The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county. For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades. Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract. From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours." During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her. Following the end of the 2006-2007 school year, Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows: This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days. Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007. Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents." Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows: This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m. However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours. This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records. This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents." Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand." On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows: As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel. On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement. Suggestions to improve your work performance were discussed. These include the following: * * * - Specific time of the home visits, including leaving and returning to campus, need to be documented. During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook). Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.) Respondent and the other school social workers and school psychologists working out of the SCO were required to notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls. The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows: Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]). Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent. You are expected to be in your assigned school 7.5 hours (same work hours as the teachers). If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office. When you are at the Area Office, please be sure that our secretaries log you in. A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday. * * * Mileage vouchers must be submitted within 30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved. * * * You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event. Return to the office at least once a week to handle office duties. The Area Coordinator monitors the quality of your work and evaluates your performance at least annually. The Area Coordinator makes all school assignments. In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated." During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out." Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year). Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4 February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation. March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school, or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8 To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher). There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log). On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit. On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.) On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades. On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.) On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO. On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10) On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff. It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them. Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11 On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows: This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation. You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination. Questions regarding the status of this investigation are to be directed to Joe Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process. Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation. As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00" a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day. Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009. Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows: A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit. Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents: Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance. Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days. Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office. Ms. Harrison allegedly falsified mileage vouchers. The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.) The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination. On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows: The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination. Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office, which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida. You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation. Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement. A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. Questions regarding this correspondence are to be directed to my office (754)321-0735. The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf. Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report. During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference": MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records. The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination. Have you received a copy of the investigative report? MS. HARRISON: Yes. MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence, witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation. Do you understand the purpose of this meeting? MS. HARRISON: Um-hm. Yes. MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.? MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems. Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms. Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on. And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again. MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison? MS: HARRISON: I think he summed it up. MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome. MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know. MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks. MR. NEAL: Okay. Until then you just go back to doing what you have been doing. MS. HARRISON: Okay. MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you. Mr. NEAL: Thank you. (emphasis supplied).15 The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009, Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had engaged in).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010.
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Mrs. Judy Jean Emens is the mother of Teresa Ann Emens who was a student in respondent's biology class at Apopka High School in May of 1978. Late on the night of May 25, 1978, a Thursday, Teresa finished a project for biology class on the kidneys. Perhaps because she was up so late the night before, she did not feel well on the morning of May 26, 1978, and Mrs. Emens decided that her daughter ought not go to school. Teresa asked her mother to take the project to school for her but Mrs. Emens declined and Teresa took it herself on Monday. When Teresa returned from school with the report that respondent refused to accept her project because it was late, Mrs. Emens telephoned Apopka High School, and complained. In general, however, she believes respondent has "been a very good teacher." (T13). Erla Mae Miles is the mother of Barbara Miles, who was a student in respondent's biology class at Apopka High School in May of 1978. On the night of May 25, 1978, Barbara suffered an asthma attack. She did not go to school the following day, a Friday. When she took the project to school on Monday, respondent refused it. Learning of this Mrs. Miles telephoned Apopka High School and complained. On Tuesday May 30, 1978, Mr. Acree, assistant principal at Apopka High School told the principal, Roger Augustus Williams, that a mother had called to complain about respondent's refusal to accept her daughter's project. Later, Mr. Williams himself spoke to another mother with a similar complaint. That afternoon, Mr. Williams discussed the situation with respondent, who said he did not intend to accept the girls' projects. Mr. Williams said "Mr. Lee, you better think this over and come in tomorrow morning and let's discuss it." (T26). The following day Mr. Williams directed respondent orally and in writing to "accept these two projects and grade them. . ." Petitioner's exhibit No. 2. Respondent told Mr. Williams, "I just can't accept those. . .[The two] students knew what day it was due in and. . .the other kids would want to turn them in and it wouldn't be fair to them." (T29). Respondent reiterated this refusal some ten days later. He never accepted the projects for grading. In Mr. Williams' opinion, respondent was insubordinate but not insulting; he testified that respondent has never shown him any disrespect. Paragraph A of Article XIV of the contract between petitioner and the union of which respondent is a member provides: Teachers shall have academic freedom in the District, provided that: The teacher must be acting within accepted and/or adopted curriculum and courses of study. Instructional materials presented must be pertinent to the subject and level taught. The teacher presents all facts in a scholarly and objective manner. Topics discussed and materials presented within the classroom must be relevant to the subject matter under study and within the teacher's area of professional competence. A teacher shall have freedom in the implementation of the curriculum including the right to select material and to determine the class needs as they relate to the curriculum, however, this does not exclude the right and obligation of the principal or immediate supervisor to question, consult and direct whenever necessary. Petitioner's policy on attendance and excuses provides, in part: A student may be granted an excused absence when in the opinion of the Principal or his representative the absence is to the educational advantage of the student or an absence which is due to. . .personal illness of the student whose attendance in school would endanger his/her health or the health of others. . . Petitioner's exhibit No. 1. Apopka High School's policy is consistent with petitioner's policy, both of which were known to respondent in May of 1978.
Recommendation Upon consideration of the foregoing and in order not to disrupt respondent's students' education unduly, it is RECOMMENDED: That petitioner suspend respondent for one day. DONE and ENTERED this 10th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Mr. Thomas S. Lee, Jr. 4289 Lake Richmond Drive Orlando, Florida 32805
The Issue Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE- 269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.
Findings Of Fact The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James P. Walsworth, is an employee of the School Board of Broward County, Florida. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence). In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year. He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD). Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which of the students were having funding claimed for them in October, 1975 and February, 1976. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD). After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.
Recommendation It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming. DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302 Emerson Allsworth, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Mr. James E. Maurer Superintendent of Schools The School Board of Broward County Administration Offices 1320 S.W. Fourth Street Ft. Lauderdale, Florida 33312
