The Issue Whether Rose Davidson committed the acts alleged in the Miami-Dade County School Board's Notice of Specific Charges dated April 7, 2017; and, if so, what discipline should be imposed against her.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of fact: Petitioner is the properly constituted School Board charged with the duty to operate, control, and supervise all public schools within the School District of Miami-Dade County, Florida. In the 2015-2016 school year, Respondent was employed, under a professional services contract, as a first-grade teacher at RPES, a public school in Miami-Dade County. Respondent’s employment, and any disciplinary action proposed to be taken against her, is governed by a collective bargaining agreement between the School Board and the United Teachers of Dade, as well as policies of the School Board and Florida law. Respondent has been employed by the School Board since 1990, nearly 27 years. She spent the first ten years of her career teaching at Westview Elementary. She subsequently taught high school for approximately 15 years. She was transferred to the Graham Center in the 2011-2012 school year, where she taught second grade for that school year and the 2012-2013 school year. Respondent was out of work on a period of suspension from the School Board for the 2013-2014 school year. She was reinstated by the School Board based on a Recommended Order issued by an Administrative Law Judge at DOAH in Case No. 13- 3418TTS, which found in her favor. She has been at RPES since June 2014. At the time of this incident in 2016, Respondent was a first grade teacher at RPES. Classroom Testing Incident on April 4, 2016 On April 4, 2016, Respondent administered a standardized math test to her first-grade class.1/ It was undisputed that the math test required the Respondent to read the questions out loud to the class, who then answered the questions on their individual test sheets. Respondent was assisted during the math testing by a reading coach at the school, Tedria Saunders. Saunders had been employed by the School Board for approximately 12 years. Saunders was a certified reading teacher for grades kindergarten through 12. Saunders was acting as a proctor and was expected to observe the students and provide support to Respondent. She stood or sat in the classroom during the course of the math exam. She had the freedom, like the teacher, to move around to observe the testing. She testified that her relationship with Respondent had been professional and friendly, and they had done some curriculum planning together.2/ Count I--Misconduct in Office During the course of the math test, Saunders observed Respondent engage in several testing irregularities. She saw Respondent providing direct assistance and “giving answers” to several students on the examination. More descriptively, she saw Respondent physically point out the correct answer to several students stating “you need to fix the answer.” Saunders also heard Respondent give verbal answers, prompts, or cues to several students, as Respondent walked around the classroom and stood near the desks of several students. As she walked around, Respondent would periodically touch or point to the student test booklet that was on the desk in front of the student, while making sounds and hand motions directing them to the correct answer. For example, when a student pointed to an answer, Respondent would give them a verbal cue or signal that their proposed answer was either right or wrong. Saunders observed Respondent help approximately six to seven students using these methods. Significantly, and after making these observations, Saunders decided to immediately depart from the classroom while the testing was still going on to ask the security guard to summon the appropriate administrator or report the event herself. After going outside, Saunders eventually found her way across the grassy area outside the classroom to the front office where she met with the assistant principal and test chairperson, Ines Diaz. She reported to Diaz that Respondent was improperly assisting the students and giving them answers to the standardized math questions. When Diaz pressed Saunders on the plausibility of her observations, Saunders told her that she was “sure of” what she had seen and reported. Diaz did not recall for certain if she went to the classroom herself, but was certain that Saunders was directed to return to the classroom, continue her observations, and allow the math testing to be completed. The principal, Robin Armstrong, was present briefly during Saunders’ initial visit with Diaz and after Saunders returned to the administrative office when the testing was concluded. She too overheard Saunders report testing irregularities by Respondent. After the incident on April 7, 2016, Armstrong delivered a letter to Respondent warning her not to discuss the matter with any witnesses, students, and other staff members. Pet. Ex. 17. On May 3, 2016, the administrative investigation was assigned to Detective Sofie Shakir. Among other things, the detective interviewed several of Respondent’s students and staff members. Pet. Ex. 7. Her investigation and subsequent findings resulted in the