The Issue The issue is whether Respondent committed the acts alleged in the Amended Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent holds, and at all relevant times, held a valid Florida Educator’s Certificate. Respondent is and, at all relevant times, was a fifth- grade teacher at Avon Park Elementary School in Highlands County. Respondent has been an elementary school teacher for 19 years. She taught fourth and fifth grade at Zolfo Springs Elementary School in Hardee County from 1986 through the end of the 2000-01 school year. She started teaching at Avon Park Elementary School at the beginning of the 2001-02 school year. Respondent is currently on a year-to-year contract. Her contract was renewed for the 2003-04 and 2004-05 school years notwithstanding the allegations in this case, which occurred during the 2002-03 school year. Respondent has not had any disciplinary problems over the course of her career, and other than the allegations in this case, she has never been accused of any unethical or unprofessional conduct. Respondent has always received good annual performance evaluations. Respondent’s most recent performance evaluations - - for the 2002-03 and 2003-04 school years –- state that she “meets or exceeds expectations” in all categories, including the category that assesses whether Respondent “act[s] in a professional and ethical manner and adhere[s] to the Code and Principles of Professional Conduct.” Consistent with the information in Respondent’s annual performance evaluations, the principal at Avon Park Elementary School, who is Respondent’s current supervisor, testified that Respondent “does a good job” as a teacher and that she values Respondent quite highly as a teacher; the former principal at Zolfo Springs Elementary School, who was Respondent’s supervisor for approximately five of the years that Respondent taught at that school, testified that Respondent’s reputation for complying with the code of ethics is “excellent” and that Respondent always “monitored and cherished” her professionalism; one of Respondent’s co-workers at Avon Park Elementary School testified that Respondent is “a very effective and professional teacher”; and the students who testified at the hearing characterized Respondent as a good teacher. Respondent has administered the FCAT to her students since the test’s inception in the 1990s, and as a result, she is very familiar with what teachers can and cannot do when administering the test. Respondent and other teachers at Avon Park Elementary School received training on the administration of the 2003 FCAT, and as part of the training, Respondent received a copy of the Test Administration Manual for the 2003 FCAT. The Test Administration Manual is published by the state Department of Education (Department) and is distributed to teachers by the testing coordinators at each school. The school-level testing coordinators report to a testing coordinator at the school district level, who is ultimately responsible for the administration of the FCAT to the district’s students. The Test Administration Manual summarizes the “dos and don’ts” of test administration for the FCAT. It also includes a copy of the statute and rule governing test security, which for the 2003 FCAT were Section 228.301, Florida Statutes, and Florida Administrative Code Rule 6A-10.042. On the issue of test security, the Test Administration Manual explains that: it is not appropriate to talk with [students] about any test item or to help them answer any test item. For example, if students finish the test before the allotted time for the session has elapsed, or have not attempted to complete a question, it would be appropriate to encourage them to go back and check their work. It is not acceptable to provide the students with any information that would allow them to infer the correct answer, such as suggesting that they might want to check their work on a specific question. (Emphasis in original). The FCAT is required by state law to be administered annually to public school students in the third through tenth grades to measure the students’ proficiency in reading, writing, science, and math. The FCAT measures the students’ performance against state standards. The Norm Referenced Test (NRT), which is administered in conjunction with the FCAT, measures the students’ performance in math and reading against national standards. The FCAT is an important test, both to students and the schools. The student’s promotion to the next grade and/or class placement is affected to some degree by his or her performance on the FCAT. The school’s grade, which has an impact on the funding that the school district receives from the state, is also affected to some degree by the students’ performance on the FCAT. The math and reading portions of the 2003 FCAT were administered to fifth graders on Monday through Wednesday, March 3-5, 2003. The science portion of the FCAT and the NRT were administered the following week, on Monday through Wednesday, March 10-12, 2003. Throughout the 2002-03 school year, Respondent “taught the FCAT” and gave her class practice FCAT questions. She used the questions as teaching tools and to help prepare her students for the actual FCAT. Respondent would sometimes explain the wording of the practice questions to her students and, as needed, she would provide the students other assistance, both individually and as a class, while they were working on the practice questions. On Friday, February 28, 2003, Respondent administered two practice tests to her students in which she tried to simulate the environment in which the students would be taking the actual FCAT the following week. For example, the tests were timed and Respondent walked around the room as she proctored the tests. Respondent helped the students during the practice tests as she had done with the practice questions administered throughout the year. At one point, she stopped the test and reviewed a math problem on the board with the class because she observed a number of students having problems with a particular question. Respondent administered the math and reading portions of the actual FCAT to 18 students in her homeroom class on March 3-5, 2003. None of those students were exceptional education students who were entitled to special accommodations. Respondent