The Issue The issue in this case is whether Petitioner, Robert D. Taylor, is eligible for the services offered by Respondent's Developmental Services Program.
Findings Of Fact Petitioner, Robert D. Taylor (Petitioner), filed an application with Respondent, the Department of Children and Family Services (Department), to receive services of the Department's Developmental Services Program. Based on information provided by Mrs. Tye, the suspected developmental disability/medical conditions which were the basis for Petitioner's potential eligibility were mild mental retardation and behavior problems. Following submittal of Petitioner's application, his eligibility for the Development Services Program was reviewed and determined by Dr. Bruce Crowell, a licensed psychologist employed by the Department. In order to determine Petitioner's eligibility, Dr. Crowell reviewed Petitioner's school psychological evaluations, all of which were completed prior to Petitioner's eighteenth birthday. According to Petitioner's school psychological evaluations, the Wechsler Intelligence Scale for Children, Third Edition, was administered to Petitioner in January 1993. Petitioner obtained a verbal Intelligence Quotient (IQ) of 80, a performance IQ of 82, and a full scale IQ of 79. Petitioner was also evaluated by Dr. Ruth Nentwig, a licensed psychologist, in June 16, 1999. As part of her evaluation, Dr. Nentwig administered the WAIS-III, an instrument that measures an individual's overall intellectual functioning. On the WAIS-III, Petitioner obtained a verbal IQ of 86, a performance IQ of 80, and a full scale IQ of 82. This evaluation was completed prior to Petitioner's eighteenth birthday. Based upon the statutory criteria, Petitioner is not eligible for services provided by the Department's Developmental Services Program. The IQ scores obtained by Petitioner place him in the low average to borderline intellectual functioning level and are not indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have to obtain a full scale IQ score of 69 or lower to be considered retarded and eligible for the Department's Developmental Services Program. Moreover, manifestation of such impairment would have to be documented prior to age 18 in order to demonstrate eligibility for the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, the Department of Children and Family Services, enter an order denying Petitioner's application for services through the Developmental Services Program. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 21st day of April, 2000. COPIES FURNISHED: Robert D. Taylor c/o Sarah Tye 1455 Winston Road Fort Myers, Florida 33917 Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be determined is whether Respondent, Tunisia Hairston, violated the provisions of section 1012.795(1)(d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent, Tunisia Hairston, holds Florida Educator’s Certificate 886347, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2017. At all times relevant to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a fifth-grade teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her mother, Annette Jones Walker, taught fifth grade in the classroom adjacent to hers. Respondent is in her thirteenth year of teaching and currently teaches first grade at the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator, Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified, that removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in Gadsden County with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools state-wide: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Eight students from Ms. Hairston’s 2011 fifth-grade class testified at hearing. Of those 8 students, two testified that they had received assistance from Ms. Hairston during the test. T.W. was a male student in Ms. Hairston’s class. He testified that “in a certain period of time, she would point out answers for me.” He testified that she did not say anything to him, but “I just got the meaning that she was telling me to check it over again.” He also stated that she told the whole class to go over their tests again at the end of the test. L.T. was a female student in Ms. Hairston’s class. She referred to Mr. Pitts or Ms. Dixon being in the room. She testified that after Ms. Dixon or Mr. Pitts left the room, Ms. Hairston would walk around and “point out questions that maybe we would get wrong.” She testified that Mr. Pitts or Ms. Dixon came in 3-4 times. L.T. also stated that while Ms. Hairston told the class at the beginning of the test they could go back and recheck their answers when they were finished, she did not make a similar statement at the end of the test. On the other hand, students K.M., A.F., R.A., M.C., D.Y., and A.C. all testified that they did not remember Ms. Hairston giving any type of hints during the science FCAT, and that she did not point to answers on the tests. None of the students, including T.W. and L.T., had incredibly clear memories of the test, which is understandable given that they took the test over three years prior to the hearing. To the extent that these six students remembered Ms. Hairston saying anything, they remember her telling them to go back and read the questions over, in terms of the whole test. Tamika Battles was the proctor assigned to Ms. Hairston’s room. Although there was some dispute about how many days she was present during the science part of the FCAT, it is found that she was present for one of the two testing sessions.5/ Ms. Battles does not recall Ms. Hairston saying anything out of the ordinary, but rather simply walked around telling students to stay on task, and making general statements about test taking. She did not ever see her point to a particular student’s test. Ms. Battles had been trained in testing protocols, and believed that they were followed. Ms. Hairston also denied coaching any of the students or pointing out incorrect answers. She acknowledged pointing toward test booklets on occasion, not to point to a specific answer but to remind a student to focus or stay on task. Her testimony was credible. After careful review of the evidence, it is found that Ms. Hairston did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. T.W. was in Ms. Hairston’s class for the second time, having failed fifth grade the year before. He testified that Ms. Hairston did not say anything to him, but rather that he understood her to mean something that she never verbalized. While L.T. testified that Ms. Hairston would point to a question and say, “check your answers again,” she tied these actions to times when Ms. Dixon or Mr. Pitts came in the room. Neither Mr. Pitts nor Ms. Dixon signed the security log for Ms. Hairston’s class for either day of the science examination. Ms. Dixon signed in for one testing session on April 13, but not for either day of science testing, and Mr. Pitts is not signed in for any session at all. Credible testimony was also presented to indicate that while perhaps Ms. Dixon was present at some time during testing (and not necessarily science), Mr. Pitts was not. In addition, L.T.’s written statement focuses more on math questions than science questions. It is entirely possible, given the vague nature of her answers, that she was confusing the science FCAT with some other testing experience. In any event, T.W. and L.T.’s testimony, taken together or apart, does not rise to the level of credible, clear and convincing evidence of providing inappropriate assistance to students during the FCAT. Further, the type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Hairston to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that testimony is uniform that she walked around the room, not that she stopped for significant periods at any student’s desk. Ms. Hairston’s explanation that she commonly points in order to gain a child’s attention and get them to focus is reasonable. Several years of Respondent’s performance evaluations were submitted. Only those that were complete were considered. Those evaluations indicate that Ms. Hairston consistently has achieved effective, highly effective, or outstanding evaluations during her tenure at Greensboro Elementary School.
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 Second Amended Administrative Complaint. DONE AND ENTERED this 6th day of February, 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 6th day of February, 2015.
