The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
Findings Of Fact Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School. James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories. Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental. The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use. Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/ After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental, Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards. On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students. Upon arriving at the school, Mr. McCallum and Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report. Mr. McCallum requested that Ms. Gribben accompany Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing, Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk." Mr. Makowski came to the principal's office. Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches. Mr. Culbert then began to question Mr. Makowski about his inappropriate searches. Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches. Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop. Mr. McCallum urged Mr. Makowski to be honest. Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation. Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes. Mr. Makowski surrendered his laptop computer to Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours. On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report, Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children. All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches. Mr. McCallum's report concluded as follows: On Monday, September 20, 2010, after Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds, Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act. The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting. Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident. The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students. Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges. "Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay. Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/ At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report. Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum. Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination. Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality." During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment." Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing. At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned. Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board. At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention. No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer. Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact. Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned. Mr. Makowski has not been subject to discipline by the School Board prior to this case. In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement. The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011. In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2011.
The Issue Whether Respondent committed the acts alleged in the Amended Notice of Specific Charges and, if so, the discipline, that should be imposed against Respondent's employment.
Findings Of Fact The Parties / Introduction Petitioner is the entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent began her employment with the Miami-Dade County School District ("School District") on or about October 14, 1986. Starting in 2004 and at all times relevant to this proceeding, Respondent served as the School Board's Instructional Supervisor of Exceptional Student Education for Region II. The duties associated with Respondent's position are enumerated in a written job description, and include: (1) recommending policies for the development and improvement of educational and support services for students with specific learning disabilities; (2) analyzing and monitoring programs for compliance with local, state, and federal requirements; and (3) monitoring ESE programs in a variety of areas, such as gifted, physically impaired, and specific learning disabilities. The written job description also contains examples of Respondent's duties, and reads, in relevant part: EXAMPLE[S] OF DUTIES Responsible for the development, implementation and monitoring of the ESE program for students with disabilities. Provides technical assistance to the Regional Center and school sites regarding programs for students with disabilities. Compiles and analyzes [full-time equivalent] data to assist with this task and with the distribution of program sites for students with disabilities. Supervises, develops, and implements procedures for ensuring that information relevant to policy and compliance of local, federal, and state legislation/mandates on the education of students with disabilities is disseminated to school site district personnel. Develops and facilitates evaluations and audits of programs for students with disabilities. Attends individual education plan (IEP) team meetings, as needed, at region and district levels. Ensures compliance with the Individuals with Disabilities Education ACT (IDEA) and monitors compliance of programs for students with disabilities. Coordinates training for school personnel of the Student Progression Plain and Special Programs and Procedures for Exceptional Students with regards to grading, retention, promotion, graduation and programmatic needs of student in programs for students with disabilities. * * * Assists in monitoring activities, budgets, project expenditures and personnel for federal and state projects relating to students with disabilities. Collects student performance data for students with disabilities and assists personnel with the selection of supplementary research-based curriculum targeting student achievement. Although Petitioner concedes that Respondent has performed her assigned duties adequately, it contends that Respondent misused her position in order to obtain (or attempt to obtain) McKay Scholarship funds for her two children, S.N. and J.N. For the sake of clarity, the undersigned will begin with a description of the McKay Scholarship process, followed by separate discussions of the facts surrounding S.N. and J.N. The McKay Scholarship Program The John M. McKay Scholarships for Students with Disabilities Program, codified in section 1002.39, Florida Statutes, provides eligible disabled students——i.e., students for whom an individual education plan ("IEP") or accommodation plan has been written——with scholarships to attend a private school of choice, or, at the preference of the parent, a public school other than the one to which the student is assigned. In order for a disabled student to qualify for a McKay Scholarship for an upcoming school year, section 1002.39 requires, in pertinent part, that the student have spent "the prior school year in attendance at a Florida public school." § 1002.39(2)(a)2., Fla. Stat. Relevant to the instant proceeding, a student is considered to have attended a public school during the "prior school year" if the student was enrolled and reported by a school district "for funding during the preceding October and February Florida Education Program surveys" (the October and February "FTE survey weeks"). Id. To initiate participation in the McKay program, a parent must file an "intent to participate" with the Florida Department of Education (which is generally accomplished online at www.floridaschoolchoice.org) at least 60 days prior to the date of the first scholarship payment and while the disabled child is still attending public school. § 1002.39(9)(b), Fla. Stat. A parent who files an intent to participate online is required to input the student's name, date of birth, and other background information. Upon receipt of an intent to participate, the school district will verify that the student has an IEP in place and that the attendance requirements were satisfied——i.e., the student was enrolled in public school during the October and February survey weeks. In addition, within 30 days of receiving notification of the parent's intent, the school district must transmit the student's matrix level (a numerical score ranging