Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL 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 20th day of October 1994.
The Issue The issue is whether Petitioner satisfies the statutory definition of mental retardation in Section 393.063(42), Florida Statutes (2000), and is eligible for services from the Developmental Disabilities Program (the "DDP"). (All chapter and section references are to Florida Statutes (2000) unless otherwise stated.)
Findings Of Fact Petitioner was born on March 2, 1977. He submitted an application for services from the DDP in September 2000. In a letter dated November 17, 2000, Respondent denied Petitioner's application. Petitioner is not eligible for services from the DDP because he does not meet the statutory definition of mental retardation or any other categories of Developmental Disabilities. The other categories of eligibility for services from the DDP are autism, cerebral palsy, spina bifida, and Prader- Willi Syndrome. Petitioner's application for services from DDP is based solely on his claim of mental retardation. A diagnosis of mental retardation, in relevant part, requires Petitioner to satisfy two requirements before the age of 18. First, Petitioner must demonstrate a performance level that is two or more standard deviations below the mean on a standard intellectual assessment tool. A score of 70 or below, plus or minus 2 or 3 points, is two or more standard deviations below the mean on the Stanford Binet intelligence test. The second requirement Petitioner must satisfy requires Petitioner to demonstrate significant deficits in adaptive behavior tests. A score of 70 or below on the Vineland adaptive behavior test demonstrates significant deficits in adaptive behavior. Petitioner submitted with his application to Respondent documentation of seven different incidents in which Petitioner was assessed for possible mental retardation before the age of None of those evaluations satisfies both statutory requirements for mental retardation. On January 24, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 90 on the Stanford Binet test and a 94 on the Vineland test. These scores are not two standard deviations below the mean, and they make Petitioner ineligible for services from the DDP. On June 2, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 68 on the Stanford Binet test. A score of 68 is two standard deviations below the mean. However, the examiner failed to perform the adaptive behavior portion of the test. On July 28, 1982, a licensed psychologist evaluated Petitioner. Petitioner scored an IQ of 60 on the Stanford Binet test, which is more than two standard deviations below the norm. However, Petitioner scored an 86 on the Vineland test. A score of 86 does not demonstrate significant deficits in adaptive behavior. On October 5, 1982, a pediatric neurologist examined Petitioner and diagnosed Petitioner with mild diffuse brain dysfunction and attention deficit disorder. The pediatric neurologist is not a licensed psychologist and therefore did not perform the Stanford Binet or Vineland test to determine whether Petitioner was retarded within the meaning of Section 393.063(42). On February 5, 1988, licensed psychologists evaluated Petitioner for retardation. The copy of the psychologists' report submitted by Petitioner referred to another evaluation in July 1985. In the July 1985 evaluation, Petitioner scored an IQ of 69, but no evidence was available concerning the results of the adaptive behavior score in the Vineland test administered in July 1985. On February 5, 1988, a licensed psychologist performed a separate evaluation of Petitioner. Petitioner scored an IQ of 71 on the Stanford Binet test. However, the psychologist did not administer the Vineland test. On May 27, 1988, a licensed psychologist saw Petitioner. This psychologist opted not to test Petitioner again because he had been tested so often. However, the psychologist concluded that one could safely rule out the issue of educable mentally handicapped. She further concluded that the overall primary handicap appears to be that of an emotional nature. On December 9, 1993, Petitioner was evaluated again. Petitioner scored an IQ of 71 on the Stanford Binet test and a 48 on the Vineland test. The copy of the report submitted by Petitioner does not include the name or credentials of the person performing the tests and making the diagnosis. The report also fails to include a summary needed by Respondent to determine whether the evaluation was a valid test.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued that Petitioner is not eligible for services from the DDP at this time. DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of May, 2001. COPIES FURNISHED: Nancy A. Bishop, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Lon Thomas c/o Linda Williams 8217 Esperanza Street Orlando, Florida 32817 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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 At issue in these proceedings is whether petitioner suffers from "retardation," as that term is defined by Section 393.063(41), Florida Statutes, and therefore qualifies for services under Chapter 393, Florida Statutes, the "Developmental Disabilities Prevention and Community Services Act."
Findings Of Fact Petitioner, Lucky Graham (Lucky), was born September 18, 1973, and was, at the time of hearing, 19 years of age. Lucky has resided his entire life with his grandmother, Susie Griggs, in Miami, Dade County, Florida, and has been effectively abandoned by his mother and father. When not attending the Dorsey Skill Center, a program offered by the Dade County Public School system to develop minimal skills necessary to acquire a vocational skill, Lucky spends most of his free time alone in his room, and does not interact socially or play with other children beyond his immediate family. Notwithstanding, Lucky does interact with members of his immediate family; attend family outings; contribute to minor chores around the house such as hanging laundry, washing dishes and mopping floors; maintain himself and his room in a neat manner; and prepare food and drink for himself, at least to some unspecified extent. Lucky cannot, however, without supervision, shop or make change, but can utilize public transportation to and from Dorsey Skill Center without supervision. Lucky's limited social skills are, likewise, apparent at the