The Issue The issue to be determined is whether Respondent violated School Board Policies, and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times to this matter, Respondent was employed as a science teacher in the Pinellas County School District and currently holds a professional service contract. She was hired as a teacher in September 1995, and worked at Lakewood High School for one school year. During the bulk of her career with the school district--August 1996 through December 2012--she worked at Largo Middle School teaching science. At the semester break, she was transferred to Countryside High School to finish out the 2012-2013 school year. She was assigned to teach anatomy and biology at Largo High School for the 2013-2014 school year and then transferred to Bay Point Middle School beginning with the 2014-2015 school year until she was placed on paid administrative leave on April 25, 2016. From at least 2011 forward, administrators, parents, and colleagues at three different schools, voiced repeated concerns regarding Respondent’s effectiveness as a teacher, including her failure to appropriately plan and deliver instruction; the lack of rigorous academic assignments; poorly organized lessons; failure to align learning targets and goals with activities and tasks; failure to differentiate instruction; failure to explain content; and failure to engage students. Complaints persisted regarding her failure or refusal to regularly grade student work and enter the grades into the student information system known as FOCUS; administer assessments; and otherwise properly manage the students in her classroom. Specific examples of her performance deficiencies, as well as repeated efforts to remediate her deficiencies through mentoring opportunities and professional development, were described in great detail at the two-day hearing and are summarized herein. Performance Issues While Teaching at Largo Middle School During the latter part of her time at Largo Middle School, administrators met with Snow to address performance concerns that existed regarding her instructional delivery, grading policies, and classroom management. Specifically, she met with administrators on October 25 and 31, 2011, to revise a “success plan,” and to discuss concerns from parents that grades were not being entered in a timely manner, mid-term progress reports not being sent home, failure to allow make-up assignments, and the issue of not enough grades being entered each marking period. They discussed developing a positive relationship with students and discontinuing the use of sarcasm during class, use of the Gradual Release Model for instructional delivery, the development of rubrics for grading student projects, and developing clear criteria for how grades would be earned. These concerns and expectations were memorialized in a disciplinary memorandum dated November 7, 2011, known as a “conference summary.” Another meeting was scheduled at Largo Middle School on April 6, 2012, to discuss “on-going issues that occurred last year and continue to occur in the 2011-2012 school year.” This meeting resulted in a letter of reprimand dated April 10, 2012, for insubordination because Respondent ignored directives to send home progress reports for students with a D or F grade; to enter student grades bi-weekly; and to allow students to make up assignments. The letter stated, in part: [D]ue to your act of insubordination in disregarding an administrative directive you are receiving this letter of reprimand. Also, by this letter of reprimand I am directing you to enter grades into the computer weekly or bi-weekly, send out progress reports at least three weeks before the end of a six week grading period and make every reasonable effort to support all students to achieve educational success. Failure to follow this directive will result in further disciplinary action. The Same Performance Standards Continue at Largo High School Following the disciplinary conferences noted above, Respondent spent a few more months at Largo Middle School, then served one semester at Countryside High School with no noted issues. Some of the same issues that plagued her at Largo Middle School, however, continued at her new school--Largo High School. For example, just four weeks into the 2013-2014 school year, Respondent was told by her supervising assistant principal, John Marina, that he was “getting feedback from parents that they don’t know what’s going on in [her] class.” He explained that parents need to see the grades so they can appropriately address their children at home. Another assistant principle notified her by e-mail that her seventh-period class had no grades entered, and two of her other classes only had two grades entered. The assistant principle reminded her of the expectation “that grades are posted weekly in FOCUS to assist students with tracking their progress, as well as parents being able to track what their students are doing.” A few days later, a parent’s complaint to the principal came to Marina’s attention. The parent advocated for her daughter’s “rights to be educated by a teacher that knows how to TEACH. . . . She is a junior, and the last two years are the most important. She deserves no less than a teacher that can provide her with the knowledge she seeks.” At the hearing, Marina recalled the meeting between the parent and Respondent. He testified that the student aspired to attend medical school and was frustrated that there was no rigor in Respondent’s anatomy class. He described the relationship between the student and Snow as “contentious” after the student said, “Hey, when are you going to teach, Mrs. Snow.” Ultimately, the parent obtained a doctor’s note authorizing the student to be removed from Respondent’s class. Even her colleagues complained to administrators. One teacher stated that Respondent “is either a really good actress, or she is inept completely.” The teacher described Respondent struggling to attach a copy of an exam to an e-mail so the teacher could print it for Snow. She said that Respondent had originally planned to have the anatomy students simply answer questions at the back of the book, but was urged by her colleague to create an exam. This caused Respondent to skip her assigned cafeteria duties to perform the task. Her colleague complained to the school administrators, stating, “I have observed that she has extremely poor planning and forethought and I believe she exists on campus for the purpose of seeking out possible excuses for her inability to perform her job duties. The more I interact with her, the more appalled that I am.” Marina developed a detailed success plan and both he and the principal met with Respondent to discuss their expectations regarding improved classroom management, use of formative assessments to differentiate instruction for students at various levels, use of standards-based benchmarks to drive instruction and measure student understanding of the curriculum, and entering grades into FOCUS. Basically, the success plan addressed the same deficiencies that were identified at Largo Middle School. Snow was offered support from experienced educators and took advantage of coaching provided by an instructional staff developer to help her with classroom management processes. According to Marina, Snow never accepted that her performance required improvement. Rather, “there was always an excuse,” and she routinely maintained that she was “an exceptional science teacher.” On April 30, 2014, Marina completed an annual appraisal of Respondent’s performance. The appraisal instrument for the 2013-2014 school year was described by Louis Cerreta (“Cerreta”), the district’s Director of Professional Development, as a “hybrid model,” because it consisted of behavior indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation system, as well as a few indicators recommended by an appraisal advisory committee consisting of principals, assistant principals, union representatives, district administrators, and classroom teachers. The appraisal system was approved by the Pinellas County School Board, submitted to and approved by FLDOE for use as the instructional appraisal instrument, and Marina was appropriately trained to conduct the appraisal. The evaluation instrument consists of three components: the administrative review or “instructional practice” component; the deliberate practice, also called the “professional development” piece; and the student achievement component. Marina completed the Summative Evaluation (consisting of the first two components, but excluding student achievement data) on April 30, 2014, which resulted in a scaled score of 1 out of 4 available points on the administrative review and zero points for professional development. The student achievement score was based on the scores of students taking the biology EOC (student achievement) and resulted in Respondent receiving a score of 3 on a 4-point scale. Snow’s final evaluation resulted in a score of 1.685 or “needs improvement” under the statutory rating system. The administrative review incorporated and summarized observations made by Marina during visits to Snow’s classroom from January through April 2014. During these visits, Marina completed a “science implementation rubric” for each of the seven observations. He explained that each of the indicators on the rubric correlated to an indicator on the evaluation instrument, and he would either mark the indicator as “evident” or “not evident” depending on what he observed in the classroom. The Administrative Review reflected many of the same concerns addressed in Respondent’s success plans at Largo High School, as well as from her former school, Largo Middle School. For example, she received “unsatisfactory” ratings on each of the five indicators under “ability to assess instructional needs.” Marina commented: “This has been an ongoing issue this entire year. I mediated several parent meetings over the concern of accurate and up to date grades.” Under the section entitled “Plans and Delivers Instruction,” she received less than effective ratings on seven of the nine indicators. Here, Marina commented that her “lesson plans are more of a to-do list,” and while she had opportunities to “go into higher order thinking and increase the rigor of her classes,” she failed to do so. He also noted that she failed to abide by the directive to send tests and quizzes to the administration for review. Under the category entitled “Maintains a Student Centered Learning Environment,” Respondent scored less than effective on ten of the 11 indicators. Marina noted: “rules and procedures tend to fall into chaos on a daily basis, as administrators are frequently called to your room. Many times it is loud and there is a back and forth between teacher and student(s).” Marina testified that he gave Respondent a zero on the professional development section of the evaluation because she submitted the same form that she had submitted when she worked at Largo Middle School indicating that she taught comprehensive science to seventh graders when in fact her professional development goals should have accurately reflected the courses she taught at Largo High School. Marina stated: “not only was it the wrong [professional development form], but it was [delivered] in March” when they are due at the beginning of the school year. Professional Performance Deficiencies Continue at Bay Point Middle School Respondent was involuntarily transferred out of Largo High School at the conclusion of the 2013-2014 school year and resumed teaching middle school for the start of the 2014-2015 school year. The principal at Bay Point Middle School (“Bay Point”), Dr. Jason Shedrick (“Shedrick”), learned during the summer of 2014 that Respondent would be his new sixth-grade science teacher. He immediately reached out several times on the telephone to introduce himself. She proved to be unreceptive to his overtures and combative at every turn. When she did not return his calls, he contacted her former school, Largo High School, to gain some insights into her background and discovered she was on a success plan. He sent Respondent an e-mail to schedule a formal meeting to discuss his expectations, as well as the climate at Bay Point so that she could become successful at her new school. At an impromptu meeting, she told him she was not happy with her schedule because she only wanted to teach biology and advanced classes. He reminded her that middle schools do not have biology classes. She insisted she was a high school teacher and that any further meetings would have to include her union representative. They met again on August 15, 2014, and developed a sixteen-paragraph detailed success plan that addressed classroom management, instructional planning and delivery, grading and tracking student progress, notification to parents through contact logs and progress reports, and attendance and professional development. Shedrick testified that there was no ambiguity as to what he expected from Respondent. He said they spent three full hours working on the success plan because they hammered out each and every issue: We went through every single item on this plan. Ms. Snow went through every item on this plan. Her Union representative went through every item on this plan. We changed it several times to accommodate Ms. Snow for Professional Development, her doctors’ appointments before school, after school, whatever it entailed. Everything was laid out so there would be no misunderstanding about the plan. For the next two years, until she was placed on paid administrative leave on April 25, 2016, Respondent proved to be both unwilling and incapable of following directions and performing the most basic duties of a classroom teacher and fulfilling the expectations of her success plan. 2014-2015 Bay Point Lesson Plans Appropriately completing lesson plans and submitting them timely was a recurring problem for Respondent at Bay Point as it had been for her while assigned to previous schools. She had been provided the Bay Point template for lesson plans in her “first day packet” and the expectation for their submission had been reviewed as part of their marathon meeting on August 15, 2014, in connection with the success plan. Nevertheless, Respondent returned her first submission on handwritten notebook paper claiming that she was unable to save an attachment on her computer. Shortly thereafter, Respondent met with Dr. Elizabeth Tisdale (now “Chiles”), the sixth-grade assistant principal responsible for supervising Snow during the 2014-2015 school year. Chiles scheduled the meeting to review school-wide rules and processes with Respondent because she had missed a couple of days during pre-school when administrators typically review these expectations. Her lesson plans were late, so Chiles specifically reviewed this expectation again. Respondent’s excuse for not submitting them varied but included: no internet at home, computer malfunction, wrong lesson plan template, and an uncertainty as to required content. Throughout Respondent’s two-year tenure at Bay Point, Shedrick had to regularly remind her to correct her lesson plans and to submit them