did a 15 to 20 minute “mini-review” each morning that the students were taking the actual FCAT during which she went over terminology and concepts that the students might see on the test that day. Respondent started the administration of the actual FCAT by reading the directions verbatim from the “scripts” in the Test Administration Manual. Once the students began taking the test, she monitored them from her desk and she also walked around the room on a periodic basis. Respondent also went to students’ desks when they raised their hands. The Test Administration Manual contemplates that students might raise their hands and ask questions during the test; indeed, the “scripts” that the teacher is required to read verbatim state more than once, “Please raise your hand if you have any questions.” Respondent denied giving the students any assistance in answering the test questions on the actual FCAT. According to Respondent, when a student asked her about a particular test question, she told the student that “I can’t help you,” “go back and re-read the directions,” “do the best you can,” or other words to that effect. The Department’s testing coordinator, Victoria Ash, testified that responses such as those are acceptable. Respondent also made a general statement to the class during the test reminding the students to go back and check their work if they finished the test before the allotted time expired. Ms. Ash testified that a general reminder such as that is “absolutely acceptable.” Respondent’s testimony was corroborated by student J.M., who credibly testified that he recalled more than once hearing Respondent tell other students that she could not help them during the actual FCAT. Several students testified that Respondent helped them during the actual FCAT by explaining words that they did not understand, explaining how to solve math problems, and/or by suggesting that they check their work on particular problems. That testimony was not persuasive because it lacked specificity and precision, and other than A.P., B.B. (boy), and K.J., the students testified that they were not certain that the help they remembered receiving was on the actual FCAT rather than on the practice tests that they were given by Respondent. With respect to B.B. (boy), the undersigned did not find his testimony persuasive because he also testified that Respondent helped the entire class with a math problem during the actual test, which contradicted the statements given by the other students and which suggests that he was recalling events from the practice test during which Respondent gave such help to the entire class. With respect to A.P. and K.J., the undersigned did not find them to be particularly credible witnesses based upon their demeanors while testifying. There were other inconsistencies in the students’ accounts of Respondent’s administration of the FCAT that make their testimony generally unpersuasive. For example, B.B. (girl) testified that Respondent played classical music during the actual test, which was not corroborated by any other student in the class and was contradicted by Respondent’s credible testimony that she played music during the practice tests to relax the students but that she and the other fifth-grade teachers at Avon Park Elementary School made a conscious decision not to play music during the actual FCAT. As a result of the students’ apparent confusion regarding events occurring during practice tests rather than the actual FCAT, the inconsistencies in the students’ accounts of the events during the administration of the test, the general lack of specificity and precision in the students’ accounts of the events, and Respondent’s credible denial of any wrongdoing, the evidence does not clearly and convincingly establish the truth of the allegations against Respondent. In making the foregoing finding, due consideration was given to the investigation undertaken by the district-level testing coordinator, Rebecca Fleck, at the time of the allegations against Respondent, and the materials generated through that investigation. The reason for the investigation was a phone call that Ms. Fleck received on Wednesday, March 5, 2003, from a Department employee who told Ms. Fleck that the Department had received an anonymous complaint about Respondent’s administration of the FCAT. Ms. Fleck went to Avon Park Elementary School on Friday, March 7, 2003, to investigate the complaint. On that date, she met with the school’s assistant principal and interviewed several of the students in Respondent’s class. She also spoke briefly with Respondent to “get her side of the story,” which consistent with her testimony at the hearing, was an unequivocal denial of any wrongdoing. Ms. Fleck decided, based upon the student interviews, that Respondent should not administer the science portion of the FCAT or the NRT the following week. As a result, Respondent was assigned to work at the school district office on March 10-12, 2003, while her students were taking the tests on those dates. Ms. Fleck also decided to interview and get statements from all of the students in Respondent’s class, which she did on the following Monday and Tuesday, March 10 and 11, 2003. On those days, the students were called to the principal’s office in groups of two or three and they were asked to fill out a questionnaire developed by Ms. Fleck. Pam Burnaham, the principal of Avon Park Elementary School, and Ms. Fleck supervised the students while they filled out the questionnaires. The students were not told that Ms. Fleck was investigating alleged wrongdoing by Respondent; they were told that the purpose of the questionnaire was to find out about their “FCAT experience.” Ms. Fleck testified that she was confident that the students understood that the questionnaire related only to the actual FCAT and not any of the practice tests administered by Respondent; however, Ms. Burnaham testified that she did not place any emphasis on the distinction, and as noted above, the students’ testimony at the hearing indicates that they may have been confused on this issue. Ms. Fleck concluded based upon the students’ responses on the questionnaires that Respondent “coached” the students during the administration of the actual FCAT. As a result, she invalidated the tests of all 18 students