Dorsey Skill Center where his interaction with other students is limited. Lucky's functional performance, as opposed to his learning ability, is also apparent from his past performance at school, where it was rated at the first grade level. As such, he is unable to read or write to any significant extent and cannot perform mathematical calculations beyond the most basic addition and substraction; i.e., he cannot add two digit numbers that require carrying and cannot perform substraction that requires borrowing from another number (regrouping). He did, however, complete a vocational training program for auto body repair and was, as of October 8, 1992, and apparently at the time of hearing, enrolled in a auto mechanics program at Dorsey Skill Center. (Tr. p 46, Petitioner's Exhibit 9). The quality of Lucky's performance was not, however, placed of record. Current and past testing administered through the Dade County School System, for functional ability (vocational ability), as opposed to learning ability, evidence that Lucky functions on a level comparable to mildly mentally retarded individuals. In this regard, he was found to be impulsive, disorganized and lacking concentration, and to be most appropriately placed in a sheltered workshop environment with direct supervision and below competitive employment capacity. During the course of his life, Lucky has been administered a number of intelligence assessment tests. In July 1977, at age 3 years 10 months, he was administered the Stanford Binet by the University of Miami Child Development Center and achieved an IQ score of 55. Lucky was described as "hesitant in coming into the testing room but . . . fairly cooperative throughout." Thereafter, he was administered the following intellectual assessment instruments by the Dade County Public Schools prior to his eighteenth birthday: in March 1980, at age 6 years 6 months, he was administered the Wechsler Intelligence Scale for Children--Revised (WISC-R) and received a verbal score of 65, a performance score of 55, and a full scale IQ score of 56; and, in October 1984, at age 11 years 1 month, he was administered the WISC-R and received a verbal score of 58, a performance score of 58, and a full scale IQ score of 54. During these testing sessions, Lucky was observed to have been minimally cooperative, with low frustration level, and highly distractible. If reliable, such tests would reflect a performance which was two or more standard deviations from the mean, and within the mild range of mental retardation. While not administered contemporaneously with the administration of intellectual assessment instruments, a Vineland Adaptive Behavior Scales (Vineland) was administered to Lucky through the Dade County Public Schools in January 1988, when he was 14 years 4 months. The results of such test reflected an adaptive behavior score of 51, and an age equivalent of 5 years. Such result would indicate a deficit in Lucky's adaptive behavior skills compared with other children his age. On August 8, 1991, pursuant to an order of the Circuit Court, Dade County, Florida, Lucky was evaluated by Walter B. Reid, Ph.D., a clinical psychologist associated with the Metropolitan Dade County Department of Human Resources, Office of Rehabilitative Services, Juvenile Court Mental Health Clinic. Dr. Reid administered the Wechsler Adult Intelligence Scale (WAIS) to Lucky, whose cooperation during such testing was observed to be good, and he achieved a verbal score of 68, a performance score of 70, and a full scale IQ of Dr. Reid concluded that Lucky suffered mild mental retardation and opined: . . . his [Lucky's] abilities should be thoroughly assessed by the Division of Vocational Rehabilitation as it is my opinion . . . this young man can function in a sheltered workshop and live in a group adult facility . . . Plans should be under- taken immediately to get this youth into appropriate training as soon as he gets out of high school in order for him to learn skills that will make it possible for him to work and to learn skills in the area of socialization. This is a pleasant young man, who, in my opinion, has the capability of working and living semi-independently. Thereafter, on August 26, 1991, apparently at the request of the Circuit Court, Juvenile Division, Lucky was assessed by the Department pursuant to the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Services, to determine whether he was eligible for services as a consequence of a disorder or syndrome which was attributable to retardation. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Lucky, who was described as cooperative and motivated during the session, and he achieved a verbal score of 71, a performance score of 78, and a full scale IQ of 73. This placed Lucky within the borderline range of intellectual functioning, but not two or more standard deviations from the mean score of the WAIS-R. A subtest analysis revealed strengths in "the putting together" of concrete forms and psychomotor speed. Difficulties were noticed in verbal conceptualization and language abilities. In addition to the WAIS-R, Lucky was also administered the Vineland Adaptive Behavior Scales. He obtained a communication domain standard score of 30, a daily living skills domain standard score of 90, and a socialization domain score of 63. His adaptive Behavior Composite Score was 56. This score placed Lucky within the Moderate range of adaptive functioning. Based on the foregoing testing, the Department, following review by and the recommendation of its Diagnosis and Evaluation Team, advised the court that Lucky was not eligible for services of the Developmental Services Program Office under the category of mental retardation. The basic reason for such denial was Lucky's failure to test two or more standard deviations from the mean score of the WAIS-R which was administered on August 26, 1991, as well as the failure of the Vineland to reliable reflect a significant deficit in adaptive behavior. Also considered was the questionable reliability of prior testing.1/ Following the Department's denial, a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes, was filed on behalf of Lucky to review, de novo, the Department's decision. Here, resolution of the issue as to whether Lucky has been shown to suffer from "retardation" as that term is defined by law, discussed infra, resolves itself to a determination of the reliability