timely. Parent Contact and Progress Reports Respondent was expected to contact parents anytime a student was in jeopardy of receiving a grade less than a C. This was another expectation in her success plan, as was the expectation that parents receive a progress report in such cases. She fell short on this expectation and, in fact, expressed early on that she had no intention of calling parents, as required. Specifically, Chiles met with her on September 2, 2014, to discuss, among other matters, a parent’s concern that her straight-A student was receiving an F in Snow’s class. Chiles reminded Respondent that parents need to be contacted if their child has an F. Respondent outright refused, stating that “she would not call every parent.” On September 15, 2014, Shedrick asked Respondent to produce the progress reports that she had sent home for students receiving a D or F in her class. In response, Snow sent him copies of the computer gradebook that she had sent home to parents requesting that they sign and return. Shedrick was incensed that she had no concept of confidentiality and would send each parent a printout describing the grades of every other student in the class. Moreover, the gradebook printouts were not the progress reports he had requested. He explained: I didn’t receive the progress reports the way that I wanted. . . . I want to know what students were doing, what the assignment was, what the point value was, when it was due, when it was turned in. I wanted to see it before it went home because, then again, I have to answer to these parents at this time why was there not enough grades in the computer, why did my kid have an F, why did my kid have a D. So what I received from Ms. Snow wasn’t what I asked for. Several months later on February 12, 2015, Shedrick notified Respondent by e-mail that he wanted to see the progress reports for all students with a D or F in her class by February 18, 2015. On that date, Chiles spoke with Snow and followed up with a an e-mail requesting that she submit the progress reports no later than 4:00 p.m., that afternoon. At 4:19 p.m., Snow sent Shedrick an e-mail telling him that the progress reports would not be completed by 4:00 p.m. The excuses given included her usual claim that there was a computer problem, this time the internet was slow, but also that students were absent and, therefore, were still taking the test. Failure to Provide Weekly Academic Assessments and Assignments Respondent was expected to grade at least two academic- based assignments each week and record the grades in FOCUS so parents and students could monitor their progress. She blatantly refused to do so and claimed that she was not contractually required. According to Snow, she was only required to record one grade weekly. During a conversation in early September, Chiles reiterated that the expectation was two graded assignments, not one, but even if only one assignment were required, Snow missed the mark because it was the third week of school and she only had two grades recorded. By September 15, 2014, several weeks into the first grading period, Snow had recorded only four grades and one was for a review of the student code of conduct, not an academic- based grade. The walk-through feedback forms completed by Chiles noted this deficiency. On January 13, 2015, Chiles noted “currently zero (0) grades posted-starting new quarter (should have at least 2-4)”; on January 20, 2015, she noted again that zero grades had been posted and on February 23, 2015, she noted that four grades were posted and there should have been 18. Shedrick testified that it was “unacceptable” that by March 23, 2015, eight weeks into a nine-week grading period, after which students were supposed to receive their report cards, Snow had posted only four grades. Respondent also was expected, and repeatedly directed, to give the students a test which would enable her to measure the students’ progress and tailor her instruction accordingly. She gave her first and only test in February 2015, and that was only after several people in administration coaxed, prodded, and essentially wrote the assessment for her. Lack of Classroom Structure, Organization, and Management Several people noted that Respondent’s students were not engaged during class and that she needed help with classroom management. For example, during walk-throughs on September 8 and 15, 2014, Chiles told her she needed more engaging lessons and to circulate the classroom rather than sitting at her desk. Again, on January 13, 2015, Chiles noted lack of engagement, students not paying attention, “no flow of the lesson-transition nonexistent, unorganized structure,” and students not understanding the lesson. On January 20, 2015, Chiles and Michele Stewart (“Stewart”), an instructional staff developer, observed her classroom together and again noted lack of engagement, rigor, and understanding by the students. Chiles had a meeting with Snow on January 21, 2015, to review these issues. Snow did not respond to her suggestions for improvement, except to say that her planning period should not be interrupted and that the students do not understand the class “because of their levels.” Excessive referrals, sending students out of class into the hallway without assistance, and not addressing student needs were regular issues for Snow. In one instance, she assigned a student to the back of the room in a time-out chair and did not excuse him to use the restroom. The student wet himself causing him to be embarrassed and ridiculed by his peers. Snow told Chiles that she saw the boy’s hand slightly raised, but thought he was playing with the blinds. Shedrick testified that the boy’s parent called and came to the school to take the student home and that he “had to explain [to the parent] why the student sat in the back of the classroom and the teacher would not let him go to the bathroom.” Another time, Respondent left campus in the middle of the day without telling anyone. Her class of 22 students was left alone, unsupervised. Shedrick said he arrived in her room, and she was not there. Another teacher had to cover her class. He said he called her on the phone and was informed that she was sick or had a doctor’s appointment. As a result of this incident, coupled with the other recurring performance deficiencies, the superintendent suspended Snow for three days. Support, Training, and Professional Development at Bay Point Snow had multiple opportunities to correct her performance and improve her deficiencies through a variety of training opportunities and support provided to her. On most occasions, she refused to attend or otherwise participate. Many examples were given by the witnesses testifying on behalf of the school district. At the very beginning of the 2014-2015 school year, Respondent was expected to attend District Wide Training (“DWT”) for middle school science teachers. The DWT is the “big kick- off” for the upcoming school year, and the sessions consist of practices and initiatives that the science department expects to be implemented in the schools. Despite being specifically told that she needed to attend the middle school sessions to learn about revisions to the middle school curriculum, she instead chose to attend the high school science sessions. When asked why she did not attend these (which would have been relevant to her assignment as a middle school teacher), she told the principal that in her mind she was a high school science teacher. As is the case with all teachers new to the school, Respondent had a mentor assigned. Lara McElveen (“McElveen”) was the lead mentor at Bay Point and testified that she was a resource and was always available to help teachers navigate issues ranging from curriculum questions to technology. She held regular monthly meetings to discuss what was working for the teachers and what was not. While most teachers came to her when they needed help with the type of problems Snow experienced (lesson planning, progress reports, assignments, test preparation, FOCUS, etc.), Snow only sought her help occasionally and only for minor issues such as printing or copying assignments. McElveen testified that she tried to set up meetings to help with more substantive matters, but Snow complained that she had “too many meetings and that it was outside her contractual hours.” Four specific trainings were identified in the Success Plan negotiated between the principal, Respondent, and her union representative during their three-hour meeting on August 15, 2014. Specifically, she agreed to attend the following training sessions: Just in Time Unpacking & 5E Collaborative Planning on September 2, 2014; Content Enhancement Part 1 Unit Organizer on September 23, 2014; Data Driven Instruction & Analysis Gap Check In in January 2015; and Just in Time Boot Camp on February 3, 2015. Shedrick went out of his way to remove any barrier to her attendance. He made sure she was paid to attend the trainings by giving her a “TDE” (Temporary Duty Elsewhere). He personally coordinated the timing of the trainings with other appointments on her calendar, including her doctor’s appointments, and also sought out convenient locations for the different trainings so that she did not have to travel far. He set the first training scheduled for September 2, 2014, at a school located only five minutes away. She did not attend this training. Given the efforts that he went through to personally set up the trainings and personally reach out to the people conducting them, Shedrick testified that he was beyond disappointed and annoyed that she did not bother to attend. As a result, he wrote her a reprimand dated September 5, 2014, and directed her to follow the expectations in the success plan-- including attendance at the other trainings--in order to avoid future discipline. Despite her agreement as part of the success plan and the directive in the reprimand, she did not attend any of the four trainings. She never offered the principal an explanation for not attending, but simply told him that she did not attend. In early October 2014, administrators visiting Respondent’s classroom noted that she was two-to-three weeks behind in the pacing calendar establishing the dates by which certain subjects should be covered in her classroom. Shedrick worked with the middle school science specialist, Tom Doughty, to provide Snow assistance and get her back on pace. They assigned Stewart the task of working with Respondent. Stewart observed her class on October 8, 2014; met with her briefly to discuss a remediation plan; and scheduled another meeting the following week to follow through. At the scheduled meeting, Stewart brought the additional materials Snow had requested, but was unable to work personally with her because there was a collaborative planning session scheduled with all teachers. Stewart attended this training with Respondent. Afterward, she asked Snow to meet with her individually as planned, but Snow told her no, she was not contractually required to meet. Over the next couple of weeks, Stewart was at the school for five more days conducting trainings and available to assist the science teachers. Respondent appeared for one group-training on November 12, 2014, but no more. On one of the days (October 20, 2014), all of the science teachers came to meet with Stewart, except Snow. On another day (November 20, 2014), administrators asked Snow to meet with Stewart, but she never showed up and on the other two days, she called in sick. In addition to Snow falling behind in pacing, Doughty and others observed during classroom visits that Snow had “instructional pedagogy issues.” Shedrick again asked Doughty and his team to come in and provide direct support to Snow. Doughty observed her classroom on four occasions between January 13 and January 16, 2015, to see “what instructional strategies were used or lack thereof, what could have been used and were not employed or were not employed correctly.” The plan was to work in tandem with Stewart to provide professional development geared toward the specific areas where Snow struggled. Following the observations, he met with Snow, Shedrick, and Chiles to “debrief,” but Snow was openly resistant to his observations and suggestions. He said he tried to point out areas where her classroom management and practices needed to be refined, but she “cut me off at various points to argue with my observations.” For example, he suggested that a classic and fun activity for kids to learn the concept of balanced and unbalanced forces was a simple game of tug-of-war where they can experience what happens with forces on either side of a rope. Snow’s method for teaching this concept was to refer the kids to a picture of a satellite in their textbooks. Doughty told her that pointing the kids to a picture in a textbook “is not helping a student put an abstract concept to a concrete example.” In response, Snow “defensively interrupted [him] saying that she would never do that with her students and would stick with the picture of a satellite in a book.” He concluded that overall “Snow was very defensive and seemed not willing to accept feedback in order to improve her practice.” Snow was told repeatedly that assessments are necessary to measure a student’s understanding of the content taught. Also, Shedrick wanted to see any test she planned to give the kids. Despite these directives, Snow had not tested her students nor had she tried to create a test. Finally, on January 20, 2015, Snow sent Shedrick two documents for his approval which she