from 251 to 255 that indicates the level of services necessitated by the student's disability) to the Department of Education. The Department of Education, within ten days of receipt of the student's matrix level, must inform the applicable private school of the amount of the scholarship. § 1002.39(5)(b)1.c., Fla. Stat. The amount of the scholarship is determined primarily by the matrix level (and to a lesser extent by the grade and geographic geographic location of the student), with a higher matrix score entitling the student to greater funding. Should a McKay scholarship student ultimately enroll in a private school, the Department of Education will provide documentation to the State's Chief Financial Officer, who will disburse the scholarship funds in four equal installments during the months of September, November, February, and April. § 1012.39(10)(e), Fla. Stat. The warrants, which are made payable to the parent, are sent directly to the private school. Thereafter, the parent is required to restrictively endorse the warrants to the private school for deposit by the school. Id. Events Concerning S.N. Private Schooling and Testing for ESE On or about July 23, 2004, Respondent and her husband enrolled their daughter, S.N.——who was about to begin sixth grade——at the American Heritage Academy ("American Heritage"), a private school located in Plantation, Florida. Thereafter, S.N. remained continuously enrolled at American Heritage until September 2009. On the initial enrollment contract, as well as each of the re-enrollment contracts executed in 2005, 2006, 2007, 2008, and 2009, S.N.'s current address was listed as "1854 Northwest 107 Terrace, Plantation, Florida." Although S.N. neither required nor received ESE services from the 2004-2005 through the 2007-2008 school years, Respondent began to take steps——starting in the spring of 2008——to have S.N.'s eligibility for such services evaluated through the Miami-Dade County School District. Specifically, in or around April 2008, Respondent requested that Dr. Garnett Reynolds, a speech and language expert employed with the School District and supervised by Respondent, perform a speech and language evaluation of S.N. Dr. Reynolds agreed and conducted the evaluation (which must be performed before a student can tested for ESE eligibility) the same month, which resulted in normal findings. Subsequently, during August 2008, Respondent approached Dr. Yolanda Sklar, a school psychologist assigned to Region II, where Respondent's office is located, and asked her to perform a psychological evaluation of S.N. Significantly, Respondent led Dr. Sklar to believe that: S.N. would be continuing her enrollment in private school; and that the evaluation would not be used for public school purposes——a falsehood, as revealed shortly. Dr. Sklar, who was surprised by the request, reluctantly agreed because she thought it possible that a lack of cooperation could adversely affect4/ her future performance evaluations.5/ The psychological evaluation of S.N., which Dr. Sklar performed at the North Regional Center at Respondent's direction, was completed on August 22, 2008. Due to Respondent's representation that the evaluation was not for public school purposes, Dr. Sklar employed a more "clinical model" than she otherwise would have. After examining the results of S.N.'s tests, Dr. Sklar determined that although no serious behavioral issues existed, S.N. suffered from a specific learning disability in processing speed. S.N.'s Enrollment at Krop On October 15, 2008, while S.N. was still enrolled at American Heritage, Respondent registered S.N. at Dr. Michael M. Krop High School ("Krop"), a school located in Region II (the region to which Respondent was assigned) of the Miami-Dade School District and where Respondent's husband previously served as principal. On that date, which was during the FTE survey period, Respondent appeared at the office of Krop's registrar, Grace Lopez, and announced that she wished to enroll S.N. immediately. Respondent further informed Ms. Lopez that Krop's principal at that time, Matthew Welker, approved of S.N.'s registration. During the registration process, Respondent represented, and Ms. Lopez accepted, "3530 Mystic Pointe Drive, Unit 3009, Miami, Florida," as S.N.'s current address——a location zoned for Krop,6/ in contrast to the Northwest 107 Terrace address in Plantation, which had been provided to American Heritage as S.N.'s residence from 2004 through 2008. Although Ms. Lopez ordinarily conducts address verifications for new students, Ms. Lopez did not do so in connection with S.N.'s address because she confirmed that the principal had authorized the registration. Had Ms. Lopez performed such a verification, she would have discovered no connection between S.N. or her parents with the Mystic Pointe Drive address. Indeed, the evidence adduced during the final hearing in this matter demonstrates that at no time has S.N. ever resided at 3530 Mystic Pointe Drive, Unit 3009, or any other unit at 3530 Mystic Pointe Drive. Further, there is no credible evidence that Respondent expected to relocate to Mystic Pointe Drive at some time in the future. Creation of IEP and Related Records On October 15, 2008, the first day of S.N.'s enrollment at Krop, a staffing was held to determine her eligibility for special education services under the Individuals with Disabilities Education Act ("IDEA"). At that time, approximately 49 other students in the school district's Region II——one of whom attended Krop——were waiting to be staffed. As a result of the staffing, which was conducted by Lisa Parker, an ESE placement specialist employed with the school district and a close personal friend of Respondent's, a determination was made that S.N. was eligible to receive ESE services under the IDEA. On the same day, October 15, 2008, Ms. Parker held an individual education plan ("IEP") meeting, during which an IEP (a written document that memorializes the student's educational programs, goals, and necessary services) and a "matrix of services" (a document utilized by the State of Florida for funding purposes that contains the student's matrix score) were drafted for S.N. Although Ms. Parker was not called as a witness during the final hearing, testimony was elicited from two of the IEP participants: Dr. Richard Rosen, a school psychologist; and Lawrence Davidson, a music and drama teacher at Krop. Mr. Davidson, who had never observed S.N. in a general education setting, provided no input whatsoever during the development of the October 15, 2008, IEP. Instead, and notwithstanding his status as the "regular education teacher" involved in the process, Mr. Davidson merely read the document at the request of Ms. Elissa Rubinowitz, the ESE specialist assigned to Krop, and signed it based upon his belief that the accommodations enumerated in the IEP could be implemented in a general education setting. The other IEP participant who testified during the final hearing, Dr. Richard Rosen, first learned of S.N.'s IEP on October 15, 2008, while picking up files at the Region II office. At that time, Respondent asked Dr. Rosen——who was assigned to several schools in Region II other than Krop——to come into her office and read the psychological report prepared by Dr. Sklar. Dr. Rosen agreed, and proceeded to review, in a cursory fashion, certain portions of Dr. Sklar's report (the test results in particular) in the presence of Respondent and Ms. Parker, the only other persons in the room. Ultimately, Dr. Rosen signed the IEP and concluded, based upon his incomplete review of Dr. Sklar's report, that S.N. possessed academic and information processing deficits. Dr. Rosen's overall participation in the IEP's creation lasted approximately five to fifteen minutes. As demonstrated during the final hearing, the creation of S.N.'s IEP was accompanied by a number of procedural deficiencies of which Respondent, in light of her expertise in the field of exceptional student education, must have been aware. First, interventions should have been attempted in S.N.'s general education classes prior to a decision being made regarding S.N.'s eligibility for ESE services and the formulation of an IEP. Further, even assuming that it was not