of the various tests that have been administered to Lucky, as well as the proper interpretation to be accorded those tests. In such endeavor, the testimony of Bill E. Mosman, Ph.D., Psychology, which was lucid, cogent, and credible, has been accorded deference. In the opinion of Dr. Mosman, accepted protocol dictates that an IQ score alone, derived from an intelligence assessment instrument, is not a reliable indicator of mental retardation unless it is a valid reliable score. Such opinion likewise prevails with regard to adaptive behavior instruments. Here, Dr. Mosman opines that the IQ scores attributable to Lucky are not a reliable indication of mental retardation because Lucky's performance on most of the various parts of the tests reflects a performance level above that ascribed to those suffering retardation. In the opinion of Dr. Mosman, which is credited, the full scale scores ascribed to Lucky were artificially lowered because of his deficiencies in only a few parts of the tests. These deficiencies are reasonably attributable to a learning disability and, to a lesser extent, certain deficits in socialization, and not mental retardation. Consistent with such conclusion is the lack of cooperation and motivation exhibited by Lucky during earlier testing, and the otherwise inexplicable rise in his full scale IQ score over prior testing. Consequently, the test results do not reliably reflect a disorder attributable to retardation. The same opinion prevails regarding Lucky's performance on the adaptive behavior instruments which, when examined by their constituent parts, demonstrates that Lucky scores lower in the areas consistent with learning disabilities as opposed to retardation. In sum, although Lucky may be functioning at a low intelligence level, he is not mentally retarded. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which denies petitioner's application for services for the developmentally disabled under the category of mental retardation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of August 1993. WILLIAM J. KENDRICK 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 10 day of August, 1993.
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, 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 23rd day of May, 2011.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the alleged performance deficiencies.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times material hereto, Petitioner employed Respondent as a classroom teacher pursuant to a professional service contract. During the 2007-08 school year, Respondent taught a first grade class at Caribbean Elementary School. Teachers employed by Petitioner are evaluated pursuant to an evaluation system named Professional Assessment and Comprehensive Evaluation Systems (PACES), which was adopted through the collective bargaining process. PACES has been approved by the Florida Department of Education and complies with the requirements set forth in Section 1012.34, Florida Statutes (2008). PACES contains the following seven DOMAINS:1 Planning for Teaching and Learning. Managing the Learning Environment. Teacher/Learner Relationships. Enhancing and Enabling Learning. Enabling Thinking. Classroom-Based Assessment of Learning. Professional Responsibilities. Each Domain contains Indicators and Components, which are standards which the evaluator must utilize in completing the evaluation of a teacher. PACES observers must be school administrators who have been trained to conduct PACES observations. Monica Maza and Christina Guerra were the PACES observers in this case. These observers have had extensive training in the standards to be observed and evaluated in teacher performance and student learning. Ms. Maza and Ms. Guerra are authorized and well- qualified to perform PACES observations. If, during an observation, an administrator finds that a teacher (the teacher) is performing below standards, that initial observation is deemed to be not of record (initial observation). The administrator promptly meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be formally observed within one month. The administrator offers a Professional Growth Team (PGT) to assist the teacher achieve the desired performance improvement. Members of the PGT are individuals (usually fellow teachers) who have been trained in PACES and are authorized to give support and assistance to the teacher. The same administrator who conducted the initial observation must conduct the next observation, which is referred to as the “kickoff observation.” The kickoff observation is of record. If this observation is below performance standards, a Conference for the Record (CFR) is held with the teacher and the teacher is put on a Professional Improvement Plan (PIP). The performance probation period of 90 calendar days (Performance Probation Period) begins the day after the PIP is given to the teacher. There can be as many as four official observations of the teacher during the Performance Probation Period. A final observation is conducted after the conclusion of the 90-day Performance Probation Period (the Confirmatory Observation) to determine whether the teacher has corrected the deficiencies that had been identified by the prior official observations. Typically, if the administrator conducting the Confirmatory Observation determines, by utilizing the PACES evaluation criteria, that the teacher has not met standards, the school administrators recommend to the Superintendent of Schools that the teacher’s employment contract be terminated. Monica Maza, an assistant principal at Caribbean, conducted the initial observation (the observation that is not of record) on September 7, 2007. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 3), which found Respondent to be below standards in the following Domains: II, IV, V, and VI. Ms. Maza’s observation of Respondent on September 7, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 3 accurately reflects Ms. Maza’s observations on September 7, 2007. Ms. Maza met with Respondent on September 12, 2007. During that meeting, Ms. Maza reviewed the observation with Respondent and explained the reasons for the deficiencies she noted. Ms. Maza advised that she would return to do a follow-up observation. At the meeting of September 12, 2007, Ms. Maza explained to Respondent the purpose of a PGT and offered Respondent the services of a PGT, which he accepted. On September 13, 2007, Ms. Maza identified the members of the PGT. Between September 13 and October 17, 2007, the PGT provided appropriate assistance to Respondent. Ms. Maza conducted the kickoff observation on October 17, 2007. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 8), which found Respondent to be below standards in the following Domains: II, III, IV, V, and VI. Ms. Maza’s observation of Respondent on October 17, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 8 accurately reflects Ms. Maza’s observations on October 17, 2007. On October 24, 2007, Ms. Guerra and Ms. Maza held a CFR with Respondent to address the areas of performance observed to be unsatisfactory by Ms. Maza on October 17, advised that he was being placed on a 90-day Performance Probation Period, explained to him that he would have to correct his deficiencies prior to the conclusion of the Performance Probation Period, and provided him with a PIP (Petitioner’s Exhibit 10). The PIP provided Respondent with specific information as to his observed deficiencies and cited reference material to assist him in correcting his deficiencies. The PIP provided Respondent on October 24, 2007, was appropriately drafted and complied with the requirements of PACES. Respondent’s 90-day Performance Probation Period began October 25, 2007, the day after he received the PIP. Respondent was provided additional assistance through his PGT to assist him to correct the noted deficiencies. The provision of that assistance complied with the requirements of PACES. On November 19, 2007, Ms. Guerra formally observed Respondent in his classroom over a period of two hours. Ms. Guerra completed a PACES Observation Form (Petitioner’s Exhibit 20), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Guerra’s observation of Respondent on November 19, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 20 accurately reflects Ms. Guerra’s observations on November 19, 2007. Ms. Guerra met with Respondent on November 30, 2007, to go over her observation of November 19 and to issue another PIP (Petitioner’s Exhibit 22). The PIP of November 30 was consistent with the requirements of PACES and was designed to assist Respondent correct the observed deficiencies. On January 8, 2008, Ms. Maza formally observed Respondent in his classroom over a period of 121 minutes. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 24), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Maza’s observation of Respondent on January 8, 2008, was appropriate and fairly assessed Respondent’s performance. As with prior observations, Respondent was not in control of his classroom. Respondent failed to re-direct inappropriately off-task students who were not engaged in learning. Petitioner’s Exhibit 24 accurately reflects Ms. Maza’s observations on January 8, 2008. On January 14, 2008, Ms. Maza met with Respondent to go over her observation of January 8, 2008, and to issue another PIP (Petitioner’s Exhibit 26). The PIP of January 14 was consistent with the requirements of PACES and was designed to assist Respondent correct the observed deficiencies. Because the observation on January 8, 2008, reflected that Respondent’s performance continued to be unsatisfactory, a final observation was conducted after the expiration of his 90- day Performance Probation Period. Ms Guerra conducted that observation (the confirmatory observation) on February 15, 2008. Ms. Guerra completed a PACES Observation Form (Petitioner’s Exhibit 29), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Guerra’s observation of Respondent on February 15 was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 29 accurately reflects Ms. Guerra’s observations on February 15, 2008. Ms Guerra notified Respondent on February 15, 2008, that he had not satisfactorily corrected his noted deficiencies during his 90-day Performance Probation Period and that she was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. Ms. Guerra forwarded her recommendation to the Regional Superintendent on February 15, 2008, by a memorandum (Petitioner’s exhibit 48) which provided, in relevant part, as follows:. Pursuant to Section 1012.34, Florida Statutes, the above-named employee was placed on a 90-Calendar Day Performance Probation commencing October 25, 2007. During the probationary period, the employee was provided assistance. The employee has not satisfactorily corrected the noted performance deficiencies within the provided timeframe. Therefore, I am recommending that the employee’s contract be terminated. Ms. Guerra’s recommendation was also forwarded to the Office of Professional Standards (OPS), which approved the recommendation. On February 26, 2008, a meeting was held in the Office of Professional Standards which included appropriate representatives of the School District, Respondent, and Respondent’s representative from the United Teachers of Dade. A memorandum generated as a consequence of the meeting (Petitioner’s Exhibit 34) reflected that Respondent was advised he would be “. . . recommended for dismissal on the following charges: failure to correct noted performance deficiencies.” On February 27, 2008, Maria Teresa Rojas, the Assistant Superintendent of Schools, notified Respondent by letter (Petitioner’s Exhibit 35) of the following recommendation by the Superintendent of Schools: This is to notify you that the Superintendent of Schools will be recommending to the School Board of Miami- Dade County, Florida, at its scheduled meeting of March 12, 2008, that the School Board suspend and initiate dismissal proceedings against you from your current position as Teacher at Caribbean Elementary School, effective at the close of the workday, March 12, 2008, for just cause, including, but not limited to: failure to correct noted performance deficiencies within the 90 calendar day performance probation. This action is taken in accordance with Section 1001.32(2), 1012.22(1)(f), 1012.33, 1012.34 and 447.209, Florida Statutes. If you wish to contest your suspension and dismissal, you must request in writing within 15 calendar days of the receipt of the notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. If the School Board accepts (or approves) the Superintendent’s recommendation, you will be notified of the School Board’s action. The School Board approved the Superintendent’s recommendation at its meeting of March 12, 2008. Respondent timely requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed. On April 23, 2008, Petitioner filed its Notice of Specific Charges which contained one count based on Respondent’s alleged failure to correct noted deficiencies during his Probation Period. On May 28, 2008, Petitioner filed its Amended Notice of Specific Charges, which added the following factual allegations in paragraphs 13 and 14: The students assigned to Respondent’s classroom were individually tested on their early literacy development. The Dynamic Indicators of Basic Literacy Skills (DIBELS) are administered to Florida students in kindergarten through third grade in Reading First schools to determine risk levels for later difficulties in reading. Caribbean Elementary is a Reading First School. Early in the 2007-2008 school year, approximately fifty-three percent (53%) of Respondent’s first grade students were classified as low-risk. Respondent’s students were tested a second time on or about January 24, 2008. The number of low- risk students decreased to 22%, a decline of thirty-one (31) percentage points. At the same time, the number of high-risk students increased from 24% to 33%. The Amended Notice of Specific Charges filed May 28, 2008, added the following as grounds for the termination of Respondent’s employment in paragraph 22: 22. The students assigned to Respondent’s classroom performed poorly when administered the DIBELS test. Petitioner proved the factual allegations set forth in paragraph 13 of the Amended Notice of Specific Charges. The allegations contained in paragraph 14 of the Amended Notice of Specific Charges will be discussed below. DIBELS has been approved by the Department of Education2 and is used throughout the country. The administration of DIBELS is required by the Florida Department of Education in Reading First schools. DIBELS is administered one on one to each student by members of what was referred to as a SWAT team who are not the student’s regular teacher. DIBELS consists of subtests, which are a minute to three minutes in length. Two assessments of DIBELS are at issue in this proceeding. The first, conducted in September 2007, consisted of four subtests referred to, respectively, as “Letter Naming Fluency”, “Phoneme Segmentation Fluency,” “Nonsense Word Fluency”, and “DIBELS Oral Reading Fluency”. Pauline Wood, Petitioner’s Executive Director of Reading First, in reference to Petitioner’s Exhibit 38, described the four subtests in response to questions from Petitioner’s counsel (beginning on page 99 of the Transcript): Now, I just want to draw your attention to the four categories, and if you can just explain to us what the categories are? Those are on the four subtests that the children were administered for the first assessment. The first one is Letter Naming Fluency. Q. What is that? I’m sorry. A. Children are given a sheet of paper, a probe, that has both upper-case and lower- case letters on it and in one minute’s time, they’re asked to identify orally the letters. Q. The next category? A. The Phoneme Segmentation Fluency. The students are given a word, for example, Sam, and they’re asked to segment each of the phonemes. The Ss-Ah-Mm part, and that’s exactly what we’re expecting children to do at this point. And, again, it’s a one minute probe. Q. And the next category? A. Nonsense Word Fluency is a phonics decoding assessment. It’s a consonant/vowel/consonant word and we’re determining whether students can decode short vowel sounds. There are words like lut, L-U-T, which is a nonsense word, not a real word, and they’re asked to decode it. Q. And the fourth category? A. The DIBELS Oral Reading Fluency is a series of three passages that are written on grade level. The students are asked to read each of the passages one at a time. Each of them is one minute timed probe and the correct words per minute are scored. The second DIBELS test was administered to Respondent’s class in January 2008. Consistent with the testing protocol, the Letter Naming Fluency subtest was not administered. The Phoneme Segmentation Fluency, Nonsense Word Fluency, and the DIBELS Oral Reading Fluency subtests were administered. Ms. Ward made comparisons of the scores of Respondent’s class on the first administration of DIBELS in September and the second administration of DIBELS in January for the subtests of Phoneme Segmentation Fluency, Nonsense Word Fluency, and the DIBELS Oral Reading Fluency. Ms. Ward’s analysis was performed in April or May 2008. Her analysis reflected that, as compared to the two administrations of DIBELS to Respondent’s class, a greater percentage of the class fell into the high risk category and a lower percentage of the class fell into the low risk category. Ms. Ward’s analysis demonstrated that Respondent’s students did not perform as well on the January 2008 administration of DIBELS when compared to the September 2007 administration of DIBELS. Petitioner’s Exhibit 49 is a list of the students assigned to Respondent’s class who took the DIBELS test in September and those who took it in January. An examination of that list reflects that 15 of Respondent’s students took both the first and second DIBELS test. Three of the students who had taken the first test did not take the second test because they had been removed from the class. Four students who had not taken the first test took the second test for the first time. As a consequence, the first test was administered to 17 students and the second test was administered to 18 students. The pie charts prepared by Ms. Ward reflect the overall performance of the 17 students who took the first test as compared to the overall performance of the 18 students who took the second test. Her analysis makes no adjustment for the above-described changes in the constitution of Respondent’s class. While it is clear that there was a decline in performance by Respondent’s class on the second administration of DIBELS, the undersigned declines to adopt the percentages reflected on the pie charts because of the failure to account for the changes in Respondent’s class between the first and second administration of DIBELS. When OPS evaluated the recommendation from Ms. Guerra that Respondent’s employment be terminated, OPS had the results of DIBELS tests administered to Respondent’s class in September 2007 and January 2008. OPS did not have Ms. Ward’s analysis of those scores. Joyce Castro is the District Director of Respondent’s