Findings Of Fact Petitioner is 26 years old. She lives by herself. Her residence is 280 John Knox Road, Tallahassee, Florida. She has maintained that residence since September of 1993. Petitioner works at Pyramid Industries, a structured workshop. She is receiving training as a receptionist. In addition, she packages headrests and does other duties which are assigned to her at the workshop. Petitioner's employment with Pyramid Industries is for four days a week, 9:00 a.m. to 3:00 p.m., on each day. That employment began on January 8, 1994. Petitioner was referred to Pyramid Industries by officials of Vocational Rehabilitation. Petitioner has difficulty in controlling a tendency to use inappropriate language, which she described as "swearing". Petitioner's parents take her shopping, to include trips to the grocery store, assist the Petitioner in maintaining her checkbook, visit with Petitioner on a daily basis, and give her support and try to assist her in controlling her "swearing". When Petitioner's mother was pregnant with Petitioner, the mother contracted rubella. Subsequently, Petitioner was taken to a pediatrician at age one and one-half because Petitioner was not speaking. Petitioner was then taken to Yale Child Study in an effort to analyze her condition. No competent evidence was presented concerning the findings made by that organization. Petitioner participated in a program administered by Yale Child Study, which, from a layperson's perspective, was designed to address Petitioner's behavior. When attending schools in Connecticut, Petitioner rode a special school bus with other students. There is no competent proof in the record concerning the nature of the problem which Petitioner and the other students experienced which required them to have special transportation to school. When Petitioner was a child, her mother attempted to address Petitioner's problems of verbal skills by using vocabulary flash cards and engaging in conversations with Petitioner. As a child, Petitioner was removed from kindergarten and reading readiness class to a private school in which an Individual Education Plan (IEP) was prepared to address her problems. No competent evidence was presented concerning the nature of the problem experienced by Petitioner at that time. Under funding provided by the Guilford, Connecticut, public school system, Petitioner was provided a residential placement at Devereux Foundation for education in middle school in accordance with an IEP. Petitioner attended Guilford High School in Guilford, Connecticut and received a certificate pursuant to a special education program in lieu of a diploma. No evidence was presented concerning the nature of this special education program. Petitioner has sought developmental services from Respondent so that she might be provided transportation to certain outings, such as bowling, and would be allowed to participate in the outings with persons who receive developmental services. The basis for the claim for developmental services is the allegation that Petitioner suffers from retardation, as defined in Section 393.063(41), Florida Statutes. No competent evidence was presented to prove that Petitioner suffers from retardation, as defined in Section 393.063(41), Florida Statutes. When Petitioner initially made application for developmental services from Respondent, she provided supporting information, to include a document which was entitled "Report of Psychological Assessment-Intellectual Functioning", performed by the Devereux Foundation, Devon, Pennsylvania. Consistent with its policy, Petitioner considered information in that document, which was dated March 10, 1992. In particular, Respondent took cognizance of a Wechsler Intelligence Scale for Children, a test administered to Petitioner.1 Respondent considered this test and its results to be collateral source information. Respondent relied upon the test results in making a preliminary decision about Petitioner's entitlement to receive developmental services. At hearing, Respondent, in the person of its employee and policy spokesperson, continued to defer to the Wechsler Intelligence Scale for Children scores in the Devereux Foundation testing as a means of determining Petitioner's eligibility for developmental services. Preliminarily and at hearing, Respondent held to the opinion that the full-scale score of 72 obtained by Petitioner disqualified Petitioner from receiving developmental services. Respondent's preliminary decision and position at hearing, was to the effect, that the full-scale score of 72 in the Wechsler Intelligence Scale for Children obtained by Petitioner placed Petitioner above the range of persons who have significantly subaverage general intellectual functioning. When Respondent saw the full-scale score on the Wechsler Intelligence Scale for Children that had been administered by the Devereux Foundation to Petitioner, and having been persuaded by that information that Petitioner was not entitled to developmental services, it took no further action to review the material submitted by Petitioner or to seek additional material from Petitioner. Additional information which Petitioner provided to Respondent prior to hearing, on a form from the Department of Health and Human Services, Social Security Administration, which contained information purportedly related to a WAIS76-69-72 assessment of Petitioner's intellectual functioning, was not considered in determining the question of eligibility because Respondent was persuaded that this testing was done too late in Petitioner's life to be of value. The Social Security Administration form entitled "Disability Determination and Transmittal" makes reference to a report prepared on March 31, 1986 concerning Petitioner's intellectual functioning as purportedly prepared by Kenneth Gilstein, Ph.D. C/E. The Disability Determination and Transmittal form paraphrases that report. The actual report is not part of the Disability Determination and Transmittal form.2 Other than the reference to the full-scale score of 72 obtained by Petitioner in the Wechsler Intelligence Scale for Children, administered by the Devereux Foundation, Petitioner presented no other competent evidence in support of her application for developmental services, as such information would address Petitioner's general intellectual functioning, manifested during the period from conception to age 18. Petitioner presented no competent evidence concerning deficits in her adaptive behavior that existed concurrently with the measurement of her general intellectual functioning, as manifested during the period from conception to age 18. Neither party presented competent evidence concerning Petitioner's intellectual function to establish that Petitioner's performance was two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Respondent, as this proof might describe significantly subaverage general intellectual functioning by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's eligibility for developmental services. DONE AND ENTERED this 29th day of September, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 29th day of September, 1994.
The Issue The issues are whether Respondent is guilty of personal conduct that seriously reduces her effectiveness as an employee of the school board, in violation of section 1012.795(1)(j), Florida Statutes, or a violation of the Principles of Professional Conduct, as prohibited by section 1012.795(1)(j), by using institutional privileges for private gain and by failing to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6A-10.081(4)(c) and (5)(a); and, if so, what is the appropriate penalty.