presumably believed to be appropriate for testing her students. Noting that they appeared to be three-year-old worksheets, Shedrick forwarded the proposed assessments to Doughty for his review. Doughty first questioned why Snow would be testing certain subjects in late January--homeostasis and cells--when the pacing calendar called for the topic to be covered in the first week of October. He also noted that the sheet was straight out of the textbook. He observed that the second document was apparently pulled by Snow from a bank of questions designed several years earlier and was not appropriate to be given as a test to students. He also reminded Shedrick that Snow would benefit from attending a session at an upcoming DWT focused on proper classroom assessment design. As already noted, she did not attend the trainings which could have helped her do her job and, in particular, a training specifically designed to help her create a test. Next, Shedrick notified Snow that she was not to give the test she had proposed. In desperation, he asked Doughty and his science team to again work with Snow on creating a test. He testified that he had to ask for their help because Snow had not tested her students all year: I had to because we’re in December, January and the students haven’t been assessed. So how do you know what deficiencies they have? How do you know what standards to remediate? How do you know what they’re lacking? How do you know where to fill in the gaps? How do you know what to do as a teacher if you haven’t given a five-question quiz? How do you know what to do? When Shedrick informed Snow that the county science department would be setting up individualized training at Bay Point because she missed the professional development planned for all teachers (a DWT), she responded that “she did not have time for training because [she] was so busy.” He asked if it would be possible to set them up in the morning before school, during her planning period or after school, and she repeated that she was too busy and would never attend a training during her planning period. Finally, Snow agreed to attend a side-by•side training with Stewart so that Stewart could teach Snow, a veteran teacher with upwards of 23 years’ experience, how to write a test. Stewart and the district’s test bank did the bulk of the work, and eventually a test was created. Snow’s students were administered their first and only test on February 10, 2015. 2014-2015 Annual Evaluation at Bay Point On April 17, 2015, Chiles completed an annual appraisal of Snow’s performance. The appraisal instrument for this year was the “hybrid model” incorporating indicators from the Charlotte Danielson evaluation system and the Dr. Robert Marzano evaluation. Chiles completed a two-day training on the evaluation system. She passed a test on its use prior to evaluating teachers. The instructional practice portion of the evaluation, completed by Chiles, comprised 40 percent of the total score. Snow scored 1.364 points achieving an “unsatisfactory” rating. Snow did not score “effective” on any of the indicators. Chiles noted in the formal observation that: Ms. Snow demonstrates deficiencies in the area of delivery of instruction . . . she also struggles with time management in delivering instruction which causes students to be unclear on instruction and assignments. Many students are unable to articulate the learning goal or relate the learning goal to the lesson. Furthermore, many parts of the Gradual Release Model are not applied or observed. With regard to the assessment of instructional needs, Chiles noted that “little progress has been made.” “Tracking and monitoring data has not been exhibited, as well as using multiple assessments to assess the instructional needs of all students.” The student achievement portion of the evaluation counted for 50 percent of the overall score. Snow achieved 3.0 points for this portion. The remaining ten percent was based on professional development and Snow was given three out of ten available points. Respondent received only three points because she submitted a plan that did not match her duties. Again, she submitted an old form from the previous year when she worked at a high school. The form stated she was a biology teacher at Largo High School rather than a sixth-grade science teacher at Bay Point. Three points on a ten-point score was converted to a 1.2 on a four-point scale. Overall, Snow’s evaluation reflected a “needs improvement” rating with a final score of 2.166. 2015-2016 School Year at Bay Point Despite Snow’s poor performance, lack of cooperation and outright defiance the preceding year, Shedrick was optimistic that the 2015-2016 school year would be different. He testified that he was excited that Snow may have “turned a corner.” He testified that he was hopeful because over the summer Snow had shown some initiative and “went to a training without me asking her to.” Moreover, she actually approached him and shared the information, which was rare. He then scheduled a meeting with Snow to scale down her success plan and work on what was necessary to make her a successful science teacher. Shedrick’s optimism was misplaced and quickly faded. Snow was contentious and not receptive to the scaled-down success plan which contained many of the same expectations as the earlier one, i.e., two grades per week in FOCUS; at least one approved assessment each grading period; follow pacing guides; provide progress reports to students with D’s and F’s; contact parents; submit lesson plans; and attend classroom management training. She immediately objected to the expectation that she attend classroom management training stating that she already went to a training in July: “I’ve already been to that training and I am not going to any more training.” He tried to explain to her that the trainings are not all the same at which point it occurred to him that the only reason she attended training in the summer was probably to get a “trade day,” which amounted to a paid day off during the school year. He said, “I hope she didn’t go to that training just for the trade day. I hope she went to that training for students. Conclusion, trade day, because she would not go anymore [to additional trainings].” Not only did her performance and attitude fail to improve, it went downhill quickly from that point forward. Throughout the first semester of 2015, Shedrick and other administrators conducted numerous visits to Snow’s classroom and repeatedly notified her that she was behind the curriculum; her instruction was very low-level textbook work; she had not given the students a single assessment or even a quiz; she was not entering academic grades into FOCUS; she was not engaging the students or managing her classroom; and she had no plan to remediate the students who were falling behind. Shedrick testified that by December 2015, he was “at wits end.” He tried to schedule a conference with her prior to her formal observation but she would not meet with him. He tried repeatedly to re-schedule a meeting. Snow responded with a variety of excuses and objections and once marched into his office at the scheduled time simply stating, “I’m not meeting for your pre-conference,” and walked out. She did not complete the required pre•observation form, so Shedrick asked someone from the professional development department to go into the iObservation database and prepare the form for her. She never completed the form and never appeared for a pre-conference before the formal evaluation. Shedrick experienced the same difficulty with Snow in scheduling a formal observation. She objected that he did not give her enough notice; she did not have enough time; she had to test ESE and ESOL students; and other teachers do not have a formal observation mid-year. At one point he went to her classroom to discuss the observation (because she did not respond to his e-mails) and discovered that the kids were working on crossword puzzles. He said that if she was going to ignore his e-mails, “at least let me walk into [her] class and see [her] students highly engaged in some specification [sic] of some science labs, some dissection, and some hands-on lab learning for science. Imagine my dismay to walk in and see students working on crossword puzzles.” He conducted the formal observation on December 16, 2015, and for 55 minutes of the class period, the students worked on defining terms. He said this was typical of Snow’s lessons. “Bell work was defining terms. Classwork was defining terms . . . students would sit there and actually copy word for word verbatim or she would have them in the science consumer workbooks underline or she would regurgitate to them as to what to write next to whatever they underlined right next to it.” On the formal observation, Shedrick notes under “Establishing Classroom Routines”: [A]s I walked into the classroom you were moving around students from seat to seat and one student asked what are we doing and you replied “just wait.” You instructed the class to sharpen their pencil one by one and seven students ran to the pencil sharpener. Now students are sitting and waiting for you to begin the lesson. Two students are passing out books. Four minutes are gone and students are still waiting. Two students in the front row are passing out sheets of paper, now you have several students up doing various things at this time. Female students in the back are talking about the movies from the weekend. Ten minutes has gone before you address the class. You are trying to inform students of the Scale you created. Under the category entitled “Identifying Critical Content,” he wrote: Teacher reading terms that she asked students to define (define three terms) and students ask you to repeat and what page? No collaboration for this assignment . . . students are just defining terms out of the book and writing on paper . . . . At the beginning of the second semester, Shedrick’s frustration with Snow was palpable. He requested help from OPS, as well as the area superintendent, Robert Path, asking: How much longer must we continue with Snow? Anytime I request a meeting, she does not respond and doesn’t attend. This is defiant and disrespectful to start. How will I continue to run my campus as teachers hear she doesn’t attend my requested meetings, why should they. All this with no action which allows her to continue her behavior. On January 15, 2016, Shedrick sent Snow a letter telling her that she was on very thin ice but he was going to try once again to remediate her numerous deficiencies. After summarizing all of his efforts to meet with her to conduct a formal observation, as well as her responses, he stated: I have grave concerns over whether the very marginal instructional improvement that you made last year is sustained. You have never assessed your students so I have no information on that score, refused to show me the work that your students are performing so I do not have that information to review, refused to meet with me to finish a formal observation and have called in sick for several days avoiding this discussion. For that reason, I asked Mr. Doughty, the Middle School Science Specialist to observe your classroom, on Thursday, January 14th and this morning. I am very concerned about numerous things including the lack of science instruction taking place in your classroom, your classroom management and your conduct and attitude every time that I try to discuss these issues with you. Your continued refusal to do what I ask has seriously impeded the education of our students and they deserve better. I remain willing to work with you and sincerely hope that you choose to work with me toward preparing our students to meet the goals set for 6th grade science. I plan to meet with you to discuss all of these issues. Doughty again observed Snow’s class on January 14 and 15, 2016, and used his observations as a basis to develop yet another remediation plan. He observed that the activities were “low rigor-no connection made to learning target”; the pace of the lesson was not appropriate; there was “minimal student engagement” with students “off task” and “compliant” [sic, the context supports “non-compliant”]; and classroom management and discipline was not evident. Doughty helped design yet another remediation plan that was presented to Snow on January 20, 2016. He said: [W]e wanted to provide as much support and help to try to help her be the best teacher we could make her to be. So one of the things I suggested to Dr. Shedrick was, for example, Letter G [of the remediation plan] was stop using movies as a time filler, having appropriate topics and rigorous assignments that tied to it. Aware that much of what he had observed in the past was “textbook, textbook, textbook, writing in the textbook and . . . not a lot of hands-on engaging things,” he suggested Letter H of the plan, “performing labs that tied into the unit to bring on hands-on activities to give students ownership into their learning.” Doughty and Stewart spent several sessions with Snow during January and February 2016. On February 19, 2016, following an observation of her class, Doughty wrote to Snow commenting that the students were generally confused because the learning goal or the content she intended to teach, did not align to the task: The strategies used weren’t implemented correctly and did not achieve the desired effect. . . . Through my last two visits I have not seen effective implementation of the professional development Michele has provided on an individual basis. It