invalidation of the standardized math test for several of Respondent’s first-grade students due to test irregularities and improper assistance by Respondent on April 4, 2016. Pet. Ex. 15.3/ A conference-for-the-record (a meeting which may lead to disciplinary action) was held with Respondent on August 26, 2017. The meeting included her union representative and Helen Pina from the Office of Professional Standards as well as several other members of the school administration. The meeting occurred nearly five months after the incident. Pina recorded the results of the meeting in a Memorandum which was prepared pursuant to her duties. Pet. Ex. 4. Pina documented in the memo that when she formally confronted Respondent with the allegations by Saunders, Respondent stated: “I want to say it was first grade, not 2nd. I performed the tests very professionally. I followed all the directions and no one helped any kids. I followed the directions from the booklet and that is all that I did.”4/ More significant was a written statement prepared by Respondent and submitted to the principal just days after the classroom incident. Pet. Ex. 16. Although Respondent wrote that she administered the test “the proper way,” again she did not take the opportunity to firmly and positively deny Saunders’ allegations, or respond in more detail. This was significant to the undersigned.5/ Rather than an outright and emphatic denial of the accusations in her first written response, she instead accused Saunders of misconduct during the math testing. The undersigned found this unusual, and an attempt by Respondent to deflect the allegation and steer the blame to Saunders--not address it head on.6/ The testimony of Student D.B., called during the hearing, was uncertain, at best, and lacked any persuasive details to support a finding either way. As a result, his testimony was discounted and given little weight. The evidence from Principal Armstrong and Assistant Principal Diaz, concerning the prompt and contemporaneous reporting by Saunders, is consistent with and corroborates Saunders’ testimony concerning the classroom incident.7/ There was no evidence presented to indicate that Saunders had given any prior inconsistent or conflicting statements, nor was her version of the classroom irregularities impeached or discredited in any material fashion. The undersigned carefully read, studied, and compared a collection of deposition transcripts from seven students who were in Respondent’s class the day of the incident. Pet. Exs. 8-14. From those transcripts, only one of the seven students testified that Respondent directly helped or assisted him or her during the standardized math test. See Dep of J.M., Pet. Ex. 11.8/ The other six testified that Respondent did not help them, nor did they see Respondent help other students answer any test questions. Similarly, only one of the seven students deposed stated that Saunders raised her voice or yelled at any one during the math examination. See Dep. of S.D., Pet. Ex. 9.9/ In evaluating the weight to be given to the seven student depositions, the undersigned notes several key points regarding their ability to accurately recall what occurred and to know what they saw. Initially, all of the students were very young at the time of the incident. And while age is not controlling, it should be considered, along with other factors. More significantly, none of these very young students were charged with the responsibility to watch or observe the conduct of the teacher, other students, or the proctor during the testing. Rather, they were instructed to concentrate and focus on their own test, and not their surroundings.10/ In fact, a reasonable inference from the circumstances surrounding this incident, or any other standardized classroom testing for that matter, is that during regulated testing of this nature, students would not be looking or turning around to observe what others are doing. Based on the private nature of classroom testing and warnings that typically precede testing, students have a natural inclination to avoid being accused of having “wandering eyes” during classroom testing. In balance, the undersigned is unable to credit the testimony of those students who claim they did not see anything untoward or improper during the testing. Under these circumstances, the fact that the students did not see anything improper does not persuade the undersigned that it did not happen the way Proctor Saunders’ persuasively testified, distinctly recalled, and contemporaneously reported to the assistant principal. As a result of the testimony adduced at the hearing and the reasonable inferences drawn from the evidence, the undersigned concludes that there was sufficient evidence to prove Count I, Misconduct in Office. Count II--Gross Insubordination Regarding whether or not Respondent instructed students to be untruthful if questioned about her assisting them during the testing, five out of the seven deposed students denied this occurred.11/ One student said Respondent told them not to tell anyone she had “helped” them on the test. However, to put this comment in proper context, this student went on to clarify that “helping” them meant just reading the questions