Findings Of Fact Respondent holds educator certificate 1012045, which is valid through June 30, 2019. The certificate covers English and Reading. In March 2015, Respondent was employed by Miami-Dade County Public Schools as a language arts teacher at Brownsville Middle School, where she had taught since 2006. On March 2, 2015, outside the presence of other proctors, Respondent administered the 2015 Florida Standards Assessment in English Language Arts (Test), which is taken in a paper-based format. In the course of administering the Test, Respondent noticed that the subject of the writing prompt was William Shakespeare. Respondent did not read any passages set forth in the Test, but, that evening, Respondent advised her son that, when he took the same Test in Broward County the next day, he would be prompted to write about William Shakespeare, and he should do his best to finish the Test. Objectively, knowledge of the subject of the prompt would not confer upon Respondent's son an advantage over his peers. As the word, "prompt" implies, the citation to William Shakespeare was merely to induce the students to write something, not to display their knowledge of Shakespeare or his plays and poetry. On the other hand, Respondent's motive in disclosing the subject of the prompt to her son was to put him a little more at ease when he took the Test; from this perspective, Respondent's motive was to confer upon her son an advantage that would not be enjoyed by the other students who took the Test. Most parents, like Respondent, could encourage their children to do their best and finish the Test, but none could give them the small measure of assurance that comes with knowing the subject of the prompt ahead of taking the Test. Emboldened by his special knowledge, Respondent's son told his teacher, loudly enough that some of his classmates could hear, that the Test was easy and that it was about a poet named Shakespeare. The teacher ordered Respondent to be quiet and, secure in the knowledge that the students did not know who Shakespeare was, justifiably determined that this disclosure a few moments before starting the Test would not affect the validity of the results. The teacher reported the matter to her principal, and eventually the matter was referred to the Miami- Dade County School District. When asked, Respondent admitted to telling her son about the prompt. Eventually, Respondent agreed to a five- workday suspension, without a right to a hearing, as opposed to a proposed termination, subject to a right to a hearing. She has served her suspension and remains employed by the Miami-Dade County School District. Respondent is an experienced teacher, whose career has taken place within the era of high-stakes testing. This simple case pivots on an act that, in effect, verged on the inconsequential, but, in genesis, revealed a worrisome inattentiveness to the demands of one's profession in maintaining an unassailable boundary between public duty and private interest. The proper penalty must recognize the mereness of the act, but inculcate in Respondent an aversion to self-dealing.
Recommendation RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of a violation of section 1012.795(1)(g) and imposing a reprimand and a requirement that Respondent complete successfully 15 hours of teacher ethics or professionalism coursework, online or in person, by August 1, 2019, on her own time or using her personal leave. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2018. 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) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
The Issue Whether the application of Petitioner to participate in the Developmental Services Program offered by Respondent to benefit mentally retarded individuals should be granted.
Findings Of Fact An application filed on behalf of 20-year-old Janette Stone, Petitioner, to receive services of Respondent’s Developmental Services Program was denied by Respondent’s representative as documented in a letter dated January 16, 1997. Following submittal of Petitioner’s application, her eligibility for admission to the program was reviewed by Respondent’s staff psychologist, Filipinas Ripka. In order to determine Petitioner’s eligibility, Ripka reviewed psychological evaluations of Petitioner, three of which had been completed prior to Petitioner’s 18th birthday. One of the reviewed evaluations was made when Petitioner was 12 years of age. Another evaluation of Petitioner was completed when she was 15 years and eleven months of age. A third evaluation occurred when Petitioner was 17 years old. Petitioner received full-scale intelligence quotient (IQ) scores of 73, 72 and 73 respectively on the evaluations reviewed by Ripka. The evaluations were made on the revised Weschler Intelligence Scale For Children. The final evaluation, where Petitioner obtained a full-scale IQ score of 73, was made on the revised Weschler Adult Intelligence Scale. The IQ scores received by Petitioner were all within what is termed the borderline range of intellectual functioning, as opposed to test results indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have had to score 69 or lower to be considered retarded and eligible for Respondent’s developmental program. Further, manifestation of such impairments must be documented prior to age 18 in order to demonstrate eligibility for participation in Respondent’s program. Accordingly, Ripka determined that Petitioner was ineligible to participate in the Developmental Services Program offered by Respondent because Petitioner exhibited only borderline intelligence prior to age 18, instead of cognitive or intellectual function impairment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Respondent enter a final order denying Petitioner’s application. DONE AND ENTERED this 12th day of January, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Robin H. Conner, Esquire 1750 Highway A1A South, Suite B St. Augustine, Florida 32084 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32217 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue Whether Petitioner, Brevard County School Board (Petitioner or Board), has just cause to terminate Respondent, Emily M. Randall (Respondent or Randall) from employment with the school district.
Findings Of Fact The Parties Petitioner is the entity charged by law with governing and administering the Brevard County School District and is responsible for all employees of the school district. Disciplinary actions, such as the instant case, fall within the jurisdiction of the Board. At all times material to this case, Respondent was an employee of the School Board who served as an itinerant school psychologist. The Charges By letter dated December 9, 2014, Superintendent Binggeli recommended Respondent be terminated from her position with the Board. The letter claimed Respondent had been willfully absent without leave; had failed to follow directives of her supervisor, constituting gross insubordination and willful neglect of duty; had repeatedly lied to supervisors, constituting misconduct in office; and had reported to a disciplinary meeting in a condition violating the Drug-Free Workplace Policy, constituting misconduct in office. Respondent asserts that she should not be terminated for acts or omissions occurring prior to November 21, 2014, and that the Board failed to properly establish Respondent was “intoxicated” on that date. Background Information Petitioner employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. As a school psychologist, Respondent was responsible for conducting psychological evaluations for students who may require services for learning disabilities, emotional handicaps, or behavioral disorders. Psychological assessments are critical to the evaluation of exceptional students and serve to assist instructional staff to provide appropriate educational plans for students meeting criteria for support services. It is critical that such evaluations be timely performed, documented in accordance with law, and communicated to the appropriate personnel so that exceptional students may receive needed services. Eligible students do not receive exceptional services until all documented paperwork is completed. At all times material to this case, Respondent was required to complete her psychological educational assessments within 60 days. All school psychologists, including Respondent, were assigned as “itinerant” workers. Typically, school psychologists are directed to work at three or four schools. At each school the school psychologist teams with instructional staff, guidance counselors, and administrators to forge appropriate plans for exceptional students. The school psychologist is an essential member of the team. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with all those involved. Additionally, school psychologists must respond to crisis situations as directed by the coordinator of psychological services. It is essential that the Psychological Services Department (Department) know the schedule of all school psychologists and be able to reach them by telephone. Beginning in August of 2013, the coordinator of psychological services, Dr. Maggie Balado, gave all school psychologists her personal contact information so that absences from work could be promptly reported. School psychologists were given the option of contacting Dr. Balado directly or the Department’s secretary, Ms. Beyer, if they would be absent from their scheduled school assignment. Requiring school psychologists to contact the Department to report absences was a continuation of the policy that pre-dated Dr. Balado’s appointment to the coordinator position. In September of 2013, Dr. Balado also advised all school psychologists that they would be required to comply with the 60-day guideline for completing student evaluations. The requirement also pre-dated Dr. Balado becoming the coordinator. Performance Concerns In January of 2014, Dr. Balado learned that Respondent had been absent on December 17 and 19, 2013, and January 6 and 7, 2014. Because Respondent had not reported the absences as required by the Department policy, Dr. Balado reminded Respondent of the correct protocol for missing work and directed her to comply with the policy in the future. At all times material to the allegations of this case, Respondent had adequate leave time to miss work. Reporting the absence was still required by the policy. School psychologists are required to complete personnel allocation forms to allocate and track funding. Respondent failed to timely complete the funding forms despite being reminded. When Dr. Balado completed the performance evaluation for Respondent for the 2013-2014 school year, she noted that Respondent was out of compliance with four student evaluations and had 29 referrals that were to be completed for the school year. As a result, Dr. Balado rated Respondent as needing improvement in the categories of managing the learning environment, ethical leadership, and technology. Dr. Balado met with Respondent to go over the concerns and Randall indicated that she would work to improve her performance. Dr. Balado then met with Dr. Beth Thedy, assistant superintendent for Student Services, and decided to place Respondent on a professional development assistance plan to identify the issues that needed improvement and give Respondent a plan to show performance improvement. On August 18, 2014, Dr. Balado and Dr. Thedy met with Respondent to go over the performance issues and to discuss the improvement plan. Respondent did not raise any questions regarding what was expected. Despite being aware of the improvement plan, Respondent did not meet compliance standards for student evaluations. Moreover, Respondent never suggested to Dr. Balado or Dr. Thedy that an accommodation was needed in order for her to meet compliance standards. On October 2, 2014, Respondent did not timely respond to Dr. Balado’s attempts to contact her. Tangled Webs Were Woven On October 30, 2014, Respondent was assigned to be at Coquina Elementary School (Coquina Elementary) in Titusville. The school is located approximately 40 minutes from Respondent’s home, and she was to be there to watch a meeting with Enis Messick, the guidance counselor. After the meeting with Ms. Messick, Respondent planned to evaluate a student. Due to technical difficulties unknown to Respondent, Ms. Messick’s meeting was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. Respondent did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. Failing to report her absence in accordance with prior directives, violated the attendance policy for the Department. Respondent had adequate leave to be absent from work on October 30, 2014. Failure to telephone her absence or e-mail the proper persons was a violation of a reasonable directive given to her on more than one prior occasion. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent (encompassing Coquina Elementary School), contacted Dr. Balado and informed her that Respondent was not at her assigned school that day. Thereafter, Dr. Balado telephoned Respondent and asked her where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary School when she was not (Lie #1). Suspicious of this statement, Dr. Balado directed Respondent to go into the school office and call her back on the landline at the school. Although Respondent indicated she would do so, she did not (Lie #2). Dr. Balado then called Coquina Elementary’s Principal Katrina Hudson who advised that Respondent had not been seen at the school that day (hearsay later corroborated/admitted by Respondent at a later date). Respondent, next, told Dr. Balado that she went into the school’s office as directed but did not feel comfortable using the school’s telephone to call her back (Lie #3). Dr. Balado was understandably concerned that Respondent had misrepresented the events of October 30, 2014. Dr. Balado, next, communicated the events of October 30, 2014, to Dr. Thedy who placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, a meeting was held to review the events of October 30, 2014. Present were Dr. Thedy; Jim Hickey, director of Human Resources and Labor Relations; and Respondent. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30, 2014, and that she could prove it (Lie #4). Respondent said Enis Messick would verify she had been at Coquina Elementary on October 30, 2014 (Lie #5). Ms. Messick did not see Respondent at the school on the date in question. Ms. Messick corroborated that Respondent had phoned her to advise that she would not be at the school. Respondent later stated that she had sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014 (Lie #6). None of Respondent’s initial accounts of the events of October 30, 2014, were true or justified not reporting her absence as required by her supervisor, Dr. Balado. Finally, when Mr. Hickey requested that Respondent provide a written statement setting forth the events of October 30, 2014, Respondent relented and admitted she had previously lied. The Aftermath Following Respondent’s admission and further consideration of her behavior by Mr. Hickey, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. At the November 12, 2014, meeting, Respondent claimed that she had filed for an accommodation to assist her so that she could timely prepare the reports required by her job. Respondent claimed that in 2010, she had made Petitioner aware of her need for an accommodation due to a wrist problem that made typing difficult. To address the accommodation request in 2010, Petitioner provided Respondent with a dictation software program known as Dragon. The software allowed Respondent to dictate the portions of her reports that required typing. After the software was provided, Respondent did not renew her request for an accommodation nor did she suggest the solution provided by the Board was inadequate to meet her needs. At all times material to the conversations between Respondent and Dr. Balado, Randall never mentioned a physical limitation kept her from meeting the timelines applicable to her work. Respondent’s late-mentioned comment regarding this 2010 accommodation has not been deemed credible or persuasive as a basis for not completing her work assignments in a timely manner. The performance improvement plan developed by Dr. Thedy and Dr. Balado would have appropriately addressed the deficiency in Respondent’s work. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the Board. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding Respondent’s performance and behavior. In anticipation of the November 21, 2014, meeting, Petitioner’s staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze to her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as Petitioner hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of the offer. On November 21, 2014, Respondent, her husband, and her lawyer met with Mr. Hickey, Dr. Thedy, and Dr. Balado. Based upon Respondent’s behavior and demeanor at the meeting, Petitioner’s attendees became suspicious of Respondent’s condition. Respondent’s demeanor shifted from crying and emotional to questioning and anger. Respondent was disheveled, her eyes were red and watery, her skin was flushed, and she was shaking. Coupled with what Mr. Hickey, Dr. Thedy and Dr. Balado noted was a strong odor of alcoholic beverage, Respondent’s demeanor gave Petitioner’s employees the concern that Respondent was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. After being directed to undergo a reasonable suspicion breathalyzer examination, Respondent submitted to the test performed by Kathy Krell, the Drug and Alcohol Program Administrator for Petitioner. Ms. Krell has been fully-trained to administer breathalyzer examinations, has held the position with the Board for over 20 years, and has performed thousands of tests, such as the one given to Respondent. Ms. Krell performed Respondent’s examination in accordance with all testing guidelines and as routinely completed in the regular course of business for the Board. The final results of Respondent’s breathalyzer demonstrated that on November 21, 2014, at approximately 2:45 p.m., Respondent had an alcohol level of .104. This level is above the legal level for driving in the State of Florida. Respondent voluntarily submitted to the breathalyzer examination and has provided no credible explanation for the test results. Instead, Respondent challenged the results and maintains that her conduct, demeanor, appearance, and test results do not establish that she was intoxicated on November 21, 2014. It is determined that contrary to Respondent’s assertion, on November 21, 2014, at approximately 2:45 p.m., while attending a school meeting on School Board property to address her future employment with Petitioner, Respondent was under the influence of some alcoholic beverage or substance such that she was, in fact, impaired or intoxicated. To suggest that she was fully capable of functioning with an alcohol level of .104 is both contrary to common sense and the facts of this case. Respondent failed to maintain a professional demeanor and was unable to maintain a consistent appearance and behavior. When the results of the breathalyzer were made known to the parties, Petitioner withdrew the disciplinary offer then pending for Respondent’s acceptance. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to Petitioner’s employment assistance program (EAP). The EAP is available to Board employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges their issue, participates, and agrees to seek help for their problem, the employer typically works to return the employee to the work environment. In this case, Dr. Binggeli recommended that the Board terminate Respondent’s employment on December 9, 2014. At its December 16, 2014, meeting, Petitioner voted to terminate Respondent’s employment with the school district and the instant administrative challenge to the decision ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s employment with the Brevard County School District be suspended until such time as Respondent can show that she has successfully completed continuing educational courses related to the ethical standards expected of her, that her salary be frozen at the level of compensation for the 2013-2014 school year, that she does not receive any back pay or other compensation for the duration of her suspension, and that she be placed on a professional improvement plan to assure monitoring and compliance with all requirements of her job. DONE AND ENTERED this 30th day of December, 2015, 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 December, 2015. COPIES FURNISHED: Wayne L. Helsby, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Scarlett G. Davidson, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 (eServed) Joseph E. Culmer, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 Dr. Desmond K. Blackburn, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade. Respondent's improper assistance to his students prevented school officials from obtaining an accurate measurement of the academic abilities of his students. The test results were invalidated and the students were retested. According to the parties, a newspaper article related to the matter was published in a local newspaper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code Rule 6B-1.006(3)(a), and placing him on probation for a period of one year. DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of May, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent’s employment as a school psychologist should be terminated on the grounds set forth in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Respondent was a school psychologist employed by Petitioner pursuant to a continuing contract. Respondent was first employed by Petitioner in 1968 as a guidance counselor. In 1974 she began her employment as a school psychologist. At all times relevant to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) and subject to the provisions of the collective bargaining agreement between Petitioner and UTD. At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 1001.32, Florida Statutes (2005).2 For administrative purposes, Petitioner’s school district is divided into regions. R3 is the region to which Respondent has been assigned at the times relevant to this proceeding. In R3, each school, whether an elementary, middle, or high school, has a CST. Each such team includes an administrator, a school counselor, one or more special education teachers, a school psychologist, and other specialists as appropriate. Typically, a child is referred to the CST because he or she is experiencing difficulties, such as academic or behavioral problems. The child’s case is discussed at a CST meeting and the CST decides whether to refer the child to a school psychologist for a psychoeducational evaluation. If that decision is in the affirmative, certain background information is put together and that information is sent to the R3 office to be opened as a case file. The assigned school psychologist receives the case file, performs a psychological evaluation on the child, writes a report detailing his or her findings, and returns the case file to a staffing specialist. The staffing specialist schedules another CST meeting to determine the next appropriate step in the process, which may result in the preparation of an Individualized Education Plan (IEP) for the student. Petitioner has adopted a manual titled “Psychological Services Procedures Manual” (the Manual) that defines the psychological services provided by Petitioner and delineates the procedures school psychologists are to follow in testing, evaluating, referring and placing students who qualify for the ESE program. The Manual also provides an evaluation report format that school psychologists are to follow. School psychologists are required to keep certain records and file certain monthly reports. They are required to report the number of evaluations and other services performed during the month on a form titled “Psychological Services Monthly Report.” They are also required to keep a case log by school for each student with an open case file at that school. The case log contains the names of children whose cases are opened at each school and the status of the case. The case log is updated monthly to reflect the status of each case. A school psychologist is an essential member of the CST and is a critical player in the development of IEPs for students who qualify for ESE. Time constraints are placed on the CST and on each school psychologist. Petitioner’s policy is that the period from the initial referral of a child to a CST to the development of the child’s IEP (for those children who qualify for ESE services) should not exceed 90 days. Since September 2004, Florida Administrative Code Rule 6A-6.0331 has required that students who are suspected of having a disability must be evaluated within a period of time, not to exceed 60 school days in which the student is in attendance. School psychologists are instructed to make every effort to complete the psychological evaluation report and to submit the report for typing within five days after the evaluation is completed. Typically, each school psychologist in R3 is responsible for two or three assigned schools. In an average week, school psychologists spend most of their time at their assigned schools, where they are required to keep the same work hours as the instructional personnel assigned to that school. At the school, the school psychologist meets with other school personnel (whether informally or as part of a CST) and evaluates students. Each school psychologist has at least one