Office of Professional Standards. Ms. Castro’s testimony established that the OPS considered the DIBELS scores discussed above as demonstrating that Respondent’s students were making unsatisfactory progress. The Stanford Achievement Test is a norm-referenced test given in March of each school year to first and second graders in Reading First schools. Norm-referenced scoring compares a student’s score to scores of same grade students nationwide. Like the Florida Comprehensive Achievement Test (FCAT) administered to older students, the Stanford Achievement Test is an end of the year measurement to assess a student’s progress, or lack thereof, during the school year. The FCAT is a criterion referenced test, which has certain benchmarks that students must meet and measures the student’s progress toward meeting those benchmarks. In addition, third, fourth, and fifth grade students also take what was referred to as the Norm Referenced Test. Ms. Ward was the only witness who testified as to the purpose of DIBELS. She described DIBELS as being a tool to help teachers target their instruction. She responded as follows to the following question from Respondent’s attorney at page 116, beginning at line 17 of the transcript: Q. DIBELS is not designed as an assessment tool to determine whether the teacher has succeeded or failed, vis-à-vis the FCAT or any of these other norm- referenced tests, is that correct? A. I don’t think I have the expertise to answer that question, to tell you the truth.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order reinstate Respondent to his position with full back pay and benefits. DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. 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 16th day of December, 2008.
The Issue Is Petitioner entitled to receive developmental services from the Department of Children and Family Services (the Department), due to his developmental disability based on retardation, pursuant to Chapter 393, Florida Statutes.
Findings Of Fact Petitioner was born on June 21, 1979, and at the time of the hearing was 21 years of age. Petitioner was evaluated at the University Hospital of Jacksonville in Jacksonville, Florida, in 1982, at two and one- half years of age. A report from that evaluation indicated that Petitioner was afflicted with a seizure disorder, speech delay, and right-sided dysfunction. During September, 1985, at age six years, three months, he was evaluated at the Hope Haven Children's Clinic, in Jacksonville, Florida. His hearing was tested and determined to be normal. A psychological evaluation noted that his communication skills were below his age level. A report of this evaluation indicates he was a slow learner with weaknesses in processing, retaining, and retrieving information, particularly in the area of speech and language development. On January 21, 1986, Petitioner was again evaluated at the Hope Haven Children's Clinic in Jacksonville, Florida. It was noted at that time he had difficulty in following directions and performing in a regular school environment. He was far behind his classmates academically. During this evaluation he was administered a Peabody Individual Achievement Test and received a standard score of 75 on both mathematics and reading recognition. These scores are above the range of retardation. Petitioner was examined by the School Psychology Services Unit, Student Services, of the Duval County School Board, on February, 17, 1987, when he was seven years and seven months of age. At the time he was receiving "specific learning disabilities full time services" while at Englewood Elementary School in Jacksonville, Florida. It was noted that he was difficult to evaluate because he was easily distracted. During the evaluation, on the Wechsler Intelligence Scale for Children-Revised, Petitioner received a full-scale intelligence quotient (IQ) of 74. This score indicated that he was below average within his verbal abstract reasoning, verbal expression and practical knowledge, visual attentiveness, visual analysis and visual synthesis. He was determined to be within the "slow learner's" range of development. Petitioner was referred to School Social Work Services, Duval County School Board in Jacksonville, Florida, on January 9, 1990. He was referred to the School Psychology Services Unit, where a Wechsler Intelligence Scale for Children-Revised was administered on June 11, 1990. His full-scale IQ was determined to be 74. He was also administered a Vineland assessment, which measures adaptive behavior rather than intelligence. In this case, Petitioner's mother provided answers regarding Petitioner's behavior and adaptability. At the time of this assessment, he was almost 11 years of age. On December 18, 1996, Petitioner was evaluated by the Sand Hills Psychoeducational Program in Augusta, Georgia, when he was 17 years of age. He was administered a battery of tests. The WAIS-R indicated borderline intellectual ability, but not retardation. The Stanford-Binet was 56. This score included a verbal reasoning score of 58 and an abstract visual reasoning score of 72. The split in the scores generates doubt as to the validity of the test. Psychologist Cydney Yerushalmi, Ph.D., an expert witness for the Department, and psychologist Barbara Karylowski, Ph.D., an expert witness for the Petitioner, opined that the Stanford Binet was inappropriate for a person who had attained the age of 17 because it would tend to produce lower scores. Dr. Karylowski tested Petitioner's IQ in February and March 2000. She concluded that Petitioner had a full-scale IQ of 68, which is mild retardation. At the time of that test Petitioner was 20 years of age. Dr. Karylowski opined that the scores she obtained were consistent with all of the scores she had obtained in prior testing because the confidence interval for his IQ was 68 to 77. This would place Petitioner within the range of retardation. Two standard deviations from the mean IQ is 70. It is Dr. Karylowski's opinion that Petitioner is mildly retarded. Her opinion is based on criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), published by the American Psychiatric Association. The DSM-IV definition of retardation requires significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive behavior. The onset must occur before the age of 18 years. Accordingly, she believes that Petitioner was retarded before attaining the