to them. Pet. Ex. 8. As a consequence, the testimony from this student is insignificant.12/ The remaining student, when asked directly if the teacher told him or her not to tell the truth, responded in deposition that Respondent only told him or her “don’t tell your momma I helped you a little on the test.” The description by this student was unclear and conflicting as well. Pet. Ex. 11. In sum, the testimony from this student was not persuasive. In short, the undersigned is persuaded to give some weight and credence to the deposition transcripts of the five students who denied that Respondent told them not to tell the truth if asked. Contrary to the allegation in paragraph 14 of the Notice of Specific Charges, there was no persuasive evidence that Respondent verbally told the students to be untruthful if asked. On Count II, Gross Insubordination, the undersigned finds that the charge was not proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is FURTHER RECOMMENDED that the final order impose a significant period of unpaid suspension against Rose Davidson and require retraining by her on standardized testing protocol. DONE AND ENTERED this 19th day of July, 2017, in Tallahassee, Leon County, Florida. S Robert L. Kilbride Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2014.
The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2011.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “School Board”), had just cause to terminate Respondent, Joshua Crill (“Respondent” or “Mr. Crill”), for misconduct in office as alleged in the Administrative Complaint.
Findings Of Fact Based on the testimony and exhibits offered at the hearing and the stipulated findings of fact in the Prehearing Stipulation, the following Findings of Fact are made. Petitioner is the constitutional entity authorized to operate, control, and supervise public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; see also § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff. See § 1012.22(1)(f), Fla. Stat. At all times relevant to the allegations in the Administrative Complaint, Mr. Crill was employed as a teacher at Legacy Elementary School, pursuant to a professional services contract. On October 20, 2020, Mr. Crill reported he was involved in an incident at school. Specifically, a student in his classroom was climbing a bookcase. Mr. Crill intervened to prevent the student from harming himself, when the student scratched Mr. Crill’s arm causing a deep laceration and bleeding. Mr. Crill was concerned about possible infection, and thus, he was referred to a workers’ compensation doctor who provides treatment to School Board employees who are injured while working. As part of the evaluation for the possible workers’ compensation-related injury, and consistent with School Board policy, Mr. Crill submitted to a routine urine drug screen. The Medical Review Officer (“MRO”), Dr. Stephen Kracht, provided a report on the urine drug screen to the School Board, which found that the urine sample tested positive for marijuana. Mr. Crill did not challenge the administration of the test or seek a second test to confirm the results of the first test. Mr. Crill also did not challenge the accuracy of the results of the drug screen as reported by the MRO. Mr. Crill acknowledged that he used cannabidiol (“CBD”) products to treat pain related to wear and tear to his shoulder resulting from his military service in the United States Marine Corps (“USMC”) before his employment with the School Board.1 At no point prior to his positive drug screen did Mr. Crill notify his supervisor or the Board that he was using CBD. He only used Ibuprofen before using the CBD products. Mr. Crill pointed to his use of Tropic Twist for the positive test result. Tropic Twist is an over-the-counter product and, according to the packaging, is THC2 infused. Mr. Crill explained that he was introduced to Tropic Twist by a family friend during a gathering that took place before his injury. The family friend gave Mr. Crill the Tropic Twist package of gummies. Mr. Crill did not fully examine the package but he recalled that the package had a hemp leaf on the front and appeared similar to other CBD products that he previously used. The packaging also had the phrase “THC Infused” on the front underneath the package label, next to the hemp leaves. However, Mr. Crill testified that he did not see the language regarding “THC Infused” on the package. 1 Mr. Crill served in the USMC from 2011 through 2015. 