day a week at the R3 office, where he or she writes reports and consults with other R3 personnel as needed. During the R3 office day, new cases are assigned and special assignments are made. EVALUATIONS THROUGH SCHOOL YEAR 2001-02 From the school year 1990-91 through the school year 2000-01, Martha Boden was Respondent’s supervisor. For each of those school years, Ms. Boden evaluated Respondent’s performance. During those years, Ms. Boden received a myriad of complaints about Respondent’s job performance. Several school principals testified that they would not want Respondent to serve as their school psychologist based on unfavorable experiences with Respondent during the school years Ms. Boden served as her supervisor. Despite the complaints she received about Respondent, Ms. Boden evaluated Respondent’s performance as being acceptable for each year Ms. Boden supervised Respondent. Each annual evaluation of Respondent by Ms. Boden was a summative evaluation in the sense that Ms. Boden considered all information, both good and bad, that she had about Respondent’s job performance. Ms. Boden’s conclusion that Respondent was an acceptable employee for each of the years that she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the school years 1990-91 through 2000-01 does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance was problematic and provides a context for subsequent evaluations. Ms. Boden exerted considerable effort in attempts to help Respondent improve her job performance. Respondent did not take advantage of the help Ms. Boden offered. Respondent knew from Ms. Boden that she was required to produce timely, accurate psychological evaluations and monthly reports. Myra Silverstein supervised and evaluated Respondent for the 2001-02 school year. That evaluation was also a summative evaluation and also concluded that Respondent was an acceptable employee. Ms. Silverstein’s conclusion that Respondent was an acceptable employee for the year she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the 2001-02 school year does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance continued to be problematic and provides additional context for subsequent evaluations. DELAYED EVALUATIONS AND REPORTS During the school years subsequent to the 2001-02 school year Respondent failed, on multiple occasions, to timely evaluate and complete reports for children who were being evaluated for ESE services. At Olinda Elementary School, a student was tested by Respondent on February 23, 2004 and Respondent did not close the case until January 12, 2005. Partly because of that delay, the principal of Olinda Elementary School requested that a school psychologist other than Respondent be assigned to her school. During the 2004-05 school year, Respondent was assigned to evaluate two students at Miami Springs Elementary School. More than a year passed between the time Respondent received her assignment and the time she did the testing. During the 2003-04 school year, Respondent was assigned a case in January 2004. Respondent did not do the testing on this student until July 2004 and she did not complete her report until January 2005. At Orchard Villa Elementary, Respondent was assigned a case during the summer of 2004. As of June 2005, the case had not been closed. There was no justification for the lapses in time between the dates of assignment and the dates of completion of Respondent’s reports.3 The CSTs could not determine appropriate strategies for the students Respondent was assigned to evaluate without a psychological report. Respondent’s lapses between her assignments and the completion of her reports delayed the staffing of those students and delayed the development of and the provision of appropriate services for those students. Mary Paz, the Instructional Supervisor at the R3 office became Respondent’s supervisor in March 2004. After she assumed that responsibility, Ms. Paz received multiple complaints from principals and parents as to Respondent’s repeated failures to timely complete evaluations and/or reports. In May 2004, Ms. Paz received a memorandum from an assistant principal at Banyan Elementary School regarding an incomplete evaluation report done by Respondent. Material in the case file established that the Bender Gestalt evaluation was administered, but the Respondent’s report made no mention of that diagnostic tool. Another school psychologist was called in to complete Respondent’s report. Pamela Sanders-White was the principal of Orchard Villa Elementary School during the 2004-05 school year. Respondent was the school psychologist for that school during that school year. Ms. Sanders-White received complaints from teachers, parents, and students pertaining to Respondent’s failure to timely complete her work. Ms. Sanders-White requested that a school psychologist other than Respondent be assigned to her school for the school year 2005-06. CONFRONTATIONS AT IEP MEETINGS Petitioner presented evidence that Respondent argued with other professionals during several CST meetings and that she walked out of one such meeting. Petitioner also presented evidence that a few of Respondent's professional opinions were rejected by other professionals. That evidence, while accepted as credible, did not prove or tend to prove that Respondent was incompetent or that she was insubordinate, which are the charges alleged in the Notice of Specific Charges. Consequently, the proposed findings in paragraphs 22, 23, 25, and 26 of Petitioner's Proposed Recommended Order have not been considered by the undersigned in reaching the ultimate findings of this Recommended Order. INACCURATE REPORTS Gail Pacheco has been the Chairperson for Psychological Services in R3 since the 1989-90 school year. She is not a supervisor of the R3 school psychologists, but she works with their supervisors as the supervisor’s designee in resolving problems. At Joseph Jackson’s request after he became Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports prepared by Respondent and monitored all 28 school psychologists in R3 for compliance with time frames for testing, preparation of psychological reports, and case closure. Each of the 30 reports prepared by Respondent and reviewed by Ms. Pacheco had at least one error.4 On May 28, 2003, Mr. Jackson requested all school psychologists, including Respondent, to select a sample evaluation report for review by the respective region chairperson. Respondent did not timely comply with Mr. Jackson’s request. When she did comply, the evaluation report she submitted contained numerous errors, including Respondent’s erroneous conclusion as to the student’s qualification for services.5 In December 2003 Dr. Sue Lee Buslinger-Clifford became the Instructional Supervisor of Psychological Services at the District office. Her job duties included the supervision of all school psychologists, which included the authority to give directives to all school psychologists, including Respondent. Dr. Buslinger-Clifford’s testimony, considered with the other evidence presented by the parties, established that Respondent failed to follow District procedures in the use of two personality or emotional assessments instruments in evaluating students. Respondent’s reports were not individualized for each student, with most of her reports using similar, standardized language. In the academic assessment of students, the reports should identify the needs of the child, the skill level of the child, and specific recommendations. Respondent’s reports often contained the same recommendations written in general, non- specific language that did not recommend the implementation of specific services for the student. Some reports were missing information and others contained limited information that was not helpful for the teacher and the members of CSTs. In addition to typographical and grammatical errors, Respondent’s reports contained test use and procedural errors. On one evaluation report Respondent misinterpreted evaluation data, which caused her to reach an erroneous conclusion as to a student’s eligibility for services.6 On some occasions, Respondent’s narrative report was inconsistent with the report of the evaluation data. Respondent had difficulty managing her time. Her student evaluations generally took longer than they should have. Dr. Buslinger-Clifford reviewed certain reports submitted by Respondent and advised Respondent as to corrections that needed to be made. Respondent did not comply with that advice. Mr. Jackson, as Respondent’s supervisor, reviewed her monthly reports for August