premature to make an eligibility determination (and create an IEP) for S.N. in October 2008, the normal procedure contemplated that the staffing and IEP meeting be held on a date when the school psychologist assigned to Krop, Dr. Mark Finkelstein, was present on campus. In addition, Dr. Sklar, the school district psychologist who conducted the testing of S.N., was not invited to participate in the process and was therefore unaware of the October 15, 2008, staffing and IEP meeting. Finally, the undersigned accepts the final hearing testimony of Dr. Sue Buslinger-Clifford, a school district instructional supervisor for psychological services with considerable experience, who recounted that she has never witnessed——for any student——the successful development of an IEP in as short a period as S.N.'s was created. As with the process that led to its creation, the substance of the IEP suffered from a variety of deficiencies. First, Dr. Buslinger-Clifford, who was accepted as an expert in the field of ESE referral and assessment, credibly testified that pursuant to state standards, Dr. Sklar's psychological report did not establish S.N.'s need for ESE services. In particular, Dr. Sklar's test results did not reveal the required disparity of at least 1.5 standard deviations between S.N.'s ability and achievement.7/ As an additional deficiency, Dr. Edna Waxman, a school district instructional supervisor for special education compliance whom the undersigned accepted as an expert in her field, credibly testified that "daily" specialized instruction in English and math was unwarranted. Finally, the IEP failed to specify the duration in which the supplementary aids and related services——i.e., collaboration, consultations, and therapy——would be provided to S.N. The matrix of services for S.N., which Ms. Lisa Parker prepared on the same day as the IEP, also failed to comply with state standards. In particular, "Domain A" of the matrix, which describes the level of modifications to the curriculum and learning environment needed by the student, was scored for S.N. as "level four"——the second highest level, which contemplates "different curriculum and/or extensive modification to [the] learning environment"——based upon Ms. Parker's determination that S.N. required assistance for the "majority of learning activities." Such a scorning was flawed, as the "Matrix of Services Handbook" and Dr. Waxman's credible testimony demonstrate that for a student's Domain A to be scored at level four based upon the need for assistance for the "majority of learning activities," evidence must be present that the student requires a special class setting or assistance within a general education class for more than 50 percent of the school day. No such evidence was documented in S.N.'s IEP.8/ Withdrawal from Krop, Subsequent Reenrollment, and Modifications to ESE Documents As detailed above, S.N.'s matrix of services and IEP were completed on October 15, 2008, S.N.'s first day of enrollment at Krop. A mere eight days later, on October 23, 2008, Respondent withdrew S.N. from Krop. During her brief period of enrollment, S.N. was present at Krop on four days: October 16, 17, 21, and 23; and absent on two occasions: October 20 and 22. Although S.N. remained on Krop's campus on the days she was present for school, she rarely attended classes and instead chose, by her own admission, to frequent the cafeteria during all three lunch periods. Indeed, Mr. Davidson, the drama instructor who signed S.N.'s IEP as the "regular education teacher," does not recall S.N. being present for his class on any occasion during October 2008. On or about October 24, 2008, S.N. resumed classes at American Heritage, where she remained continuously enrolled during her brief stint at Krop. The registrar of American Heritage, Cecelia Dehlin, testified credibly that she was unaware of S.N.'s period of enrollment at Krop during October 2008, and that such dual registration is not knowingly permitted by her institution——i.e., American Heritage would have required S.N. to withdraw upon her enrollment at Krop. Subsequently, on February 5, 2009, while S.N. was still enrolled at American Heritage and just four days before the start of the FTE survey week, Respondent once again registered S.N at Krop.9/ On the very next school day, February 9, 2009, Ms. Parker revised S.N.'s IEP. Mr. Davidson, the only person involved in the process who testified during the final hearing, signed S.N.'s new IEP at the request of Krop's ESE specialist, Ms. Rubinowitz. In addition to the revised IEP, Ms. Parker created a new matrix of services for S.N. As with the previous matrix drafted in October 2008, the new matrix improperly scored S.N. at "level four" with respect to Domain A (curriculum and learning environment). In addition, Domain B, which measures the level of services necessary to address a student's social and/or emotional behavior, was scored at level four——one level greater than S.N.'s October 2008 matrix. This was improper, as Dr. Sklar testified credibly that the information contained in S.N.'s IEP did not indicate a need for "daily counseling or specific instruction on social or emotional behavior," the purported basis for Ms. Parker's level four scoring. Based upon the increase in S.N.'s Domain B from level three to level four, the overall matrix score increased from 252 to 253. Significantly, such an increase would entitle a McKay scholarship participant to a greater level of funding. During S.N.'s enrollment at Krop during February 2009, S.N. was present on February 9, 10, 11, 12, and 13——the five school days that constituted the FTE survey week——and absent on February 17, 18, and 19, three days in which S.N. was marked present at American Heritage. Events of February 20, 2009 As discussed previously, it is necessary for a parent, as part of the McKay scholarship process, to file an intent to participate in the program prior to the student's withdrawal from public school. On the morning of February 20, 2009, Ms. Rubinowitz, Krop's ESE specialist, appeared in the office of Krop's registrar and asked that S.N. be withdrawn. The registrar, Ms. Lopez, advised Ms. Rubinowitz that in the absence of a personal request from one of S.N.'s parents, no change in the child's registration status would be made. Later that morning, Ms. Rubinowitz again requested that Ms. Lopez withdraw S.N. from Krop. On this occasion, however, Ms. Rubinowitz stated that she was attempting to expedite the withdrawal of S.N. on Respondent's behalf and that Respondent was on her way to the school. Ms. Lopez acceded to the request and made the necessary changes in the school district computer system to withdraw S.N. from Krop. A short time later, Respondent arrived at Krop and insisted that S.N. be reenrolled immediately. As school registrars within the district are prohibited from making more than one enrollment change during a single day for a particular student, it was necessary for Ms. Lopez to telephone the district's attendance services office to complete S.N.'s re- registration. Roughly one hour later, Respondent once again appeared at Ms. Lopez' office and directed, in a sudden and unusual twist, that S.N. be withdrawn. Ms. Lopez thereafter contacted the district's attendance office and carried out Respondent's request. At approximately 12:30 p.m. on February 20, 2009, the same date S.N. was withdrawn from Krop, re-enrolled, and withdrawn for a final time, Respondent went online to flordashoolchoice.org and filed an intent for S.N. to participate in the McKay scholarship program.10/ Petitioner contends, and the undersigned agrees, that the only logical explanation for the unusual events of February 20, 2009, is that Ms. Rubinowitz withdrew S.N. prior to Respondent's submission of the online intent, which necessitated S.N.'s brief re-enrollment so that Respondent could file the intent in accordance with the McKay guidelines——i.e., before S.N.'s withdrawal from public school. These events, along with the fact that S.N. was not withdrawn from American Heritage until September 2009, confirm that S.N.'s enrollment at Krop was precipitated entirely by Respondent's desire to obtain a McKay Scholarship for her child, and not, as S.N.'s testimony suggests, by supposed misbehavior on S.N.'s part at American Heritage. Other Events / Investigation In or around April 2009, Ms. Karen Stearns, an employee of American Heritage whose duties include the oversight of McKay scholarships for eligible students, learned of Respondent's intent for S.N. to receive McKay Scholarship funds for the upcoming 2009-2010 school year. This confused Ms. Stearns, as she could not understand how S.N.