2 THC (tetrahydrocannabinol), is the primary psychoactive component of cannabis (marijuana). Throughout his testimony at hearing, Mr. Crill maintained that he had no knowledge that the gummies contained the active ingredient for marijuana, and as a result, he unintentionally ingested the THC. However, he acknowledged that he regularly consumed the Tropic Twist product. Mr. Crill testified that he does not use marijuana or any other illegal drugs. Mr. Crill has no prior history of testing positive for marijuana on a drug screen. He submitted to a pre-employment drug screen when he began working with the School Board, which returned negative. He also submitted to a drug screen prior to being hired at Legacy Elementary School. The School Board maintains a drug-free workplace policy. Petitioner alleges Respondent violated policy 6.33, entitled “Alcohol and Drug-Free Workplace.” Pursuant to policy 6.33, section II.A., which constitutes notice to all employees of School Board, “as a condition of their continued employment” with the School Board, all employees are required to fully comply with the provisions of the Drug-free Workplace Policy. Policy 6.33, section II.B., provides that “it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Policy 6.33, section IV.B., provides that “[e]mployees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs; nor will they be under the influence of such drugs.” Policy 6.33, section IV.B., includes marijuana within a list of substances which are considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R. §§ 1300.11 through 1300.15. Policy 6.33, section VI.B.2., provides: Circumstances under which testing may be considered include but are not limited to the following: * * * 2. Accidents on the job causing personal injury to self or others. The School Board is also a party to a collective bargaining agreement, that governs, in part, terms and conditions of employment for Mr. Crill. According to Dr. Gullett, the recommended disciplinary action is termination when employees violate the School Board’s Drug-Free Workplace Policy. Dr. Gullett issued an Administrative Complaint recommending Mr. Crill’s termination due to his testing positive for marijuana on the urine drug screen. Mr. Crill timely requested a hearing to challenge the proposed termination and the School Board referred the matter to DOAH for an ALJ to issue a recommended order based on those disputed facts. Mr. Crill did not exhibit any signs of being under the influence of marijuana, nor did his principal, Shameka Murphy, observe any indication that Mr. Crill was under the influence. Ms. Murphy did not observe any basis to order Mr. Crill to take a reasonable suspicion drug screen, which would be required if she believed that he was under the influence of drugs or alcohol. The parties also stipulated that Mr. Hensel and Ms. Guest, who were principals at some point during Mr. Crill’s tenure working with the School Board, never had a basis to suspect that Mr. Crill was under the influence of drugs or had reason to direct him to submit to a reasonable suspicion drug screen. Ultimate Findings of Fact The greater weight of the evidence demonstrates that Mr. Crill tested positive for marijuana on a urine drug screen following an incident that occurred while working. Petitioner proved by a preponderance of the evidence that Mr. Crill violated School Board policy, namely: The Alcohol and Drug-Free Workplace Policy 6.33, Section II.B., by having the presence of drugs in his body while working as demonstrated by the positive urine drug screen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order finding that Respondent, Joshua Crill, engaged in misconduct in office and there is just cause to terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056(2). DONE AND ENTERED this 24th day of May, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2021. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast Third Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the Education Practices Commission should revoke or otherwise discipline the Respondent’s educator certificate for allegedly violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning and/or to students’ mental and/or physical health and/or safety) while proctoring the Florida Standards Assessment Test (FSAT) by reading students’ questions and answers and providing assistance to students taking the test, and by allowing her cell phone alarm to sound several times during testing.
Findings Of Fact The Respondent holds Florida Educator Certificate 906253 in the area of World Language-Spanish, which is valid through June 30, 2017. She has been teaching in the Polk County school system since April 2006, first as a pilot substitute teacher and then from August 2007 through the 2012/2013 school year as a full-time teacher. Except for this case, the Respondent has not been involved in any disciplinary proceedings before the Education Practices Commission. Near the beginning of the 2014/2015 school year, the Respondent was hired under a limited employment agreement to teach Spanish at Union Academy, a Polk County choice school with an accelerated curriculum. She was hired to replace a teacher who was unable to teach for medical reasons and was placed on medical leave. Union Academy’s sixth graders took the FSAT on April 23, 2015. The FSAT was the statewide standardized test used to determine how effectively students were being taught in Florida. The Respondent was assigned to proctor the test under the supervision of Christy Trotter, who was the test administrator. The test was taken in the school’s computer skills lab. Each student had a computer terminal to use. Test questions were displayed on computer monitors, and the students used the computer keyboards to type in their answers. In preparation for proctoring the test, the Respondent was trained by Union Academy’s assistant principal, Dr. Alonzo Williams, Jr. Training included