through October, 2003, and determined that Respondent’s productivity was greatly below that of the average school psychologist, despite having a similar caseload. Mr. Jackson further determined that Respondent had a backlog that was growing each month; that some of the reports were incomplete; and that some of the reports were inconsistent or misleading. On October 31, 2003, Mr. Jackson notified Respondent in a memorandum of serious concerns that he had related to her poor job performance, and he directed Respondent to provide him with answers to certain questions pertaining to her performance7 no later than November 10, 2003, at 9:00 a.m. Mr. Jackson requested information as to six specific issues. First, he wanted a written response as to an alleged incident at Westview Middle School during which Respondent got into an argument with a staffing specialist in front of a student’s parents during a CST meeting. Second, he wanted to know why three identified cases had not been completed in a timely manner and ordered her to attach the psychological reports for those students with her response. Third, he wanted her to explain her lack of productivity and provide Medicaid forms for nine students who she had evaluated. Fourth, he wanted Respondent to provide Ms. Pacheco with a copy of a recent psychological report so Ms. Pacheco could review it. Fifth, he wanted an explanation as to why she had not provided a psychological report for review when such a report had been requested of her on three occasions. Sixth, he wanted Respondent to explain why she continued to use an instrument (WIAT) that she allegedly could not score. On November 7, 2003, Respondent responded to Mr. Jackson’s memorandum and requested a 60-day extension of the deadline for her response to his questions. Respondent’s response included the following: You have demanded a written response in five (5) days to a long list of you [sic] allegations, to which you offered not [sic] proof, only conjecture, opinions, and a partially extracted table; that was delivered by registered mail on Saturday afternoon at my residence. I feel sure that this memorandum was written and typed on the MDCPS [Miami-Dade County Public School] time clock. No consideration was given for my time clock, or the release of my daily time schedule to complete such a task. The sixty-day extension period is therefore needed to consult my archives in order to give you a detailed and accurate response. I need ample time to secure financial expense; legal advisement and representation; and a typist (all of which I will be seeking reimbursement), before undertaking such a task. Mr. Jackson gave Respondent until November 14, 2003, to respond to his memorandum. That was a reasonable deadline. Respondent did not meet the deadline established by Mr. Jackson. On December 17, 2003, Respondent responded in writing to the questions Mr. Jackson had asked in his memorandum.8 Mr. Jackson was not satisfied with Respondent’s response and continued to have concerns about her job performance. Mr. Jackson’s dissatisfaction with Respondent’s response was reasonable. His continued concerns about her job performance were also reasonable. JANUARY 2004 CONFERENCE FOR THE RECORD On January 15, 2004, Mr. Jackson had a Conference for the Record (CFR) with Respondent. A CFR is a meeting of record, held by a supervisor with an employee who is or may be under investigation for possible disciplinary action, to apprise the employee of the review of the record and the possible disciplinary action, and to give the employee an opportunity to respond or append the record. At the CFR conducted January 15, 2004, Mr. Jackson discussed his continued concerns with Respondent and considered her responses (both written and verbal). Mr. Jackson prepared a memorandum dated January 22, 2004, which summarized the events that transpired at the CFR held January 15, 2004. In the memorandum, Mr. Jackson gave Respondent the following directives: Your are to be professional and courteous to all staff at all times. You are also to represent the school system in a positive light at all times. This directive begins immediately and continues indefinitely. You are to complete evaluations of each child within a week of the beginning of testing, unless approved by the Executive Director or the Instructional Supervisor of the Division of Psychological Services or the ACCESS Center 3 Chairperson. Additional testing must be approved by the Chairperson which may be suggested by you and/or the Chairperson. The additional testing is to be completed within one week of notification of the determination for more testing. A completed report of each evaluation must be submitted for typing to the ACCESS Center within two weeks after the evaluation is completed. (Day that the last assessment instrument has been administered.) All evaluations are to be correctly reflected on your monthly report (log). This directive is ongoing and will be reviewed by the 10th of each month, for the next three months. Your monthly reports/logs are to reflect increased productivity beginning with the February report, averaging a minimum of 10 psychoeducational evaluations per month, unless approved by the Executive Director. Your productivity will be reviewed monthly. If you do not have the assigned cases, you are to request cases from your ACCESS Center chairperson. You are to complete a minimum of 10 psychological evaluations during the next four weeks. The Psychological Services Monthly Report, with a copy of the completed typed report for each of the 10 evaluations attached, is to be submitted to the office of the Executive Director of the Division of Psychological Services on February 27, 2004. All psychological evaluation reports are to be completed and delivered to Ms. Gail Pacheco for review within two weeks after the day the last assessment instrument has been administered. All corrections are to be completed within two school days after they have been received from Ms. Pacheco. No case should be given to the staffing specialist for staffing until the case has been approved by Ms. Pacheco. This directive is to be implemented immediately and will be reviewed randomly by the Executive Director of the Division of Psychological Services during the next six weeks. Reviewing of all reports by the ACCESS Center Chairperson and timelines for completion will be adjusted as needed. You were referred to the Employee Assistance Program through a Supervisory Referral for performance of professional duties related to assignment failures. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to your professional status with Miami-Dade Public Schools. In the memorandum dated January 22, 2004, Mr. Jackson advised Respondent that he would review the information in the CFR with appropriate school officials and that he would take the following additional action: All directives will be monitored as stated in the conference and in this memorandum. If you successfully complete the directives, the requirements of the directives will be adjusted to reflect the requirements of all ACCESS Center based school psychologists. If you do not successfully complete the directives, additional directives will be added to assist you in becoming the desired professional you are capable of being. MARCH 2004 CFR Mr. Jackson conducted a second CFR with Respondent on March 19, 2004. Petitioner established that there continued to be concerns with all six of the directives given to Respondent following the January 2004 CFR. As to directive 1, Mr. Jackson continued to receive complaints as to Respondent’s interaction with school-based staff. Petitioner established that Respondent failed to comply with directives 2, 3, 4, and 5. Respondent did not timely complete the evaluation of each child to whom she was assigned nor did she seek or obtain approval from the R3 chairperson for additional testing. Respondent did not submit completed psychological evaluation reports to the R3 office within two weeks of completing all of the evaluations. Respondent’s case log report reflects that 10 cases were completed but only eight evaluation reports were submitted. None of the evaluation reports on Respondent’s monthly case log report were submitted for review as required. Psychoeducational evaluation reports were not timely submitted to Ms. Pacheco for review. Numerous errors were reflected on the psychoeducational evaluation reports that were submitted. Ms. Pacheco returned the reports to Respondent with instructions to correct the reports. Respondent did not return corrected reports