age of 18. Luis Quinones, M.D., was accepted as an expert witness in the field of psychiatry. Dr. Quinones opined that Petitioner meets the definition of mental retardation under DSM-IV. This means that he believes Petitioner was retarded before attaining the age of 18. He gave great weight to the Petitioner's lack of adaptive functioning in forming this opinion. Dr. Quinones opined that the definition of retardation in the DSM-IV is essentially the same as that found in Section 393.063(44), Florida Statutes. Dr. Yerushalmi evaluated Petitioner and reviewed his medical records. She administered the Wechsler Adult Intelligence Scale, Third Edition, to Petitioner, on August 11, 1999. Petitioner had a verbal score of 74, a performance score of 75, and a full-scale score of 72. She opined that Petitioner was not retarded under the definition set forth in Section 393.063(44), Florida Statutes. The aforementioned statute requires that one must meet a threshold of two or more standard deviations from the mean IQ, in order to be classified as retarded. All measures of IQ have a statistical confidence interval or margin of error of approximately five points, according to the DSM-IV. If one accepts the lower range of the confidence interval of the scores Petitioner has attained over the years, then he meets the two or more standard deviation threshold. Acceptance of the upper limits of the confidence interval would indicate that Petitioner clearly does not fall within the range of retardation. The significance of the confidence interval is reduced substantially when test results produced over a long period of time, by different test administrators, all indicate that Petitioner's IQ is not two or more standard deviations from the mean. Petitioner was diagnosed with many disorders by a variety of practitioners prior to the age of 18. No diagnosis of mental retardation was ever made. At age 21, Petitioner often behaves as if he were much younger, has focused on an 11-year-old as a girlfriend, and may become violent when not properly medicated. He likes to play pretend games of the sort that one would think would entertain a child. For instance, he likes to pretend that he is a law enforcement officer when he rides in a car. He prefers interacting with children who are five or six years younger. He is deficient in the area of personal hygiene. He likes to act silly. He is incapable of holding a driver's license. At the time of the hearing, Petitioner lived with his aunt, Ms. Mary Margaret Haeberle, who is a special education school teacher. She has provided a nurturing environment for Petitioner. Although Petitioner's parents divorced when he was a child, they have worked to address his needs. His younger sister understood Petitioner's problems and attempted to ameliorate them. Upon consideration all of the evidence, it is found that Petitioner was not possessed of an IQ which was two or more standard deviations from the mean. Therefore, there is no need to consider his adaptive function in concluding that he is not retarded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that Petitioner is not entitled to receive developmental services due to a developmental disability based on retardation. DONE AND ENTERED this 4th day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 4th day of January, 2001. COPIES FURNISHED: Michael R. Yokan, Esquire 1301 Riverplace Boulevard, Suite 2600 Jacksonville, Florida 32207 Robin Whipple-Hunter, Esquire Department of Children and Family Services 5920 Arlington Expressway Jacksonville, Florida 32231-0083 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the allegations in the Notice of Charges, the Respondent was employed as an Assistant Principal in the Dade County School System and held a continuing contract as a teacher. In December 1985, while employed as Assistant Principal at the Westview Middle School, he applied for placement on the roster of eligible candidates for appointment to positions as Principal or Assistant Principal in the Dade County School system. The Respondent's application was forwarded through appropriate channels to the Office of Management Selection where it was reviewed by Mr. Coleman, the Director. Mr. Coleman determined that the Respondent's application did not include the three performance evaluations rendered on him immediately prior to the submission of the application and, since in December 1984, the school board rule regarding this subject was changed to require "exceeds performance standards" evaluations on three prior ratings for an individual to be considered for principal/assistant principal positions, Mr. Coleman called the Respondent on the phone and spoke to him about this. At this point in time, Mr. Coleman already knew about an investigation that had been conducted regarding the Respondent shortly before the submission of his application involving an allegation that the Respondent had used excessive force in the disciplining of a student and he, Mr. Coleman, was satisfied that Respondent's application was not likely to be approved. As a result, he attempted to dissuade the Respondent from submitting the application but was unable to do so. When the application was received, it had only one evaluation form attached and, as a result, Ms. Mendez, Mr. Coleman's employee, contacted the Respondent again by telephone and requested that he submit the other two evaluations. It is at this point that Respondent claims he went to his personal file, extracted the two pertinent evaluation forms considering date only, and submitted them to the school board without looking to see what the rating was that appeared thereon. When received by the school board, the three ratings in question for the period August 1982 through June 1983, August 1983 through June 1984, and August 1984 through June 1985, all reflected that the overall assessment of the Respondent was that his performance was either above or exceeded performance expectations or standards. The three applications in question were prepared by Ms. Jerkins (August 1982 through June 1983) and Mr. Berteaux (August 1983 through June 1984 and August 1984 through June 1985). Ms. Jerkins categorically denies ever having rendered an annual performance evaluation on the Respondent with an exceeds performance standard rating notwithstanding what appears on the rating form bearing her signature contained in Petitioner's Composite Exhibit 