——who, to the best of her knowledge, had not attended public school at any point during 2008 and 2009——could meet the McKay program's attendance requirements. Ms. Stearns raised these concerns with Respondent, who stated untruthfully that S.N. qualified for a McKay scholarship due to possible litigation against the school district for failing to provide S.N. with proper accommodations. Unsatisfied with Respondent's explanation, Ms. Stearns contacted an employee with the Florida Department of Education's office of individual education and parental choice and inquired about S.N.'s eligibility. In turn, the Department of Education contacted Ms. Judith Fain, who is employed in the division of special education with the Miami-Dade County School District. Using her computer, Ms. Fain looked up S.N. in the school district's Integrated Student Information System ("ISIS"). From the entries in ISIS, Ms. Fain confirmed that the prerequisites for McKay eligibility appeared to be satisfied: an IEP for S.N. had been completed and S.N. had been enrolled in public school during the October 2008 and February 2009 FTE survey weeks. Based upon the information provided by Ms. Fain in May 2009, the Department of Education notified American Heritage that S.N. was eligible to receive a McKay scholarship. Subsequently, on June 5, 2009, the school district received an anonymous complaint from an individual using the alias "Lincoln Brower." The complaint, which was sent by e- mail, alleged that S.N. did not meet the eligibility requirements for the McKay program and that Respondent had misused her position to commit fraud. On or around the date the anonymous complaint was submitted (but prior to Respondent learning of the allegations), Respondent contacted Ms. Dehlin at American Heritage and requested that S.N.'s outstanding tuition balance for the upcoming school year be reduced pursuant to the McKay scholarship. Ms. Dehlin complied, and modified Respondent's payment plan to reduce the tuition by $11,307, the McKay funding amount that American Heritage anticipated it would receive from the State of Florida during the 2009-2010 school year. Almost immediately thereafter, Respondent engaged in a pattern of behavior that is entirely consistent with——and has been interpreted as——an attempt to conceal wrongdoing on her part. First, on June 10, 2009, Respondent came to the American Heritage campus and directed Ms. Stearns to terminate S.N.'s participation in the McKay program, destroy the school's copy of S.N.'s IEP, and dispose of the McKay Scholarship Program affidavit that had been executed less than a week earlier. Although Ms. Stearns removed S.N. from the McKay program on the date of Respondent's request, Ms. Stearns retained possession of S.N.'s IEP and the McKay affidavit. Subsequently, on June 16, 2009, Respondent contacted Ms. Stearns to confirm that S.N. had been withdrawn from the McKay program. Ms. Sterns advised that S.N. had been withdrawn as Respondent requested. A few days later, Respondent called Ms. Stearns yet again and asked if S.N.'s McKay documents had been destroyed. Ms. Sterns admitted that the documents had not been destroyed pursuant to the instructions of Mr. Laurie (one of the school's administrators), at which point the call ended. Several minutes later, however, Respondent appeared at American Heritage and asked to speak with Mr. Laurie concerning the records. During the approximate period of time that Respondent withdrew S.N. from participation in the McKay program, Dr. Daniel Tosado (an assistant superintendent with the school district) and Mr. Freddie Woodson (the district's deputy superintendent for school operations) determined that an investigation should be initiated regarding the allegations raised in the anonymous complaint. To that end, Mr. Woodson forwarded the complaint to the school district's Office of the Inspector General ("OIG") and decided, after a discussion with Mr. Tosado, that S.N.'s cumulative file should be retrieved.11/ Contents of S.N.'s Cumulative File During the final hearing in this matter, a copy of S.N.'s cumulative file was received in evidence, the contents of which included: a Krop student enrollment form; Dr. Sklar's evaluation; the October 15, 2008, IEP and matrix of services; the February 9, 2009, IEP and matrix of services; a "notification of meeting," dated October 15, 2008, which listed Dr. Sklar as an invitee; a "notification of meeting" to review S.N.'s accommodations, dated February 9, 2009; a document titled, "Secondary CST Request for Evaluation (Documentation of Screening and Prereferral Activities," dated October 9, 2008; a speech and language evaluation report, dated October 15, 2008, which listed Dr. Garnett Reynolds as the examiner; and an observation form regarding S.N., dated October 2008, purportedly drafted by a math instructor named "Levine." As demonstrated through the credible testimony of various witnesses, at least four of the documents included in S.N.'s cumulative file are fraudulent in one or more respects. First, Dr. Sklar testified that she had no involvement with the October 9, 2008, "Secondary CST Request for Evaluation," and that her signature was forged on the document. Dr. Sklar further testified that contrary to the face of the October 15, 2008, "notification of meeting," she was not invited (and had no knowledge of) S.N.'s October IEP meeting. In addition, the undersigned accepts Dr. Reynolds' testimony that she did not draft or have any involvement with the October 15, 2008, speech and language evaluation report that bears her name as the "preparer." As detailed previously, Dr. Reynolds prepared a speech and language report for S.N. in April 2008, a copy of which is not contained in S.N.'s cumulative file. Finally, Ms. Samantha Levine, S.N.'s math teacher at American Heritage during 2008-2009, testified credibly that although she filled out an observation form for S.N. during 2008, the document contained in S.N.'s cumulative file that bears her name and "signature" as the observer is not genuine and overstates the severity of S.N.'s academic difficulties. In particular, the inauthentic observation form contained in S.N.'s cumulative folder indicates falsely that S.N. was "excessively" (the most severe rating of the five options pre-printed on the form, which range from "never" to "excessively") distractible, prone to daydreaming, reluctant to speak in group situations, and self-conscious. Further, and most significant, "Section X" of the fraudulent observation form contains a notation that a "significant disparity" exists between S.N.'s ability and achievement, which was neither observed by Ms. Levine nor marked on the observation form she actually completed. In its Proposed Recommended Order, Petitioner asserts, as it has throughout this proceeding, that the fraudulent items described above were created by Respondent or by another individual at Respondent's behest. Respondent, on the other hand, contends that that one or more unknown persons placed the inauthentic documents in the cumulative file in an attempt to "frame" her and bring her family into disgrace. Although there is no direct proof of Respondent's involvement, there is sufficient circumstantial evidence to demonstrate, by a preponderance of the evidence, that the documents were created at Respondent's direction or by Respondent herself. First, there is no doubt that Respondent was highly motivated——at least until June 2009, after the anonymous complaint was filed——to secure the approval of a McKay scholarship for S.N. Respondent was so motivated, in fact, that she was willing to lie to fellow school district employees to facilitate the process: Respondent provided a phony address to Krop's registrar to secure the registration of S.N. (which led to the creation of an IEP, a McKay program