in Respondent’s class. Ms. Fleck’s decision to invalidate the students’ tests was not unreasonable based upon what she was told by the students, which she believed to be true; however, the invalidation of the tests is not sufficient in and of itself to impose discipline on Respondent because, as discussed above, the truth of the students’ allegations was not clearly and convincingly proven at the hearing. Several of the students gave written statements to a Department investigator in late May 2003 regarding the help that they recalled being given by Respondent on the FCAT. No weight is given to those statements because no credible evidence was presented regarding the circumstances under which the statements were made, the statements were made several months after the events described in the statements, and as was the case with the questionnaires the students filled out for Ms. Fleck, the undersigned is not persuaded that the students understood at the time they were giving the statements that they were describing events that occurred during the actual FCAT rather than the practice tests that they were given by Respondent. There is no persuasive evidence that any of the students in Respondent’s class whose tests were invalidated suffered any adverse educational consequences. Even though the school administrators did not have the benefit of the students’ FCAT scores for purposes of placement and/or developing a remediation plan, they had other information on which they could make those decisions, including the students’ scores on the NRT, which was administered the week after the FCAT and was not invalidated. Other than being reassigned to the school district office during the administration of the NRT, Respondent did not suffer any adverse employment consequences from the school district as a result of the students’ allegations and/or the invalidation of the students’ tests. To the contrary, Respondent continued to get good performance reviews and her contract has been renewed twice since the administration of the 2003 FCAT. Respondent did not administer the 2004 FCAT because this case was still pending. She was given other duties at Avon Park Elementary School while her students were taking the 2004 FCAT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2005.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent's employment.
Findings Of Fact Background The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent began working for the School Board in August 2001. At all times material to this case, Respondent has been employed as a special education teacher at Homestead Senior High School, a public school in Miami-Dade County, Florida. Respondent teaches students with autism spectrum disorder. At all times material to this case, Respondent's employment with the School Board has been governed by Florida law, the School Board's policies, and the collective bargaining agreement ("CBA") between the School Board and the United Teachers of Dade ("UTD"). The Florida Alternative Assessment The School Board's first allegation against Respondent involves the Florida Alternative Assessment ("FAA"). The School Board alleges that Respondent is subject to suspension and termination because of "testing [ir]regularities involving Respondent and the Florida Alternative Assessment." As factual support of this contention, the School Board alleges in paragraph 11 of the Amended Notice of Specific Charges that "Respondent did not follow proper testing procedures since the testing booklets were submitted in blank." The FAA is the standardized test given to students with very significant cognitive disabilities, who are incapable of taking the "FCAT" standardized test or the Florida standards testing given by the school to regular education students. The scoring on the FAA is very different from traditional standardized tests. The test is divided into 20 items. Within each item, there are three separate questions. Depending on the students' performance, they may not be exposed to all of the questions. Whether or not a student has access to all three of the questions within an item depends upon whether the student correctly answers the previous question. For example, if a student correctly answers question one of item one, that student would then proceed to question two of item one. If the student answers question two correctly, the student would then proceed to question three of item one. The FAA can be administered over a number of days or weeks. The test must be completed, however, within a five-week testing period. In administering the test to students, the questions on the FAA are verbally read by the teacher to the student. The teacher gives a verbal prompt, and the student verbally responds with an answer. There is one correct answer out of three possible responses. After a student provides the teacher with a verbal answer to the question, the teacher should mark the student's answer in the test booklet. The student does not mark in the test booklet. Outside of the testing situation, the teacher should then transfer the scores from the test booklet into a separate student answer sheet, which is a "bubble sheet." Although a teacher's marking of students' answers to the questions on the test booklet is recommended, it is not mandatory. No test booklets involving Respondent's administration of the FAA to his students were offered into evidence. The evidence adduced at hearing does not establish that Respondent engaged in testing irregularities by submitting FAA test booklets in blank. In sum, the evidence at hearing fails to show that Respondent's conduct with regard to the submission of FAA test booklets constitutes misconduct in office, gross insubordination, or a violation of School Board policies. At hearing, the School Board did not argue that Respondent committed testing irregularities by submitting test booklets in blank. Rather, the School Board argued that Respondent committed testing irregularities because some students had identical responses to questions on the "bubble sheets." Despite the discussion at the hearing regarding the purported identical answers of some students on the "bubble sheets," that factual contention was not pled as a basis for Respondent's suspension and termination, and the School Board never sought to amend its