is apparent we will need to revisit the topics from the previous 2 PO [personal observation] sessions. . . . At this point, Doughty felt his team’s efforts could be better utilized elsewhere, rather than continuing to work with Snow who was not cooperating. He contacted a number of people to tell them that “we’re not getting anywhere.” In an e-mail dated February 23, 2016, Doughty noted that “overall it is not going well” and “Michelle is very frustrated that her efforts are not yielding any results.” Insubordination, Incompetence, Performance Deficiencies, Willful Neglect of Duty Respondent is either incapable of performing the duties of a classroom teacher or simply unwilling to do so. Based upon the record, it is both. At times it seems that she is not willing to try because she does not have the skills necessary to perform her duties and, at other times, she is outright defiant claiming that she is not required to do what is asked of her. For two years at Bay Point, she has been directed to enter at least two academic standards-based grades per week in FOCUS and administer an assessment to the students. The assignments that she gave to students in no way could be construed as academic- based. The workbooks produced at hearing from students T.J. and M.T. contain pages with a few definitions, questions and answers copied out of the textbook, and “reflections” consisting of one to two sentences of what the student learned. One assignment is a “foldable” that the student cut out and pasted in the book, with definitions of cell parts written under the flap. In another assignment, the student cut out pictures of body parts and pasted them in the book partially labelling them. With all of the emphasis placed by the educators and administrators on STEM (science, technology, engineering, and math) and rigorous science instruction, Shedrick was appalled that Snow was teaching and assigning her students what he described as “baby work.” From the record and Snow’s testimony, there is little explanation as to when or how she graded these assignments. The students testified that they did not know the purpose of the assignments or how they were graded. Their parents did not know how she arrived at the grades and, when asked, she was not able to explain the grades to them. In addition to the low-level nature of the assignments in FOCUS, Shedrick objected to Snow giving a grade for a parent’s signature, bell work, notebook checks, reflections, and review of the code of student conduct. These were not academic grades, in his opinion. Parents also complained that they never knew where their child stood in the class because of the irregularity of Snow’s grading. Shedrick testified that parent complaints came in “fast and furious” because of Snow’s habit of “dumping” grades at the end of the marking period. John Frank (“Frank”), the OPS administrator, conducted an audit trail in FOCUS which enabled him to determine the dates that grades were entered and found that grades due earlier in the grading period were added a day or two before the end of the marking period, often drastically affecting a student’s grade with no warning or opportunity for the student to improve. For example, on March 14, 2016, FOCUS indicated Snow had entered six grades. Three days later she had entered four more grades for assignments that should have been added weeks prior. It is nearly inconceivable that entering two grades weekly could have been so difficult, especially for an experienced science teacher. For Snow, however, it was a constant uphill climb. When she met with Shedrick and, at times, with Valencia Walker, and later Frank, each told her “just put in two grades a week.” She said she did not have to. At the hearing, she claimed that she was “confused” when she was told the school district wanted two grades. She “preferred” to enter only one grade and reasoned that her assignments were so “intense” that one grade for her was really the equivalent of two grades for another teacher. Her lessons and assignments could in no way be deemed “intense.” At one point, she said she tried to put in two grades, but did not have time. Later, she said “my goal was to put in two grades a week. The reason why I wasn’t able to put in two grades a week at the end was because of the testing schedule and the pacing guide.” This explanation is almost nonsensical. As evident from her belief that her assignments were “intense,” Snow appears to have no insight into the lack of academic rigor in her classroom. At the hearing, she tried to explain the complexity involved for students to answer two questions in their textbooks on cells. She defended her extensive use of the textbook and instructional strategy of having the students read aloud from it on the basis that she had a lot of “special learners” who needed to learn to read. The record does not support her contention that her students needed “special” treatment due to learning disabilities or other special needs. Snow blames many of her deficiencies on the students’ misbehavior in her class. Testimony confirms that at times the class was loud and the students sometimes disrespectful. This is not uncommon when teaching middle school students. A parent called by Snow to testify characterized her observation as a class “out of control.” Snow, however, fails to recognize that her inability to deliver meaningful instruction caused, or at least substantially contributed to, the student behavioral issues. If the students were more engaged and assigned to more meaningful tasks, classroom decorum would have improved. Doughty summarized the correlation well when he testified, “The more low- rigor, the more textbook work . . . the more misbehavior I see happening. The more I see classrooms that engage students in fun, interactive . . . cool science, engaging science, the less misbehavior I see.” Snow attributes the misbehavior to the students, not her teaching methods or poor classroom management skills. She claimed that she was assigned “more than three fourths of the 6th grade SE/ESOL and 504 population . . . in addition, I have the majority of the lower level 6th graders.” Shedrick and the sixth-grade assistant principle, Jason Helbling, testified that the population of students in Snow’s class was no different than any other sixth-grade class. In fact, Helbling pulled the grades of the students Snow complained were nonperforming and found they received A’s, B’s, and C’s in their other classes. Snow’s testimony on this point is not credited. Helbling testified that he was called to Snow’s room much more frequently than any other teacher’s classroom in the school; in his words, as much as ten times more frequently. She had no interventions set up to redirect the students, but would instead call administrators to have those misbehaving or rowdy removed from class. She complained to Helbling that the students were terrible and not teachable. He counseled her to call home to the parent and “try to do other things than throw the student out of class and having them miss content.” Snow claimed she contacted parents but when Helbling called them himself, he learned that there had been no follow-up by Snow in the form of telephone calls. Helbling found that the students characterized by Snow as “rough,” “terrible,” and “not teachable” did not have the same problems in other teachers’ classes. He visited other classrooms to observe these students’ interaction with the teachers. The difference was that the other teachers had classroom management strategies and reached out to the students. Inexplicably, Snow did not even know the names of her students, something Helbling found inexcusable after several months of school. He testified, “If [by end of January] we don’t even know the names of our students, we have a problem, and a lot of that is linked to classroom management. How can you manage a classroom if you don’t know who your students are?” During a classroom visit on January 29, 2016, Helbling walked into a classroom in disarray. A chair was sitting on top of a desk; most of the students were talking; bell work took 21 minutes with no student actually working on bell work (“bell work” are brief assignments given at the start of class to warm up the students, settle them down, and prepare them for the day’s substantive lessons); five kids were lined up at the pencil sharpener; and Snow “sat at her desk the entire time that the observation took place.” Annual Evaluation at Bay Point for 2015-2016 School Year When the time came for the annual evaluation for the 2015-2016 school year, the district had fully integrated the Marzano appraisal system for use in all schools, which as noted above, is designed to grow a teacher’s practice. The comprehensive instrument is comprised of three components: the instructional practice, the deliberate practice, and the student growth score. The Instructional Practice portion counts for 56.67 percent of the evaluation and consists of four domains. Domain 1 is “Classroom Strategies and Behaviors” consisting of 41 instructional categories that happen in the classroom. Administrators conducted seven informal and two formal observations (mid-point and final) for completion of Domain 1. Domain 2 is “Planning and Preparing.” Domain 3 is “Reflecting on Teaching” and Domain 4 is “Collegiality and Professionalism.” Administrators also conducted nine walk-throughs which contributed to Domains 2-4. In each of the four domains, a teacher is rated based on a scale with the lowest being “not using” and the highest being “innovating.” The scores are tallied in the iObservation database. Snow received a score of 1 which is an “unsatisfactory” rating for the instructional practice portion. Her weaknesses in classroom management, instructional delivery and planning, and failure to cooperate were noted in many instances by her evaluator. The Deliberate Practice portion of the instrument counts for ten percent of the overall score. The rubric dictates that a teacher may receive a score of 1, 3, or 10. Teachers receive points, either 1, 3, or 10, depending on whether they submitted a professional development plan and then whether they implemented it. Snow received three out of ten points because she submitted a deliberate practice plan, but did not attend the required professional development. On a four-point scale, this translated into a score of 1.2. The Student Growth score is worth 33.3 percent of the overall score. Snow received a score of 3.0 on this section resulting in a final score on her evaluation of 1.69 or “needs improvement.” Cerreta testified that Snow is the only teacher in the district, out of more than seven thousand teachers, ever to have received three consecutive ratings of “needs improvement.” Cerreta confirmed that each of the evaluators for the 2013-2014 through 2015-2016 school years received training and were certified by the district to conduct an evaluation using the respective evaluation instruments. The administrators properly administered each of the evaluation instruments and Snow never challenged, through a grievance, the process followed by the administrators in conducting the evaluation. Cerreta’s office is responsible for submitting the appraisal systems to FLDOE for approval each year and confirmed that each of the respective systems described for the three-year period were submitted and approved by FLDOE. It bears noting and a brief discussion as to the integrity and character of Principal Shedrick and the other administrators who patiently worked with Respondent throughout her tenure with the Pinellas County School District and, especially, at Bay Point. It is rare to see a principal and district administrators who not only give a teacher the benefit of the doubt when it comes to her shortcomings, but go well above the call of duty to counsel; offer guidance at many levels; and utilize so many already overworked district personnel in an attempt to make one teacher not only a better educator, but successful in every way relating to her classroom and her students. Shedrick, his fellow administrators, and other teachers at Bay Point spent an inordinate amount of time working with one teacher, Snow, who not only rebuffed their efforts to make her successful, but seemed to resent their attempts to make her a more effective teacher. Only after constant failures by Snow in the classroom, and her apparent inability or lack of desire to improve or learn from all the advice and instruction given, did Shedrick reach his breaking point and move forward with the steps leading to Snow’s proposed termination. Less dedicated individuals would have pulled the plug far sooner, and Shedrick, along with all the administrators involved, should be commended for their patience and desire to make an experienced science teacher, a valuable commodity in the district, successful to the point where she could better further her students’ education in such a vital academic subject in today’s world. Based upon the extensive evidence and testimony, all these efforts were unappreciated and, ultimately, made in vain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 24th day of February, 2017. COPIES FURNISHED: Laurie A. Dart, Esquire Office of General Counsel Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Dr. Michael A. Grego, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue The issue in this case is whether there is just cause to terminate Tangela Smith’s employment with the St. Lucie County School Board based upon the allegations made in its Petition for Termination.
