet with Respondent to go over the deficiencies, but Respondent did not timely comply with his requests for a conference. Instead, Respondent has steadfastly and resolutely claimed her teaching skills to be adequate, if not superior. In February 2009, Principal Glennon cited Respondent for failure to report to work; failure to provide a classroom management plan, as he had requested; and failure to redirect students who engaged in off-task behaviors. In March 2009, Respondent was advised that she would be returned to annual contract status at the end of the school year. Respondent received a contract for the 2009-2010 school year, but began the year with a plan for her improvement in the classroom. Respondent was afforded 90 days within which to improve her performance. Mr. Glennon hoped that by outlining the areas that needed to be improved, Respondent would soldier on and make the necessary corrections. When Respondent failed to address the concerns outlined by her improvement plan, her school administrators, with the consent and authorization of the District superintendent, removed her from the schools. Respondent was placed in the status of "pool" teacher and completed the 2009- 2010 school year in that assignment with benefits and salary. At the end of the year, Respondent's contract was not renewed. Respondent is a talented musician who played with a local symphony for many years. Early in her career, Respondent was effective as a music teacher. Respondent was praised by former administrators who worked with her during those times. None of the former administrators observed Respondent during the periods of time critical to this case. It is unknown whether during those earlier years the requirements regarding lesson plans, classroom management, and curriculum were the same or similar to the requirements of the 2008-2009 and 2009-2010 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's teaching certificate be suspended for a period up to one year during which time Respondent be required to successfully complete continuing education courses to address Respondent's deficiencies in classroom management, lesson plans, and professionalism. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012. COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