prerequisite, in record-setting time and with 49 other children waiting to be staffed) and falsely stated to Dr. Sklar that any evaluation of S.N. would be used only by American Heritage. Months later, when questioned about S.N.'s eligibility for the McKay scholarship by American Heritage's registrar, Respondent untruthfully stated that S.N. satisfied the attendance criteria as a result of litigation against the school district. Respondent is further incriminated by her repeated requests, after the submission of the anonymous complaint, to American Heritage's registrar to destroy the IEP and McKay affidavit, as well as her subsequent (and sudden) appearance at American Heritage upon learning that the items were still in the school's possession. Finally, the undersigned finds it significant that the fraudulent observation form bears the surname of one of S.N.'s teachers at American Heritage——a detail not likely at the ready disposal of individuals within the Miami-Dade County School District who may wish to harm Respondent.12/ Even assuming, arguendo, the evidence detailed above is insufficient by itself to establish Respondent's involvement in the creation of the fraudulent documents, Respondent's refusal during this proceeding to testify (or answer discovery requests) permits the undersigned to draw an adverse inference13/ against her. The circumstantial evidence, enhanced by the adverse inference, is more than sufficient to demonstrate Respondent's culpability in the creation of the inauthentic records. Events Concerning J.N. J.N.'s Disability / School Enrollment It is undisputed that Respondent's son, J.N., suffers from a birth defect that impairs the use of his right wrist. Consequently, J.N., who is right handed, finds it more difficult than most other students to write neatly during long assignments and "bubble in" Scantron forms. Beginning in the fall of 2002 through the completion of fifth grade in the summer of 2008, J.N. continuously attended Central Park Elementary School in the Broward County School District. From kindergarten through fourth grade, J.N. received neither ESE nor gifted services. During the summer of 2007, several months before J.N. was to begin fifth grade, Respondent contacted Dr. Kim Rubin, the principal of Virginia A. Boone Highland Oaks Elementary ("Highland Oaks") in the Miami-Dade County School District. During the conversation, Respondent advised Dr. Rubin that although J.N. would continue to attend school at Central Park Elementary in Broward County, she wished to temporarily enroll J.N. at Highland Oaks so he could be tested for gifted services——which, according to Respondent, could be accomplished more quickly in Miami-Dade County. Respondent also stated that J.N. needed an identification number in order for him to be evaluated for gifted eligibility by a Miami-Dade School District employee. Although Dr. Rubin was aware that the registration of J.N. would run afoul of school district protocol, she decided to permit the registration in order to preserve a "collegial relationship" with Respondent. Significantly, at no time did Respondent mention to Dr. Rubin that she also intended for J.N. to be tested for ESE services. Indeed, Dr. Rubin testified credibly that had she known Respondent planned to have an IEP created for J.N. related to a disability, she would have never authorized the creation of a student identification number. This is because, as Dr. Rubin explained, a student with a disability entitles the school where the child attends to a greater FTE funds disbursement, which carries significant financial implications for the school district. On or about June 21, 2007, J.N. was enrolled at Highland Oaks pursuant to Dr. Rubin's authorization. During the registration, Respondent provided the registrar with "3530 Mystic Pointe Drive Apartment 3009, Miami," as J.N.'s address. As noted previously, however, no connection existed between that address and Respondent's family. Indeed, J.N. admitted during his final hearing testimony that he has never resided at any location in Miami. Creation of IEP / McKay Scholarship Participation / Cumulative File Discrepancies On June 25, 2007, an IEP for J.N. was prepared by one or more Miami-Dade County school district employees, which reads, in relevant part, that he had been determined eligible for the "Other Health Impaired, Specific Learning Disabled, [and] Gifted" programs. On August 7, 2007, J.D. was withdrawn from Highland Oaks——where he never actually attended——and, shortly thereafter, began fifth grade at Central Park in Broward County. During J.N.'s fifth grade year, Central Park was provided with a copy of the Dade County IEP dated June 25, 2007. Ultimately, one or more employees of Central Park adopted the IEP and transposed the information contained therein onto Broward County forms. In early 2008, Respondent applied for, and was granted, a McKay Scholarship for J.N. in the amount of $7791. Those funds——a byproduct of the IEP developed in Miami-Dade—— were subsequently applied toward J.N.'s tuition at American Heritage Academy, where he attended school during the 2008-2009 academic year. As discussed previously, an investigation of Respondent ensued during June 2009 following the Miami-Dade County School District's receipt of the anonymous complaint. Pursuant to the investigation, Mr. David Ferrer, a school district employee who serves as a liaison to the court system, picked up J.N.'s cumulative file at Highland Oaks on September 1, 2009. Mr. Ferrer provided J.N.'s file to Ms. Maria Hernandez, an administrator who serves as the custodian of records at the district level. Ms. Hernandez testified credibly that she promptly locked J.N.'s cumulative folder in a location to which only she had access and that the file has remained undisturbed since that time. During the final hearing in this matter, the contents of J.N.'s cumulative file in Ms. Hernandez's custody were received in evidence. As with S.N.'s folder, several documents contained in J.N.'s file are fraudulent: an "observation of student behaviors" form, dated May 30, 2007, which bears the name "Webb" as the observer; and the June 25, 2007, IEP. With respect to the "observation of student behaviors" document, Ms. Nancy Webb, J.N.'s fourth grade teacher at Central Park during the 2006-2007 school year and the only faculty member with the surname "Webb", credibly testified that the form is not genuine and that she never filled out an observation document in connection with J.N. Further, the undersigned accepts Ms. Webb's testimony that J.N.'s true level of academic performance in mathematics is understated in the document——i.e., the inauthentic observation form reflects that J.N. was on grade level, when in fact he was above grade level. Turning to the June 25, 2007, IEP, only one Miami-Dade school district employee whose name appears on the document was called as a witness in this matter: Ms. Michelle Weiner, a curriculum supervisor. Ms. Weiner credibly testified that during the summer of 2007, she signed a document——possibly J.N.'s IEP——at Respondent's request, but did not look at what she was signing based on her faith in Respondent's professionalism. However, as Ms. Weiner was out of town on June 25, 2007, she further testified that her "signature" on the document might have been forged. Either way, Ms. Weiner was not present for the IEP meeting and had no input whatsoever during the process; as such, her name should not appear on the document as a participant. Although there is insufficient proof that Ms. Weiner's signature was forged on J.N.'s IEP, sufficient circumstantial evidence exists——e.g., Respondent's lie to Dr. Rubin about the purpose of J.N.'s registration at her school and Respondent's provision of a false address to the registrar——that the bogus observation form (bearing the name of a Broward County teacher of J.N.'s, a detail Miami-Dade employees would have no reason to know) was either drafted by Respondent or by another individual at her behest.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2012.