Findings Of Fact During the 2018-2019 school year, Smith was a facilitated support teacher that had various days where she either was late or missed her scheduled classroom time. When Smith missed classroom time, those ESE students assigned to her did not receive their specialized instruction. Smith missed classroom time because she was unable to fulfill all her facilitated support job responsibilities because her job duties had conflicting times. In addition to her scheduled classroom time, she was also assigned other duties such as ESE testing or IEP preparation, which were sometimes to be performed at the same time she was to provide push-in services. Smith’s tardiness was directly attributable to her daily schedule of multiple 30-minute classroom segments of time without even a minute break between each 30-minute allotted block before Smith was to be in the next classroom providing push-in services to ESE students. No time was scheduled for Smith to walk between classes or set up for the next class. At hearing, Smith credibly testified, “I don’t have sufficient time to fulfill [the] schedule.” All Smith’s duties she performed benefitted ESE students. ESE Department Chair Spies told Smith what to do related to ESE services, and she was expected to follow his instructions. No evidence was presented at hearing that Smith misused her work time. Instead, the record only showed Smith had conflicting duties to perform at the same time. She was expected to attend her daily classroom schedule and provide ESE testing or work on IEP-related assignments at the same time. At hearing, Smith testified credibly and persuasively, “I couldn’t be in two places at one time. So, I just tried to make up the time with the students I missed.” At times, when Smith was scheduled to be with students in a teacher’s classroom, the ESE department chair instructed Smith to complete FTE forms in his office to secure payments for the District. Other times, Smith would test ESE students, and, because most ESE students had no time limits for testing, Smith would still be testing when she was supposed to be providing push-in services. When Smith was unable to make scheduled classroom times, because she was performing other job duties, she attempted to try to make up for some of her push-in services missed. However, most of the time Smith was not able to make up the time because either the teachers or her ESE students were unavailable at the new time. At hearing, Smith testified compellingly that, “I did the best I could when testing was over to try to make up time.” Smith’s schedule was so tight that she did not even have time to talk to teachers about her students. On September 11, 2018, Smith acknowledged her scheduling challenges and tried to resolve them by notifying Principal Logue that she was having problems performing her push-in duties. Smith specifically expressed her inability to talk to the teachers to get a handle on what her students were doing. By email the next day, Logue pointed to times before and after school or Smith’s planning periods, where the ESE chair scheduled Smith to attend IEP meetings, as time periods Smith could meet with other teachers. Logue also dropped in the same language from her 2017-2018 evaluation regarding his expectation that she follow a strict schedule. After Smith notified Principal Logue of her time challenges, besides the email, he did not suggest or provide Smith any extra time or adjust or change her unmanageable work schedule in order to meet with the teachers and complete her scheduled duties. Smith could not have met Principal Logue’s expectations because the strict schedule had no breaks to get from one classroom to the next classroom, and Smith also had numerous conflicting duties to perform at the same time. At hearing, Auciello testified that it was not unreasonable for Smith to arrive late to class because of the way the schedule was structured and the fact that Smith had to travel from classroom to classroom. After addressing her challenges with Principal Logue, Smith continued to try to juggle her schedule and complete all her job duties that oftentimes had time conflicts. Smith prioritized third-grade testing following the instructions of the ESE department chair who told her to make that her work priority. Principal Logue was well aware that Mariposa ESE students were missing specialized instruction because teachers were reporting and complaining to Logue that Smith was either late or failed to show up to provide ESE facilitated support. He also received complaints that Smith was testing other students at various times when Smith should have been in a particular teacher’s classroom. Auciello specifically complained to Principal Logue on two occasions that instead of Smith being in her room providing her students push-in specialized instruction, Smith was testing elsewhere. After receiving the teacher complaints about Smith, Logue never notified nor addressed the no show allegations with Smith, took any action to remedy the missed services or did anything to rectify Smith’s time conflicts to prevent any further recurrences. Logue did not even issue any orders or directives regarding her failure to show up for facilitated support. Logue’s first action regarding the allegations against Smith was to report her to human resources on September 25, 2018. Logue’s chart outlining Smith’s alleged hours of missed instruction totals 42.5 hours after removing N.G.-R. and D.H., the two students included in the original calculations not assigned to Smith. Smith has never been warned, reprimanded verbally or in writing, or suspended during her tenure with the School Board. On September 26, 2018, Smith received her first discipline when she was placed on leave while Clements investigated the allegations of her failure to follow her schedule.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the St. Lucie County School Board enter a final order (1) rescinding its previous decision to suspend Smith without pay pending dismissal and (2) awarding Smith the back salary, plus benefits, that accrued during the administrative proceedings. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 31st day of August, 2020. COPIES FURNISHED: Barbara L. Sadaka, Esquire St. Lucie County School Board Legal Department 9461 Brandywine Lane Port St. Lucie, Florida 34986 (eServed) Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) E. Wayne Gent, Superintendent St. Lucie County School Board 501 Northwest University Boulevard Port St. Lucie, Florida 34986 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
The Issue The issue is whether Petitioner, Manatee County School Board, had just cause to terminate Respondent's employment as a teacher.
Findings Of Fact The Parties Respondent has been employed as a teacher by the School Board since August 15, 1995. As a member of the School Board's instructional staff, Respondent's employment is subject to Section 1012.33, Florida Statutes (2008),1 which provides that her employment will not be terminated except for just cause. The School Board is a constitutional entity charged with the duty to operate, control, and supervise the public schools within the School District. Exceptional Student Education Exceptional Student Education covers a range of students who have individual needs that must be addressed by a specific plan for education, called an Individual Education Plan. The drafting and maintenance of IEPs is governed by federal and state law. The government may complete audits of district ESE records from time to time, although audits are not completed every year. However, the School District self-reports ESE compliance issues to the government. IEPs are valid for one year and must be rewritten annually, although not necessarily coinciding with the beginning of each school year. Generally, a draft form of the IEP is prepared and taken to an IEP meeting to be reviewed by individuals who are involved with the student's education ("IEP team"), including ESE teachers, regular education teachers, guidance counselors, and parents. Although everyone who is directly involved with the student's education is invited to the IEP meeting, it is not necessary that each individual attend for the IEP to be valid. For instance, if parents or service providers do not attend, the IEP is not invalid. All members of the IEP team attending the IEP meeting are required to sign a signature page indicating their attendance. The parents of the students are legally entitled to two notices of the IEP meeting, the first being at least ten days prior to the meeting. The notice can be written or verbal, but should be documented in the ESE file. Parents may waive their right to ten days' notice of the hearing. One person is assigned as the school's Local Education Agency (LEA). An LEA must be present at all IEP meetings which are required to ensure that ESE guidelines are followed. Students are required to be evaluated by service providers, such as speech-language pathologists, psychologists, social workers, and occupational therapists and to be re-evaluated every three years. The re-evaluation must be completed within three years from the calendar date of the earliest testing completed in the previous evaluation or re-evaluation. Each service provider is expected to review the file and to complete a re-evaluation. However, a re-evaluation is not required if the student's IEP team determines that such re-evaluation is not needed. Furthermore, re-evaluations are not required to draft an IEP. Prior to any testing, evaluation or re-evaluation of a student, the consent of the parent must be obtained. The consent forms are valid for one year after the parent's signature is obtained. Each student receiving ESE services should have a file which includes documentation, such as his/her IEP. Students who have more than one exceptionality (such as speech-language) will often have more than one file housed in the ESE office. Also, students who have been receiving ESE services for a long period of time often require more than one file folder to contain all of the documents. The School District obtains funds from the government based upon the ESE status of the students in the district. Students who receive ESE services are given more funding than students in regular classes. The funding is allocated on a per-student basis, and ESE students receive different levels of funding depending on the classification of their disabilities. In order to qualify for the funds, IEP and other relevant documents must be in compliance with certain guidelines referred to as FTE or "full time equivalent." There are two FTE periods during each school year wherein the ESE files must be compliant in order to obtain funds; the first one is in October and the second one is February. Respondent's Employment at Haile Middle School Respondent has been employed by the School Board as a teacher for 13 years. For the past several years, and at all times relevant to this proceeding, Respondent was an ESE teacher at Haile. In 2005-2006, after the preceding ESE department chair was transferred to another school, Janet Kerley, principal at Haile, asked Respondent if she would serve as the ESE department chair. Respondent accepted the job and had served continuously as ESE department chair until early February 2008. While serving as ESE chair, Respondent continued to work as an ESE teacher, and her position was designated as such by the School Board. As ESE department chair at Haile, Respondent received a stipend.2 In 2005-2006, when Respondent first became the ESE department chair, her work day was divided evenly between teaching her scheduled ESE classes and ESE department chair duties. Training for ESE Chair Position No special training was provided for Respondent to serve as ESE department chair. The School District assigned an ESE specialist to each secondary school, including Haile. The ESE specialist's role was to provide support to the ESE department chair. However, ESE specialists had no supervisory responsibilities for the ESE department chair. In the 2006-2007 school year, Emma Mileham, the ESE specialist assigned to Haile that year, gave Respondent a checklist titled, "ESE Department Chair Responsibilities." She also distributed "monthly mind joggers," titled, "ESE Teacher Activities." The checklist of the department chair's responsibilities included reviewing ESE files. During the 2007-2008 school year, Amy Lloyd, the ESE specialist assigned to Haile, interacted with Respondent once a week as part of the school's Child Study Team. However, Lloyd did not provide any list of job responsibilities to Respondent. Kerley evaluated Respondent's work performance in the past and found her work to be satisfactory. Prior