a packet of materials on administering and proctoring the test. The materials included a Test Administration Prohibited Activities Agreement and a Test Administration and Security Agreement, both of which were signed by the Respondent. The Respondent also received copies of the “do not disturb” and “no electronic device” signs to be used for the test. The training was familiar to the Respondent, who had proctored a number of standardized tests since becoming a full- time teacher. By signing the prohibited activities agreement, the Respondent acknowledged, among other things, that: before testing, she was prohibited from opening and checking through test books, reading test items, copying or photocopying test content; during testing, she was prohibited from reading test items or student responses, assisting students in answering test items, giving students verbal cues (e.g., “you might want to re- check number 7”) or non-verbal cues (pointing at a specific item), from using her cell phone, checking email, grading papers, or engaging in other activities that would result in her attention not being on students at all times, from allowing students to talk or cause disturbances, from allowing students to use cell phones or other electronic devices (even after submitting their tests), from coaching students regarding test- taking strategies; and, after testing, she was prohibited from reading through student test documents. By signing the security agreement, the Respondent acknowledged section 1008.24, Florida Statutes, and Florida Administrative Code Rule 6A-10.042, and acknowledged that she was prohibited, among other things, from: reading, viewing, revealing, or copying passages or test items; explaining or reading passages or test items for students; changing or otherwise interfering with student responses to test items; or copying or reading student responses. After the test, Ms. Trotter told the school’s principal, Dr. Brenda Hardman, that the Respondent’s phone went off several times during the test. The principal went to the computer lab, found the Respondent still there, and asked her if her phone went off during the test. When the Respondent said, no, meaning she was not taking calls while proctoring, the principal thought the Respondent was being untruthful and asked if the phone made a noise. The Respondent said, yes, it alarmed a few times. The Respondent explained that she previously sought the principal’s advice because the school did not have a system of bells in the classrooms to announce the beginning and end of class periods, and the principal suggested she use her phone alarm. As a result, the Respondent was setting her phone to alert her during her Spanish classes five minutes before the end of class periods. Later in the afternoon of April 23, 2015, the principal received an email from a reading teacher who said her students were saying that the Respondent helped students during the FSAT by giving answers and pointing out wrong answers. Dr. Hardman got the names of the students, but it was too late in the day to follow up with them. Either later that day or the next day, Dr. Hardman spoke to Ms. Trotter about the allegations. By that time, Ms. Trotter had told Dr. Williams she thought the Respondent might have been helping students on the test, and he directed her to report her suspicions to Dr. Hardman. She told Dr. Hardman she observed things that made her suspicious--namely, she saw the Respondent talking to students and stopping when Ms. Trotter either saw her and gave her a look of disapproval, or started to approach the Respondent. She also reported that the Respondent admitted she was standing behind a student and reading the test questions. This was the first time Ms. Trotter told Dr. Hardman any of this. Dr. Hardman then contacted the students whose names she was given to get written statements from them. She glanced through the statements and decided the matter should be referred to the school district’s administrative offices. Eventually, the school district invalidated the test. After the 2014/2015 school year, the Respondent’s limited employment agreement with Union Academy expired, and Dr. Hardman decided not to hire her for the 2015/2016 school year. The principal did not think the Respondent was a good fit at the school, in part because of the FSAT issues. The Administrative Complaint alleges that the Respondent violated rule 6A-10.081(3)(a) when she “read items and student responses and aided students by indicating when they had a wrong answer and/or provided students with answers.” Student E.H. retracted his detailed initial statement that he heard the Respondent give another student a multiple choice answer during the test. He testified that he was lying and that never happened. There was no other testimony or evidence that would support a finding that the Respondent gave students answers. E.H. testified that the Respondent approached him after he finished the test and was checking his answers. He said she began talking to him about doing the work in her Spanish class. He said she told him not to talk back in response because he was not supposed to be talking during the test. He said she then asked to see his answer