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board, for five days for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times pertinent to this case, Respondent was employed as a behavioral specialist teacher at the Sunset School ("Sunset"), a public school in Broward County. Sunset is an educational center servicing emotionally and behaviorally disabled students ranging in ages from 5 to 22, kindergarten through twelfth grades. The program at Sunset is unique in its behavior management system and mental health component which include academic, vocational, therapeutic, and behavioral interventions. On December 5, 2011, Respondent notified Principal Cottrell that she intended to seek a restraining order against Sunset student, A.W. In the dialogue that followed, Principal Cottrell requested that, when completed, Respondent provide him a copy of the court documents.1/ On that same date, Respondent presented to the Clerk of the Court for the Circuit Court of Broward County, Florida, with the intention of filing a Petition for Injunction for Protection Against Repeat Violence ("Petition") against A.W. Respondent, who was not represented by counsel, obtained the blank Petition from a clerk, and filled in the required information by hand. Upon completion, Respondent presented the Petition back to the clerk. The clerk then inquired as to whether Respondent had any additional documentation that she wished to attach to the Petition. It is undisputed that Respondent then attached four documents to the Petition. Specifically, Respondent attached 1) a Sunset School Code Report dated December 5, 2011, detailing a behavioral issue concerning A.W.; 2) a Sunset School Incident report dated December 5, 2011, again detailing a behavioral issue concerning A.W.; 3) a Sunset School Incident report dated November 1, 2011, documenting a behavioral issue concerning A.W.; and 4) a Student Accident/Illness Form dated November 1, 2011, documenting a physical confrontation by and between A.W. and Respondent. The Circuit Court issued a temporary injunction against A.W. precluding A.W. from knowingly coming within 100 feet of Respondent's vehicle and ordering the parties to refrain from contact while at Sunset. The parties were notified to appear and testify at a hearing regarding the matter on December 14, 2011. Respondent, as requested, provided Principal Cottrell with a copy of the Petition; however, the attachments were not included in the copied material. After being served with the temporary injunction, A.W.'s mother notified Principal Cottrell and complained, inter alia, that A.W.'s records had been attached to the same. In response to the parent complaint, on or about December 8, 2011, Principal Cottrell submitted a personnel investigation request to the School Board of Broward County Office of Professional Standards and Special Investigative Unit ("SIU"). The investigation request alleged that Respondent had committed Family Educational Rights and Privacy Act ("FERPA") and Code of Ethics violations. On or about December 14, 2011, the Board filed a Notice of Special Appearance and Motion to Seal Confidential Records in the underlying case. The judge granted the unopposed motion, concluding the records were confidential pursuant to section 1002.221(2)(a), Florida Statutes and "FERPA regulations," and ordered the records sealed. The previously requested SIU investigation was initiated on or about January 9, 2012. Upon completion, the matter was referred to the Professional Standards Committee ("PSC"). The PSC found probable cause that Respondent had committed misconduct in violating Board Policy 5100.1, and recommended she serve a suspension. Thereafter, the Superintendent of Schools reviewed the recommendation of the PSC, concurred, and recommended a five-day suspension. Finally, the Broward County School Board approved the recommended suspension. The documents Respondent attached to the Petition were A.W.'s educational records. Said records included personally identifiable information of A.W. obtained in the course of professional service. The parties stipulate that Respondent did not have the authorization or consent of A.W., A.W.'s parents, or Sunset to attach A.W.'s educational records to the Petition. Prior to the 2011-2012 school year, Respondent attended a preplanning conference wherein the teaching staff was advised of current information related to the Health Insurance Portability and Accountability Act (HIPPA), FERPA, federal and state law, and Board policies. Respondent also acknowledged receipt of the 2011-2012 Staff Handbook and the Code of Ethics. Moreover, Respondent signed an Employee Confidentiality Agreement regarding HIPPA. Additionally, the Board policy concerning student record confidentiality is published, maintained, and available to the teaching staff. Respondent conceded, as she must, that she was aware of the obligations as a behavioral specialist at Sunset to maintain the confidentiality of student educational and health records. Notwithstanding, Respondent credibly testified that, at the time, she believed the confidentiality requirements of said records would be maintained in the court proceeding. Principal Cottrell opined that Respondent's conduct impaired her effectiveness. His testimony on this point is set forth in full, as follows: Q. Does the fact that these records were disclosed by Ms. Finnk impair her effectiveness to you – her effectiveness as a teacher to you within the system? A. Within her capacity at Sunset School or in any capacity at Sunset School when I am the administrator responsible, absolutely. I need to know that each and every team member at Sunset, each and every employee is responsible and knowledgeable on confidentiality and follows it without question. The undersigned finds that the above-quoted testimony is insufficient to support a finding that Respondent's conduct impaired her effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 18th day of June, 2013.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violations of Section 231.28(1)(h), Florida Statutes. The resolution of this issue rests upon determinations of whether Respondent used institutional privileges for personal gain or advantage, contrary to provisions of Rule 6B-1.006(4)(c) , Florida Administrative Code; and whether Respondent failed to maintain honesty in all professional dealings, a violation of Rule 6B-1.006(5)(a), Florida Administrative Code.
Findings Of Fact Respondent is Nannette V. Ramey. She holds Florida Teaching Certificate No. 408980 covering the areas of elementary education and school principal. The certificate was issued on July 1, 1976, and was renewed shortly before the final hearing in this case. During the 1988-89 school year Ramey was employed as the principal of Oceanway Elementary School by the Duval County School Board in Jacksonville, Duval County, Florida. Ramey produced a publication on school paper in black ink which set forth helpful hints to teachers at the school regarding educational techniques. The publication was entitled "Teacher's Tips" and was similar to the commercial teacher information booklet, "Master Teacher." The commercial booklet had been purchased and distributed at the direction of Ramey's predecessor at the school during the previous school year. Once a week during the 1988-89 school year at Oceanway Elementary, a copy of the "Teacher's Tips" publication was placed in each teacher's mailbox for their assistance. An industrious individual who likes a good deal, including real estate ventures, Ramey felt that she could sell subscriptions to the "Teacher's Tips." In January of 1989, Ramey began developing the idea of a commercial "Teacher's Tips." In March of 1989, she began acquiring subscribers to "Teacher's Tips" outside of Duval County through magazine advertisements and personal contacts. Ramey's commercial version of "Teacher's Tips" was distributed outside of Duval County, carried an annual subscription price tag of $9.99, and was distributed in Florida, Ohio and Canada. While printed on the same size paper as the free in- school version of the publication, the commercial version of "Teacher's Tips" was tri-folded and displayed Ramey's name as publisher along with her post office box number. During the 1988-89 school year, Ramey employed a teacher's assistant to work for her. The assistant was named Donna Avera. Avera's duties included running the copy