to Ms. Pacheco. Respondent declined to participate in the Employee Assistance Program, which was offered in Directive 6.9 In addition to re-issuing the directives that had been given at the January CFR, Mr. Jackson issued directives requiring Respondent to report to work on time, to report her presence at the school site to a designated contact person, and to complete a Professional Improvement Plan (PIP) that was based on specified indicators pursuant to Petitioner’s Professional Assessment and Comprehensive Evaluation System (PACES).1 In addition, Mr. Jackson changed Respondent’s schedule to reduce the number of schools she would have to travel to in order to conduct the number of evaluations Mr. Jackson had directed her to evaluate each month. This change was made in an effort to assist Respondent meet her productivity directives. MAY 2004 CFR Mr. Jackson conducted a CFR with Respondent on May 7, 2004. Petitioner established that Respondent continued to fail to meet the directives that Mr. Jackson had imposed as to productivity. Respondent’s evaluation reports and monthly case reports continued to contain procedural and substantive errors. Respondent failed to submit copies of her evaluation reports to Mr. Jackson’s office as directed. Mr. Jackson issued revised directives to Respondent. Those revised directives, which were similar to the previously issued directives, are set forth in Petitioner’s Exhibit 143 and are incorporated herein by reference. Again, Respondent was directed to complete a PIP on specified indicators on the PACES evaluation system. The PIP Respondent was required to complete was admitted into evidence as Petitioner’s Exhibit 144. ANNUAL EVALUATION FOR 2003-04 SCHOOL YEAR On May 7, 2004, Mr. Jackson completed his annual evaluation of Respondent’s job performance for the 2003-04 school year.11 Part A of the evaluation form contains six domains. Mr. Jackson rated Respondent as meeting standards for each of the six domains in Part A. Those domains are “Preparation and Planning”, “Management”, “Human Relationship”, “Professional Practice”, and “Contribution to School Improvement”. Part B contains the seventh domain of “Professional Responsibilities”. For that seventh domain, Mr. Jackson rated Respondent as not meeting standards. Mr. Jackson’s overall rating of Respondent was that she did not meet standards. On the PACES evaluation form, the evaluator can make one of the following three recommendations: “Recommended for Employment”, “Not Recommended for Employment”, or “Performance Probation Carry-over.” Mr. Jackson recommended the third option, which meant that Respondent’s performance probation was to be carried over to the next school year. Respondent’s May, June, July, and August, 2004, case reports established that she continued to fail to meet productivity directives. She typically did not timely submit reports for typing and she did not complete the assigned number of evaluations. She developed a backlog for her assigned cases. SEPTEMBER 2004 CFR On September 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. Dr. Buslinger-Clifford attended that meeting. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 165 and are incorporated by reference. Included in the directives was another PIP (Petitioner’s Exhibit 167). Mr. Jackson ordered Respondent to return 17 cases that had been assigned to her to Dr. Buslinger-Clifford for reassignment. On September 24, 2004, Respondent complied with that order and those cases were reassigned. Also as directed, Respondent reviewed with Dr. Buslinger-Clifford Respondent’s backlog of 26 other cases. Dr. Buslinger-Clifford observed that Respondent’s case files were disorganized, some contained mold, and some contained pieces of dead roaches. Respondent submitted 26 reports for typing in mid October 2004. Her October 2004 case report fails to reflect that those cases were submitted for typing. NOVEMBER 2004 CFR On November 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. She had not completed her PIP; the psychological evaluation reports she submitted contained typographical, grammatical, and procedural errors; and she did not submit contact information she had been instructed to submit. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 188 and are incorporated by reference. On November 16, 2004, Mr. Jackson reprimanded Respondent in writing. That reprimand is set forth in Petitioner’s Exhibit 189, which is incorporated herein by reference. On November 17, 2004, Respondent provided Mr. Jackson with a report listing the cases that had been assigned to her. That list was not accurate because Respondent failed to list five cases that had been assigned to her. Respondent continued to fail to evaluate cases that had been assigned to her on a timely basis. Respondent’s case status reports for January and February 2005, did not follow district polices. From those reports, Mr. Jackson could not determine the status of cases that had been assigned to Respondent. FEBRUARY 2005 CFR For the school year 2004-05, Robert Kalinsky was the personnel director for R3 and DanySu Pritchett was the Administrative Director of Petitioner’s Office of Professional Standards (OPS). On February 15, 2005, Ms. Pritchett conducted a CFR with Respondent at the OPS offices. Respondent, Mr. Kalinsky, Mr. Jackson, Dr. Bulsinger-Clifford, and two union representatives also attended the CFR. Petitioner’s Exhibit 206, a summary of that CFR, is hereby incorporated by reference. The summary of that CFR reflects the following statement by Ms. Pritchett: The record reflects that you have been repeatedly insubordinate and grossly insubordinate to directives issued to you by Mr. Jackson. Additionally, the record reflects your failure to complete and submit psychological evaluation reports [for] review by the required timelines and your failure to submit monthly reports/logs. . . . Mr. Kalinsy received numerous complaints from school- based personnel about Respondent’s performance. Mr. Kalinsky had difficulty locating Respondent on one occasion because Respondent was not at her scheduled location and had not informed her contact person at the school where she was going. He had difficulty locating her on another occasion because she did not timely report to work at the school site she was scheduled to serve. On March 2, 2005, Mr. Kalinsky wrote Respondent a memorandum advising her that she was in violation of directives that had been issued to her at prior CFRs. That memorandum, Petitioner’s Exhibit 214, is hereby incorporated by reference. On March 5, 2005, Mr. Kalinsky revised Respondent’s schedule so that Tuesdays, Wednesdays, and Thursdays of each week were reserved for completion of prior assignments. Mr. Kalinsky directed Respondent to submit five completed cases to R3 each Friday. Mr. Kalinsky had the authority to issue that directive to Respondent. The directive was reasonable. On Friday, March 18, 2005, Respondent failed to comply with that directive. Respondent also failed to comply with Mr. Kalinsky’s directive on Friday, March 25, 2005. Mr. Kalinsky issued another memorandum to Respondent on March 31, 2005, for failing to comply with his directive. That memorandum, Petitioner’s Exhibit 222, is incorporated by reference. On May 27, 2005, in the PACES annual evaluation for the School Year 2004-05, Mr. Kalinsky rated Respondent as not meeting standards. Respondent had consistently failed to follow directives that had been issued to her as to timelines and productivity, had failed to adhere to Petitioner’s policies and procedures, and had turned in reports that contained inaccuracies, errors, and misleading information. Mr. Kalinsky did not recommend Respondent for further employment because he reasonably concluded that Respondent had not been fulfilling her professional responsibilities. Respondent’s supervisors recommended the termination of her employment as a school psychologist. Petitioner followed all applicable procedures in processing that recommendation, which resulted in the School Board action at its regular meeting on May 18, 2005, that underpins this proceeding. Dating from Ms. Boden tenure as Respondent’s supervisor in the 1990s, Petitioner made reasonable efforts to try to help Respondent improve her performance. Respondent consistently rejected those efforts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order adopting the findings of fact and conclusions of law set forth herein. It is also RECOMMENDED that the Final Order terminate Respondent’s employment. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2006.