to the allegations that gave rise to this action, Kerley never perceived deficiencies in Respondent's ability to maintain the ESE files. During Respondent's 13-year tenure as a teacher in the School District, she has consistently received satisfactory evaluations and has never been the subject of a disciplinary matter. Changes Impacting ESE Department in 2007-2008 Jerry Hernandez was appointed as the assistant principal at Haile for the 2007-2008 school year. Kerley designated Hernandez as the school's ESE administrator. As ESE administrator, Hernandez was responsible for ensuring compliance with FTE requirements, implementation of IEPs, and monitoring the ESE department chair. In the 2007-2008 school year, two changes were implemented which impacted the ESE Department at Haile and those working in that area. First, as part of an overall change implemented by the School District, ESE teachers at Haile were required to use a new computer system for creating ESE documents (i.e., IEPs, notices, consent forms, etc.). Second, there were significant changes in job responsibilities of the ESE department chair at Haile implemented at the school level. Computer System Changes Prior to the 2007-2008 school year, Haile was using a software program called Dynamo to assist in the maintenance of ESE files. Dynamo was primarily based upon the use of "hard copies" of relevant documents and was limited to each user's computer. At the end of the 2006-2007 school year, Haile switched from the Dynamo software to a web-based program called the A3 system ("A3"). The main difference between Dynamo and A3 was that A3, as a web-based program, allowed individuals to view relevant documents from any computer by logging into the system. After Haile switched from Dynamo to A3, the teachers and service providers were encouraged to input all previous IEPs drafted in Dynamo into the A3 system. In fact, after the School District switched to the A3 system, there was a "push" by administrators to have all IEPs inputted into A3. To accomplish this, Respondent typed IEPs drafted in Dynamo and those received from other states into the A3 system verbatim, so that teachers and other individuals would have access to the information from their computers. Also, other Haile employees, including ESE teachers Athena Jantzen and Alice Moreland, and speech-language pathologist, Marie Bryant-Jones, input Dynamo IEPs into the A3 system. At the end of the 2006-2007 school year, the speech- language pathologist then assigned to Haile, Bryant-Jones, input goals for each student who received speech services into the A3 system. The next speech-language pathologist was free to revise the goals as she saw fit. The fact that Respondent and ESE teachers were inputting IEPs originally drafted in Dynamo into the A3 system was common knowledge at Haile. The School District provided training in the A3 system for ESE teachers at or near the end of the 2006-2007 school year. Additionally, on March 20, 2007, a district-sponsored one-on-one training was offered to the staff of Haile. Respondent attended that session and the training staff spent that day reviewing and/or explaining the A3 system. The training staff also worked with and helped Respondent input the current IEPs in the A3 system in order "to speed up the process." To start a new IEP in A3, the user is required to click on "Copy IEP" on the computer page. Clicking "Copy IEP" makes an identical copy of the last IEP in the system, including goals and objectives for other information about the student. The dates for the previous IEP remains the same until the user manually changes the date. This copy is a "draft" which becomes the new IEP when the modified or updated information is input into the A3 system. ESE Department Chair Changes in Responsibilities in October 2007 Prior to October 2007, ESE teachers at Haile were responsible for the ESE files of the students they taught, and each ESE teacher drafted the IEPs for their students. In October 2007, Hernandez told Respondent that as the department chair, she was now to assume responsibility for all of the ESE files at Haile. Hernandez explained to Respondent that this change was being made because the ESE teachers had complained to him that they could not, or no longer wanted to, take care of the ESE files and to teach their classes. When Hernandez told Respondent that she was now responsible for maintaining all of the ESE files, Respondent informed Hernandez that she was not happy about that added responsibility. In response, Hernandez told Respondent not to worry about the files, indicating that they (the files) would "take care of themselves." Hernandez than told Respondent that she should concentrate on giving as much support to the teachers as possible. In October 2007, when Hernandez assigned Respondent the responsibility for maintenance of all ESE files, there were approximately 170 ESE files that needed to be maintained in compliance with FTE guidelines. Except for the foregoing, Hernandez never specifically informed Respondent of what her new duties were as ESE department chair. In October 2007, after being given the responsibility for all ESE files, Respondent drafted IEPs into the A3 system for students she did not have in class by getting feedback from the students' teachers and reviewing the students' progress reports. One ESE teacher at Haile, Athena Jantzen, continued to draft some of her own students' IEPs, as Respondent was overloaded with work. Service providers, such as speech-language pathologists and psychologists, were still expected to draft and enter their own goals into the A3 system. If a student received only speech services, the speech-language pathologist was responsible for drafting the student's IEP and maintaining the file. After being assigned the responsibility for all the ESE files, Respondent asked the ESE clerk to print copies of various active IEPs from A3. Respondent requested the copies so that a copy of the student's IEP could be included in each file related to that student. The IEPs and related documents were printed from the A3 system, not photocopied, and reflected a print date of October 17, 2007, on the top of each page. The executed signature pages of the IEP which could not be printed from A3, were not photocopied by the ESE clerk and were not included in each file. After being assigned the responsibility for all the ESE files, Respondent continued to teach her assigned ESE class and perform cafeteria duty on a daily basis. Respondent was also pulled almost weekly from her department chair responsibilities to cover additional classes. Responsibilities Related to ESE Compliance Issues As chairperson for the ESE Department, Respondent was charged with the maintenance and oversight of IEPs. At Haile, the guidance counselor is designated as the school's LEA. At Haile, the registrar was designated by the school administration to set up IEP and revision meetings. The ESE clerk, who worked at Haile one day a week, was assigned to mail out the notices of meetings to the parents. When students enrolled at Haile from another school, the registrar or guidance counselor would inform Respondent if the child required ESE services. Error Reports Respondent received an "error report" from the school's registrar almost weekly. The error report identified potential compliance issues with the ESE files, but did not represent a completely accurate accounting of the files. For example, it would not identify compliance issues, such as a missing signature page for an otherwise valid IEP. Respondent used the error report to ensure that IEPs were timely updated and reviews for re-evaluations were timely initiated. Hernandez, as ESE administrator, received an "error report" about three times a year. Error reports were available to service providers who requested them. These error reports were obtained and used by some service providers to determine when the re-evaluations for which they were responsible were due. Systems to Notify Service Providers of Re-Evaluation Dates While ESE department chair, Respondent used the following three different systems to notify and/or remind service providers when students needed to be re-evaluated: (1) the "white board" system; (2) the "file drawer" system; and (3) the "binder" system. At some point prior to the 2007-2008 school year, Respondent used the "white board" system. Under that system, Respondent listed the names of students whose re-evaluation date was approaching and the due date of the re-evaluation on a "white board" that was located in the ESE office. Respondent updated the "white board" monthly. In the 2007-2008 school year, Respondent used the "file drawer" and "binder" systems to notify service providers of upcoming re-evaluation dates. The "file drawer" system consisted of placing all files that needed to be reviewed and/or files of students who were ready for testing in a file drawer designated and labeled for that specific category. In the case of a file review, Respondent would initiate the file review and then put the ESE file in a drawer labeled, "File Review." The service providers would simply go to the drawer and pull out student files to complete their review. Once the file review was completed and the student was ready for testing, the ESE file would be placed in the re-evaluation and/or evaluation drawer. At the beginning of the 2007-2008 school year, Respondent informed all of the service providers assigned to Haile of the "file drawer" system. Among the service providers Respondent informed about the "file drawer" system were Krista Cournoyer, a school psychologist, and Julia Caldwell, a speech- language pathologist. Respondent specifically explained the use of the file drawers to them, because this was their first year working at Haile. The "file drawer" system is a typical system used by schools in the School District, but schools are not required to use that system. Instead, schools have the option of developing and using any system they choose. Early in the 2007-2008 school year and at all times relevant to this proceeding, the "binder" system was initiated at Haile.3 Under that system, the names of students who required testing and re-evaluations were placed in a binder (notebook) in the ESE office. Respondent and Karen Ciemniecki, the ESE evaluator assigned to Haile, updated the information in the binder. The various service providers could utilize the information in the binder to determine which students they needed to test and/or re-evaluate. Service providers were free to use either the "file drawer" or "binder" system to determine when they were to review a file and re-evaluate a student. In addition to utilizing those systems, the service providers could also obtain an error report which would provide information concerning re-evaluations which were due the following month. Both the "file drawer" and the "binder" systems provided the service providers the means to determine when a review and re-evaluation was due, without the direct assistance of Respondent. During the 2007-2008 school year, several service providers, including Ciemniecki and Caldwell, used the "file drawer" and/or "binder" systems to determine when student file reviews, testing and re-evaluations were to be done. In addition to using the established systems, both Ciemniecki and Caldwell obtained error reports from either Respondent or Haile's registrar. Cournoyer, like the other service providers, was aware of the "file drawer" and "binder" systems and knew how to use them. Nonetheless, Cournoyer believed that the systems were inadequate and did not ensure that she would consistently know when the re-evaluations for which she was responsible were due. Although the systems in place were not perfect, if utilized, they provided a reasonable means to determine when reviews and re-evaluations were due. Moreover, the error reports, if obtained and used, provided an additional source by which service providers could determine about a month in advance when re-evaluations were due. There were times when there were files in the designated file drawer that Cournoyer needed to review. In those instances, Respondent removed those files from the drawer and handed them to Cournoyer, indicating that they needed to be reviewed. Events Leading to Investigation In January 2008, Cournoyer believed that it appeared that she was not completing re-evaluations in a timely manner. Cournoyer also believed that the reason for any delays in completing the re-evaluations was that she did not get all the requisite forms for those re-evaluations until they were overdue. On or about January 31, 2008, Cournoyer was conducting a file review for Student E.A. While reviewing the file, she noticed