machine, ordering school supplies and other general duties. During the course of the school day, Ramey gave Avera items to copy for her. Avera's office also served as the storeroom for school supplies and paper. On some occasions during the spring of the 1988-89 school year, Ramey would instruct Avera to use school supplied colored paper and run copies of the commercial version of "Teacher's Tips" for Ramey. Ramey also directed Avera to attempt to copy addresses of subscribers to the commercial version of "Teacher's Tips" onto blank mailing labels through use of the school copying machine. Avera's attempts with the copy machine in this respect were less than perfect with some names overlapping on some labels, but Ramey used the labels anyway. Ramey also instructed Avera during school hours to fold copies of the commercial version of "Teacher's Tips" for subsequent mailing. On one occasion in the spring of 1989, a copy machine company representative temporarily placed a demonstrator copier at the school at Ramey's request. The copier was at the school from May 9 through May 29, 1989. Ramey planned in advance to use the demonstrator copier for her personal use, recognizing what she termed "a perfect opportunity". She even purchased paper in anticipation of running off commercial copies of "Teacher's Tips" on the machine. The copier also possessed the capability to print different color inks. For instance, the version of the "Teacher's Tips" used within the school was printed on white or blue paper with black ink. The commercial version of the publication was run off in blue, pink, green, yellow and goldenrod colored paper. Avera assisted Ramey one day when the demonstrator copier jammed by unjamming the machine and running off numerous copies of the commercial version of "Teacher's Tips." During the period of time when the demonstrator copier was at the school, Avera noticed on each Monday that someone had evidently been there over the weekend making copies of the commercial version of "Teacher's Tips". Avera found copies of the commercial version jammed in the copy machine, the trash can, and spread out on a table. Notes bearing Ramey's initials would be found on the copier apologizing for jamming the machine. Another teacher's assistant, Nancy Gately, observed different colored paper being used in the copy room, along with placement of white identification cards bearing Ramey's name in booklets for Ramey to distribute during a trip. The booklets had colored commercial "Teacher's Tips" with them. Gately and Avera spent one day preparing them. The quantity of the booklets was sufficient to cover a cafeteria table. Avera ran errands for Ramey. Some of the errands were school related, other errands were personal to Ramey's needs. Avera sought travel reimbursement from the school bookkeeper. Ramey, overhearing Avera's request for reimbursement, called Avera into her office and offered the use of a private car in which to do the errands. Avera subsequently made inquiry with an attorney for the teacher's union regarding her right to receive travel expense reimbursement. She revealed the nature of her errands and that she was assisting Ramey in the preparation and dispersal of the commercial version of "Teacher's Tips." As a result of her revelations to the attorney, Avera learned she was participating in improper activities. After Avera's visit to the attorney for the teacher's union, Ramey confronted Avera in late September or early October of 1989. She advised Avera that the matter of mileage reimbursement should be immediately dropped. The relationship between the two women deteriorated rapidly after Ramey's confrontation with Avera. Eventually, Avera instituted a grievance against Ramey by letter dated February 22, 1990. The letter recounted various altercations between the two individuals in January and February of 1990. On one occasion, Ramey remarked to the school bookkeeper, Ms. Dale Mahan, that the commercial version of "Teacher's Tips" was doing well. Ramey told Mahan that the success of such a venture involved finding a product that did well, then copying and selling your own version of it. Ramey was observed at various times by Mahan folding and addressing the commercial version of "Teacher's Tips" while on school time. Mahan was the custodian of copy records for the maintenance agreements for the copy machine at the school. She gave these records to her successor, Vickie King, who became the bookkeeper in the fall of 1989. After King became the bookkeeper, Avera requested that King should examine the copy machine records in King's possession and ascertain that the records were complete. King reviewed the records and confirmed to Avera that they were complete. Later, Ramey asked King for all of the copying records and took them with her. Upon returning the records to King, the written records from the prior year concerning the monthly number of how much paper was used was not in the file. These records provided documentation regarding whether the school was staying within the copy limits of the maintenance agreement. If copy numbers exceeded the number established in the agreement, an additional copying charge would levied against the school.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of misconduct through the use of institutional privileges for personal gain or advantage and failure to maintain honesty in professional dealings, violations of Rule 6B-1.006(4)(c) and Rule 6B-1.006(5)(a), Florida Administrative Code. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probation for a period of three years upon reasonable terms and conditions to be established by Petitioner, including a condition that Respondent enroll in and successfully complete six hours of continuing education courses in the subject area of ethics in public administration. DONE AND ENTERED this 17th day of June 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1991. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-11. Adopted in substance, though not verbatim. 12.-13. Rejected; unnecessary. 14.-50. Adopted in substance, though not verbatim. 5l.-52. Rejected; Unnecessary. Respondent's Proposed Findings. 1. Accepted. 2.-3. Rejected, unnecessary. Rejected, not supported by weight of evidence. Rejected, creditability. 6.-7. Rejected, not supported by weight of evidence. 8. Rejected, unnecessary. 9.-10. Rejected, not supported by weight of evidence, as to allegations that Avera's testimony supports finding that use of school copier was solely limited to after school hours. 11.-12. Addressed. Rejected, not supported by weight of the evidence. Rejected, argumentative, not support by weight of the evidence. 15.-16. Rejected, creditability. 17.-22. Rejected, argumentative. COPIES FURNISHED: Lane T. Burnett, Esq. 331 East Union Street Suite 2 Jacksonville, FL 32202 Charles F. Henley, Jr., Esq. 111 Riverside Avenue Suite 330 Jacksonville, FL 32204 George A. Bowen Acting Exec. Dir. 301 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue The issues to be determined are whether Respondent, Mr. Oges Fadael, violated sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Administrative Complaint, Mr. Oges Fadael held an educator certificate and was employed as a guidance counselor at Congress in the Palm Beach County School District. On November 17, 2011, K.S., a 13-year-old student, went to his new school, Congress, at mid-day. After attending afternoon classes, he attempted to board a school bus for a ride back to his home at the end of the day. The bus driver refused to let K.S. get on the bus, saying that he needed to have a bus pass. K.S. testified that he then told Mr. Fadael, who was in the bus loop, that the bus driver would not let him get on the bus and that he needed assistance to get home. Mr. Fadael responded, "Hell, walk." K.S. testified that he started to walk, but couldn't find his way home, and that three or four hours later his uncle picked him up and took him home. The following morning, on November 18, 2011, K.S. returned to Congress. He walked down a hall leading to the Student Services Office, where students were not supposed to be at that time in the morning. Mr. Fadael observed that K.S. was out of his assigned area and called after him, asking