Amended Notice of Specific Charges to assert this factual contention. Allegations Involving P.Z. The School Board alleges in paragraph 14 of the Amended Notice of Specific Charges that Respondent is subject to suspension and termination because he "held a student with his arm behind his back and allowed other students to hit him." At hearing, Respondent denied the allegation. At hearing, the School Board presented the testimony of P.Z., the alleged student victim. Without objection, P.Z. was accompanied by his mother at the hearing. P.Z. was a 10th-grade special education student in Respondent's class on the date of the alleged incident. P.Z. is a 15-year-old student with autism spectrum disorder. P.Z. has cognitive impairments which impact his ability to comprehend events and communicate with others. At hearing, the following exchange between the undersigned and P.Z. occurred after P.Z. was placed under oath by the court reporter at the hearing: THE ADMINISTRATIVE LAW JUDGE: Do you understand the difference between telling the truth and what would be considered a lie? Do you understand the difference? THE WITNESS: Sometimes I can't tell what the difference is of the truth or a lie. At hearing, counsel for the School Board asked questions of P.Z. with regard to the alleged incident, as follows: Q: P., I'm going to ask you about something that happened at the beginning of this school year. Do you remember getting into trouble with Mr. Adams. A: Yeah, kind of. Q: Can you tell me--do you remember why you got into trouble with Mr. Adams? A: Yeah. It was for many reasons. Well, the last time, the last one, was when he twisted my arm on my back like a military guy, and let everyone hit me to this shoulder where I hit the student. Sometimes he--and not only me, it's other kids who do that, twisting my arm on the military thing. And when the misbehaved student cries, Mr. Adams and Ms. Poser just laugh. Q: And that happened to you because you got into trouble for hitting another kid? A: Yeah, I got in trouble for many different reasons sometimes. Q: But that last time was because you had hit another student? A: Yes. MS. MARKEN: Your Honor, if I could have one moment. Judge, I don't have any other questions. On cross-examination, P.Z. testified, however, as follows: Q: I do lead you to the bathroom or accompany you. But P., let me ask you, when I told you to come apologize, did I twist your arm or did I take you by your hand? MS. MARKEN: Objection, asked and answered. THE ADMINISTRATIVE LAW JUDGE: Overruled. THE WITNESS: I don't think you twisted it. It's hard to remember. MR. ADAMS: Judge, I have no more questions. THE WITNESS: It's hard to remember after you left. Because he had to make me do my work, and you even made me cry once. And you just left. MS. MARKEN: One moment, Judge. THE ADMINISTRATIVE LAW JUDGE: Okay, P., you answered the questions. MS. MARKEN: No further questions, Judge. At hearing, P.Z. was happy to see Respondent, and they exchanged pleasantries following P.Z.'s testimony. As he was leaving the hearing room following his testimony, P.Z. told Respondent: "Bye. I hope I see you again." At hearing, no witnesses other than Respondent and P.Z. testified regarding the alleged incident. At hearing, the undersigned had the opportunity to observe the testimony and demeanor of both P.Z. and Respondent. The testimony of Respondent is credited and is more persuasive than the testimony of P.Z., which is not credited or persuasive. The evidence does not establish that Respondent held a student with his arm behind his back and allowed other students to hit him as alleged in the Amended Notice of Specific Charges. In sum, the evidence at hearing fails to show that Respondent's conduct with regard to the incident in the classroom involving P.Z. constitutes misconduct in office, gross insubordination, or a violation of School Board policies.3/ Allegations Involving Respondent's Teaching Certificate Finally, the School Board alleges in paragraph 22 of the Amended Notice of Specific Charges that Respondent is subject to suspension and termination because his teaching certificate was suspended on February 17, 2015, until further notice, making Respondent ineligible for employment as a teacher with the School Board. After the School Board suspended Respondent and initiated dismissal proceedings, the Education Practices Commission notified the School Board on February 17, 2015, that Respondent's teaching certificate had been suspended, until further notice, for failure to pay child support. The evidence presented at hearing establishes that Respondent's teaching certificate was suspended by the Florida Department of Education on February 17, 2015. On March 30, 2015, Respondent received a letter from the Florida Department of Revenue, Child Support Enforcement ("DOR"), indicating that DOR directed the Department of Education to reinstate Respondent's certificate because Respondent was paying child support as agreed or ordered by the circuit court, or he was otherwise entitled to have his certificate reinstated. Following the hearing, the School Board filed its post- hearing Exhibit 30 (mis-numbered by the School Board as Exhibit 29), which consists of a letter from the Department of Education. The letter from the Department of Education was directed to Respondent and is dated June 17, 2015. The letter indicates that Respondent's teaching certificate is reinstated because the "Department of Revenue (DOR) has directed our office to reinstate your certificate because you are paying child support as agreed or ordered, or are otherwise entitled based on DOR's findings." The evidence establishes that Respondent's teaching certificate was suspended from February 17, 2015, until June 17, 2015. In sum, the evidence fails to show that the suspension of Respondent's teaching certificate from February 17, 2015, until June 17, 2015, constitutes misconduct in office, gross insubordination, or a violation of School Board policies justifying his suspension since October 7, 2014, and termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the proposed termination and suspension, and provide Respondent with back pay, except for the period of February 17, 2015, to June 17, 2015. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 4th day of September, 2015.