4, dated June 20, 1983. This form reflects an "exceeds expected performance" standard. She rated him for the period as "meets expected performance standards." She did, on March 2, 1983, rate the Respondent "outstanding" in each listed category on a reference evaluation form relating to the Respondent's application for a position of Supervisor II in Computer Education. She feels that a rating of outstanding is appropriate for this purpose but she did not then and would not now rate him as exceeding the performance standards of an Assistant Principal. It is this Assistant Principal position to which the performance evaluation form submitted by the Respondent with his application for placement on the principal's roster relates. Respondent's contention that the reference evaluation of outstanding equates to an exceeds performance rating is not supported by the facts. With respect to the 1983/84 rating, Mr. Berteaux evaluated Respondent at the end of the school year and admittedly first evaluated him as having exceeded performance standards. A copy of this performance report was forwarded to the Respondent and reflected the "exceeded standards" rating. However, before being finalized through channels, the rating was changed by Mr. Berteaux as a result of his receipt of a report of investigation into an allegation that Respondent used excessive force against a student. When the report of investigation was given to Mr. Berteaux, apparently indicating that the allegation of excessive force was well-founded, he advised the Respondent by telephone that the evaluation which previously indicated that Respondent "exceeds" performance standards would be lowered to a rating that the Respondent "meets" performance standards. This was done, and constitutes the official and final evaluation of the Respondent for that period of time. Mr. Berteaux cannot say with any certainty whether a copy of the amended evaluation form was furnished to the Respondent. However, he is certain that he personally spoke with the Respondent about it by telephone because Respondent had already gone on summer vacation when the evaluation was completed and advised him of the lowering of the performance evaluation. It is most likely that a copy of the lowered evaluation was not given to the Respondent. In fact, that form which appears in the school board's records bears a signature of the Respondent which does not appear to be his bona fide signature. There was no evidence presented by the Petitioner to establish that the 1984/85 evaluation which bears a rating of above performance expectations was inaccurate and there is no allegation in the notice of charges that any impropriety exists with regard to that evaluation form. On February 24, 1986, Respondent appeared with counsel before Judge Norman C. Rotteger, Jr., in the United States District Court for the Southern District of Florida, and entered a plea of guilty to the charge of forging a U.S. Treasury check in violation of Title XVIII, U.S. Code, Section 495. A finding of guilty was entered but imposition of a sentence of confinement was withheld. Respondent was placed on probation for a period of three years. Mr. Torelli does not deny having placed his mother's name on the Social Security check made payable to her even though she had been deceased for a period in excess of one year at the time he did so. He contends, however, that a representative of the Social Security Administration office in Hollywood, Florida, to whom he spoke in regard to the disposition of the check, advised him that this was the appropriate thing to do. Respondent failed to present any evidence other than his own testimony to that effect, however. He presented the testimony of the two Social Security Administration employees with whom he allegedly spoke both of whom denied having told him to sign or cash his mother's Social Security check and both of whom contended that it is not Social Security policy to do so. Neither has ever advised a client to sign or cash a Social Security check that was not made out to them. Absent any evidence to the contrary other than the testimony of the Respondent, therefore, it is found that the Respondent did forge his mother's name to the check and cash it; that such action was without proper authority and was unlawful; and that he did so of his own volition. Respondent indicates that he has presented evidence to the U.S. Attorney which will result in the finding of guilty being vacated. Such evidence was not presented at this hearing and for the purposes of this hearing, it is found that the conviction was proper and properly entered. Both Mr. Coleman and Dr. Gray indicated that the actions of the Respondent as outlined above including the misrepresentation of his qualifications in regard to his application for placement on the principal's roster and his conviction in federal district court would have a substantial impact on Respondent's fitness to serve within the school system. Because it is imperative that the principal be able to have and place trust in his employees, Dr. Gray concluded that the Respondent's actions in both regards pose a substantial question as to his integrity and have a serious bearing on his capabilities to function as an educator. They have affected his ability to serve as a role model and as an example to his students.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is therefore recommended that the Respondent, Edmond G. Torelli, be dismissed from employment with the School Board of Dade County effective as of the date of the final order of dismissal. RECOMMENDED in Tallahassee, this 9th day of October, 1986. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2071 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case by Petitioner. Respondent failed to submit Proposed Findings of Fact in a timely fashion. Accepted and incorporated in Finding of Fact 1. Accepted but not specifically related. Accepted and incorporated in Finding of Fact 7. Accepted and incorporated in Finding of Facts 8 and 9. Incorporated in Finding of Facts 2 and 3. Incorporated in Finding of Facts 2, 4 and 5. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 16. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 16. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Edmond G. Torelli 3905 N.W. 76 Terrace Davie, Florida 33319 Dr. Leonard Britton Superintendent Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