him where he was going. Mr. Fadael repeated his question, and asked K.S. to stop. K.S. did not answer Mr. Fadael, and continued to walk down the enclosed hallway, away from Mr. Fadael, with Mr. Fadael following him at a distance. Mr. Anthony Cruz, a digital graphic design teacher at the school, was in front of K.S., coming from the opposite direction down the hall toward K.S. and Mr. Fadael. Mr. Fadael called out to Mr. Cruz to "Please, stop this young man." Mr. Cruz addressed K.S., saying, "Where are you going? Please stop." K.S. did not answer Mr. Cruz or do as he was directed, and instead attempted to pass by Mr. Cruz, first to the right, then to the left, and then to the right again, with Mr. Cruz adjusting his body position and arms with each move to remain in front of K.S. and block his way. K.S. continued to ignore Mr. Cruz and turned around to go back down the hall in the direction from which he had just come. He met with Mr. Fadael, who again asked him where he was going, and directed him to stop. Again, K.S. did not answer or do as he was told, but instead attempted to pass around Mr. Fadael. Mr. Fadael pointed toward the Student Services Office and then stepped toward K.S., "herding" K.S. out of the hall and into a small alcove area outside the door leading into the Student Services Office. At this point, Mr. Cruz testified that he saw K.S. try to "push off" Mr. Fadael. He explained that this was not done in an aggressive fashion, but just to push him out of the way, to get away from him and go on his way. The binder that Mr. Fadael was carrying fell to the floor, but there was no clear and convincing evidence as to exactly how this happened. Mr. Fadael's written statement after the incident claimed that K.S. hit it and knocked it to the ground, as Mr. Fadael reiterated at hearing. The testimony of Mr. Cruz was equivocal, claiming at one point that Mr. Fadael put in down, and at another point that Mr. Fadael dropped it. K.S. himself offered no testimony as to whether he knocked the binder down, intentionally or otherwise. There were no other witnesses, and the video camera recording does not show what happened. It is clear, however, that Mr. Fadael grabbed K.S. by his right arm. When Mr. Fadael put his hands on K.S., Mr. Cruz testified that K.S. escalated his physical struggle against Mr. Fadael and "kind of like got really out of control." Mr. Cruz and Mr. Fadael were telling K.S. to "calm down, calm down." K.S. did not calm down. While still holding K.S.'s right arm, Mr. Fadael aggressively pushed him against the window next to the student services area entry door. The window is not flush, but sticks out from the wall. Mr. Cruz testified that K.S. finally calmed down just enough for them to open the door and move inside. The struggle continued in the area inside the door, and K.S. was screaming, "Let me go, let me go." Mr. Cruz testified that Mr. Fadael was holding K.S. with his arm behind his back, with K.S. facing toward the wall. Mr. Fadael pushed K.S. against the wall, pinning him there, as K.S. continued to struggle. Ms. Michelle Weinhouse was a web design teacher at Congress during the 2011-2012 school year. She was in the mailroom in student services and heard yelling outside. When she came out of the mailroom to see what was happening, she saw Mr. Fadael pinning K.S. against the wall. K.S. was crying and cursing, and saying he wanted to get his dad. K.S. was embarrassed and humiliated by his treatment. Ms. Lisa Snyder was a registered nurse assigned to Congress. She testified she had seen Mr. Fadael talking to K.S. earlier, but things like that happened on a daily basis, and she went into her office. She said she came back out of her office when she heard K.S. screaming, "Ouch, let me go, let me go." She testified: There was an altercation with Mr. Fadael, the guidance counselor, and the student. The child was struggling. Mr. Fadael had the child's arms. I think in the process of trying to subdue the child, you know, the kid was--I thought he was slammed against the wall. Nurse Snyder was concerned that K.S. could have sustained a head injury because she saw his head slam against the wall. Later on the day of the incident, K.S. was examined at the JFK Medical Center in Atlantis, Florida. The patient history indicated that there was right shoulder pain. Examination showed he had some contusions and: There is mild widening of the physeal plate laterally concerning for a Salter-Harris type 1 fracture. The humeral head articulates with the glenoid cavity. There is no evidence of displaced fracture or subluxation. The visualized right lung apex is clear. K.S. was instructed not to go to school for two days, and to schedule a follow-up appointment with an orthopedist, because a growth plate fracture was suspected. It is not clear from the record if K.S. was seen by an orthopedist. K.S. testified that he went to therapy for a month. He testified that he had always played football with his friends, but that he wasn't able to do that anymore, and that he wanted to play football in high school, but couldn't do that now. K.S. was injured when Mr. Fadael pushed him against the window or when he pushed him against the wall, or both times. It is clear that K.S. was uncooperative, disrespectful of authority, and disobedient. It is clear that Mr. Fadael used excessive force in response to the disrespectful and disobedient actions of K.S. Ms. Kathy Harris was principal of Congress in the 2011-2012 school year. On November 18, 2011, Ms. Harris was asked to come to her office because a parent needed to see her. The parent was K.S.'s mother, who told Ms. Harris that there was a problem with one of the instructors. After talking with the parent for a while, Ms. Harris asked Mr. Fadael to join them. She testified that when Mr. Fadael arrived, he defended his actions to the mother. Ms. Harris testified that neither the mother nor Mr. Fadael was listening to what the other was saying, and they both became very loud and belligerent. She asked Mr. Fadael to leave and requested that he submit a written statement about what had occurred. He submitted a Student Discipline Referral. He described the events as follows: Student was out of assigned area unsupervised. I asked student to report to his designated area; he refused. I gave him a choice to report to the cafeteria or the gym, and again he refused. Another teacher who was observing the incident asked him to comply, and again the student refused. The teacher attempted to stop him, but the student was still unwilling to cooperate. When I approached him, he became aggressive and extremely provocative. I was carried [sic] my binder and my briefcase, and he knocked my binder to the floor. At this point I had to restrain him for his own safety and had to call school police for assistance. As noted earlier, there was scant evidence showing exactly what happened in the alcove off of the hall. There was no credible evidence as to whether the binder was knocked to the floor, or simply was dropped. Even assuming that false information was contained in the Student Discipline Referral, there was no evidence that it was offered with the intent to defraud. Mr. Fadael submitted the Student Discipline Referral for the purposes of having K.S. disciplined, and to justify his own actions. Ms. Harris testified that at the time she received the Student Discipline Referral, she didn't know if it was accurate or not, but she continued her investigation. Although the referral had requested that K.S. be suspended, this ultimately was not done. In fact, Mr. Fadael was instead given notice of a ten-day suspension. Mr. Fadael did not submit fraudulent information. Mr. Fadael's demeanor at hearing was confrontational and belligerent. His testimony was generally evasive and not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. Oges Fadael, in violation of sections 1012.795(1)(g) and (j), Florida Statutes, and implementing rules. It is further recommended that the Education Practices Commission impose upon Mr. Fadael a fine of $1,500.00 and revoke his educator certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements of the state board current at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of May, 2015.