to the question on his monitor at the time, and he changed the display option on the monitor to show his answer. He said she then told him his answer was wrong. He said Ms. Trotter then approached, and the Respondent walked away. Student L.G. testified that the Respondent approached her, stood behind her briefly, pointed to the computer screen, and said, “You might want to recheck that.” L.G. said she looked at the screen and saw a misspelled word, which she decided to leave as it was because she did not want “nobody [sic] telling me what to do.” Student A.G. testified that the Respondent stood behind her and told her to go back and check her answers. A.G. said she checked and saw a mistake but did not change the answer because she did not know if it was allowed. The Respondent called student A.H., who testified that the Respondent stood behind her at one point and told her to check her answer. The Respondent called student K.H., who testified that she saw the Respondent leaning over A.H.’s test. The Respondent denied that she was reading test questions and answers and pointing out incorrect answers to the students. She said she was unable to read anything on the computer monitors while standing behind the students. She explained her proctoring technique of walking around the classroom behind students, whispering to them, and advising them to check their answers. She explained that she tends to use hand gestures in conversation and wondered if the students misinterpreted them as pointing and misinterpreted her general advice to check their answers as telling them a specific answer was wrong. The Respondent explained that she approached more than one student, including L.G., when they seemed to be having difficulty answering a question, and whispered a reminder that they could skip questions if they got stuck and go back to the skipped questions later, after finishing the test. This advice was standard and was in accord with the test instruction script read to the students by the test administrator, Ms. Trotter, at the beginning of the test session. The Respondent testified that she believed this advice served two purposes: students avoided wasting time, and they reviewed their answers after finishing the test, which the Respondent also suggested to students who finished the test with time to spare, again in accordance with Ms. Trotter’s script. The Respondent believed that nearby students observed her whispering her advice and wondered what she was whispering, so she also approached other students to whisper the same advice, even if they did not appear to be having difficulty, so they would not be suspicious about what she was telling the first student. Besides making some students suspicious anyway, the whispering necessarily distracted students taking the test to some extent, and used up some test-taking time. The evidence was not clear that the distraction and time taken by the whispering was significant or affected the test results. The Respondent admitted to approaching E.H., who finished the test early and was facing away from his computer trying to speak to another student. She said she attempted to redirect his attention to the test, and said something to the effect of, “I’m going to make sure that you’re reading your questions—I’m going to be reading right behind you.” The test administrator, Ms. Trotter, testified that she saw the Respondent talking to E.H. and approached. She testified that the Respondent told her E.H. had finished the test and that she was reading his test passage. The administrator testified that she told the Respondent her conduct was prohibited. The Respondent denied that she told Ms. Trotter she was reading the test passage. She testified that she only asked Ms. Trotter if she was allowed to tell E.H. that she was going to stand right behind him and make sure he read the questions. She testified Ms. Trotter told her she probably should refrain from doing that. The Respondent confided to Ms. Trotter that she was uncomfortable doing it, but rationalized that E.H. was “the type of student that you practically have to sit on him to get him to stay focused.” Taken as a whole, the evidence was not clear and convincing that the Respondent was reading test questions and answers and pointing out incorrect answers to these students during the test. Ms. Trotter and the students may have misinterpreted what the Respondent actually was doing and saying. The Administrative Complaint alleges that the Respondent violated rule 6A-10.081(3)(a) by failing to “properly secure her cellular phone[,] resulting in the phone’s alarm going off multiple times [and] disturbing the student test takers and breaking their concentration.” The evidence proved that the phone’s alarm went off two or, at most, three times. The Respondent thought she had secured the phone properly by turning it off, but the alarm sounded during the FSAT. She walked to where her phone was and turned off the alarm. She did not think it would alarm again, but it did, and she had to again go and silence it again. A phone alarm or ring was heard one or two more times during the test, but it was not clear from the evidence if the additional phone alarms were from the Respondent’s phone. The sounds of the phones that went off during the test caused a relatively brief disturbance and distraction for the students taking the test. It was not proven that they were enough to affect the test results. The Respondent’s proctoring techniques were problematic in that they were susceptible of misinterpretation. They may have resulted in technical violations of the prohibited activities agreement and the security agreement. Even if they did, there was no testimony that they resulted in conditions harmful to learning and/or to students’ mental and/or physical health and/or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this this 19th day of January, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2017. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Mariam Lambeth, Bureau Chief Bureau of Professional Practice Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2002.
The Issue The issues in the case are whether Respondent committed the offenses enumerated in the Administrative Complaint filed by Petitioner and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Respondent holds a valid Florida Educator’s Certificate No. 514964, covering the area of elementary education, which is valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher at Moton Elementary School in the Hernando County School District. She is admired and respected within Moton Elementary and is considered by her principal to be an excellent teacher. Her performance evaluations consistently reflect that she exceeds expected performances levels in every category. Her honesty and integrity are unquestioned. Respondent is viewed as the quintessential teacher who teaches simply because she loves working with children, watching them learn and grow. Students in the State of Florida are administered a standardized test known as the FCAT. A portion of that test is known as the norm referenced test, or NRT. The NRT is used to compare students in Florida with the achievement of students in other states. It can also be used, as a secondary tool, in the placement of individual students. Teachers are forbidden to give direct assistance to students on the FCAT and the NRT portion of the FCAT, although they can give general encouragement to a group of students. Respondent’s practice, during normal testing in the course of the school year, is to circulate throughout the classroom. If she sees a student that has incorrectly dealt with a problem, she will direct the student to review the problem, and to think about the answer. Respondent was trained in how to administer the FCAT, including the NRT portion. Specifically, she was told she was not to give assistance to students as they were taking the test. On the afternoon of the day in March of 2002 when concerns were raised about Respondent having assisted at least three students on the NRT portion of the exam, Principal Donnie Moen summoned Respondent to his office to ask her if anything unusual had happened during the test. Respondent told him nothing unusual had happened. Later that evening, Respondent wondered out loud to her husband whether she had provided any assistance during the test. The next day, Respondent got the class together and asked the students whether she had provided any directions or assistance on any specific questions. Three students raised their hands and told Respondent she had provided assistance on a specific question. Respondent then realized and now concedes that during the test, while circulating throughout the class, she told K.M. to check her answer to a certain question; told S.H. to go back to a certain question she had skipped over and check the answers to the questions that followed; and told F.M. he needed to check the aquarium problem. When she realized she had given these students assistance on specific questions, she told the students she had to go to the principal to report what she had done. The students asked whether she would get in trouble. She reminded the students she had always thought that honesty was the best policy, no matter what happened. Respondent then reported to the principal to tell him she had provided some assistance to three different students on specific questions. While Respondent avows she did not intentionally provide assistance to any students, Respondent did fail to distinguish between normal classroom testing procedures and standardized testing procedures. Respondent’s effectiveness as a teacher has not been diminished by her actions. She continues to enjoy widespread support from staff, parents and school administration, although, as a result of the incidents in the NRT portion of the FCAT, Respondent accepted a "last chance agreement" with the local school district. Part of that agreement was a 10-working day suspension without pay, and probation for a period of one year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order retroactively suspending Respondent's certificate for a 10-working day period, coupled with probation for a period of one year. Such recommended penalty should run concurrently with discipline imposed by the Hernando County School District upon Respondent in April of 2002. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