that an IEP meeting was conducted for this student on January 8, 2008. Upon reviewing the file, Cournoyer had two concerns. First, she had not been invited to that IEP meeting. Second, the documentation in the file indicated that the meeting occurred three weeks before Cournoyer was notified of the need to conduct a file review for this particular student. While reviewing the file of E.A., Cournoyer noticed that the student was receiving services from Caldwell, the speech-language pathologist. She then gave the file to Caldwell who, upon review of the file, noticed that the speech goals were already written on the student's active IEP. Caldwell was concerned that she had not written those goals, as it had been her intent to dismiss the student from speech-language services, and that she had not been invited to the IEP meeting. Caldwell discussed her concerns about the speech goals for E.A. with Respondent, who instructed her to set up a meeting to revise the IEP. Cournoyer shared her concerns about "overdue" re-evaluations in an email to Respondent, but disagreed that there was a system in place that addressed her concerns. Dissatisfied with Respondent's response to her email, Cournoyer then sent an email to members of Haile's Child Study Team, including Lloyd, the ESE specialist. After receiving a response from Lloyd, Cournoyer sent an email about her concerns to the Haile administrators, including Hernandez, and ESE staff on or about February 1, 2008. After receiving Cournoyer's email, Hernandez requested that she provide additional information about her allegations and concerns. In response to that request, Cournoyer provided Hernandez with a list of students and dates of re-evaluations that were overdue. On Sunday, February 3, 2008, Hernandez and Cournoyer met at Haile and reviewed the ESE files. During that review, they found some files that were missing signature pages and that one IEP appeared to have an altered date on a consent form. After conducting a preliminary investigation, Hernandez reported his findings to Principal Kerley who, in turn, contacted the School District's Office of Professional Standards ("OPS"). OPS then initiated an investigation of Respondent and the maintenance and formulation of the ESE files at Haile. Respondent was placed on administrative leave on February 5, 2008, before the February 2008 FTE cut-off date. During that leave, Respondent was prohibited from communicating with School District employees or entering the premises of Haile. Prior to being placed on administrative leave, Respondent was not informed of the allegations against her. The matter was assigned to Debra Horne, a specialist with OPS. After reviewing an email about the case from Hernandez, Horne decided to allow the ESE department to review the ESE files at Haile.4 On February 6, 2008, the ESE team, consisting of all the secondary ESE specialists and the ESE coordinator, Joe Roberts, conducted a preliminary review of the ESE files at Haile for compliance issues. That same day, Roberts memorialized the review team's preliminary findings in an email to the ESE director, Ron Russell. According to the email, the ESE team conducted a two-hour review of the ESE files and found about ten files with problems (i.e., missing signature pages, what appeared to be an altered consent form, and IEPs which appeared to be copied from previous year's IEPs). The email memorializing the findings noted that the ESE office was not organized and that "many folders and confidential information were spread out in varying locations of the office, not in a secured fashion." The email also noted that the team looked for "numerous folders [files] and could not locate them in the filing system."5 On February 29, 2009, Horne met with Roberts and Lloyd to review the ESE files and the ESE team's preliminary findings. Based on the review of the files, the OPS determined that 15 ESE files were non-compliant for FTE (funding) purposes and that another five ESE files had compliance issues that did not affect funding. On March 13, 2008, Horne interviewed Respondent about the findings of the ESE review team. The purpose of the interview, which lasted most of the day, was to allow Dozier the opportunity to offer an explanation of the alleged compliance issues concerning specific ESE files.6 Prior to the March 13, 2008, interview, school officials did not notify Respondent of the allegations or allow her to respond to those changes. After completing the investigation and interviewing Respondent, Horne published her findings in an investigative report. The findings in the OPS investigative report and which are the bases of the charges against Respondent in this case involve the non-compliant ESE files referenced above. Specifically, the investigative report found and determined that: (1) 15 ESE files were non-compliant for FTE or funding purposes; and (2) five ESE files had compliance issues that did not affect funding. As a result of the 15 non-compliant ESE files, the affected students were returned to basic funding, causing a decrease in the overall funds available to the School District. Nevertheless, those identified students were provided with services in accordance with their IEPs. Non-Compliant ESE Files Resulting in Loss of Funds Student A.C. The investigative report found that there was no signature page in the ESE file of A.C. for the April 10, 2007, IEP. Without a properly-executed signature page, the IEP is invalid. Respondent testified credibly that she did not know if she conducted the IEP meeting when the April 10, 2007, IEP was developed, but believed that A.C. may have had more than one file. This belief was based on the fact that A.C.'s primary disability was "language impairment," and A.C. received speech services. Typically, such students had two ESE files, one of which was kept by the speech-language pathologist. The April 10, 2007, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Respondent further testified credibly that she could have and intended to locate the signature page before the FTE window closed. Student J.B. The investigative report found that the ESE file of J.B. did not contain a signature page for the November 6, 2006, IEP. Without a properly executed signature page, the IEP is invalid. The November 6, 2006, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Moreover, there is no evidence that Respondent conducted or was present at this IEP meeting. Respondent testified credibly that she could have and intended to locate the signature page for the November 6, 2006, IEP before the FTE window closed. The investigative report found that a second IEP for J.B. indicated that it was drafted on January 25, 2008, but the registrar was informed it was drafted on October 23, 2007. However, there is nothing in the record to establish that the registrar made such a statement. Student Z.L. The investigative report found that the ESE file of Z.L. did not contain a signature page for the March 19, 2007, IEP. The IEP for Z.L. dated March 19, 2007, was drafted while Z.L. was attending Freedom Elementary School ("Freedom"), and, thus, was drafted by employees of Freedom. This IEP was valid through March 18, 2008. Freedom is a school in the School District, and the IEP developed at that school was apparently put in the A3 system. The March 19, 2007, IEP was printed on October 19, 2007, and was a copy of the IEP from Freedom dated March 19, 2007. Because the IEP printed in October 2007 was a copy of a valid IEP, no signature page was required. No determination was made as to whether the original March 19, 2007, IEP, with the fully executed signature page, was ever sent by Freedom to Haile. The signature page could not be printed from the A3 system. Therefore, unless the original or a photocopy of the fully executed signature page of the March 19, 2007, IEP had been sent to Haile, the school would not have the signature page. Student A.L. The investigative report found that there was no temporary IEP written for A.L. after the student transferred to the School District in September 4, 2007, from an out-of-state school. In September 2007, when A.L. enrolled at Haile, the student had a valid IEP from the out-of-state school district. The out-of-state IEP was for the period March 7, 2007, through March 6, 2008, if the student had remained in that state. Once the student was enrolled, the School District had six months from the student's enrollment date to develop a temporary IEP. Accordingly, a temporary IEP should have been developed on or before March 4, 2008. A temporary IEP was not developed for A.L. prior to or by March 4, 2008, or as of March 13, 2008, when Respondent was interviewed by Ms. Horne. Although the temporary IEP had not been developed prior to Respondent's being placed on leave, steps were being taken to develop the IEP prior to Respondent's being placed on leave. For example, Ciemniecki administered achievement tests to A.L. in late September 2007. Also, Cournoyer was reviewing the student's file and also testing the student. Respondent was placed on leave February 5, 2008, about one month before the temporary IEP was required to be developed. Thus, no conclusion can be reached as to whether Respondent would have taken the necessary steps to ensure that the temporary IEP was developed by March 4, 2008. On the other hand, it is equally apparent that after being placed on leave, Respondent was prevented from and could not take any steps to ensure that a temporary IEP was developed for A.L. Therefore, it can not be concluded that Respondent is responsible for the failure to timely develop a temporary IEP. The credible testimony of Respondent was that she intended to take steps to ensure that an IEP was drafted within six months of A.L.'s enrolling in the School District. An issue was raised regarding what appeared to be inconsistent dates on the Informed Notice and Consent for Evaluation/Re-evaluation ("Informed Notice and Consent") form. That form included spaces in which the following was to be provided: (1) the referral date; (2) the parent's signature, either giving or denying consent for the evaluation; and (3) the date of the signature. The referral date printed or typed on the form is February 26, 2006. The parent's signature, giving consent for the evaluation, was dated September 24, 2007. The concern expressed was that the date of the referral, February 26, 2006, was more than a year and a half prior to A.L. enrolling in the School District. This discrepancy was explained by the credible testimony of Respondent. According to that testimony, the above-referenced consent form was from the Dynamo computer system and had been used to make copies of blank forms to be used. However, the "referral date," February 26, 2006, had been printed or typed on the original form, and that date had been inadvertently left on the form prior to copies of the form being made. Student S.H. The investigative report concluded that S.H.'s IEP dated April 26, 2007, was invalid because it was created at Haile four or five months prior to the student's enrolling in the School District on September 5, 2007.7 The ESE file of S.H. contained a valid IEP dated April 26, 2007, that was drafted while the student was living out-of-state and enrolled in an out-of-state school. That IEP would have been valid through April 25, 2008, had the student remained in the out-of-state school district. In addition to the out-of-state IEP, the ESE file of S.H. also contained another IEP dated April 26, 2007, which indicated that, as of that date, the student was attending Haile. There was also a fully executed signature page for this April 26, 2007, IEP, which had been signed by the parent, Respondent, and six other individuals. In addition to the parent and Respondent, six others signed the signature page of that IEP. Contrary to the allegations, the IEP for S.H. created at Haile was not created on April 26, 2007, four months before the student enrolled in the School District. Respondent testified credibly that she input the data from the out-of-state IEP into the A3 system. However, while inputting information in A3 for the student's new IEP, she neglected to change the IEP plan date from April 26, 2007, to the new IEP plan date. The testimony of Respondent is supported by a careful review of contents of the IEP. For example, the IEP clearly indicates that the student is now enrolled at Haile as a "transfer [student] from out of state."8 The signature page of the Haile IEP also mistakenly shows that the IEP was developed on April 26, 2007. However, the upper right corner of that signature page indicates that the signature page form for S.H.'s Haile IEP was printed from the A3 system at 7:18 a.m., on October 29, 2007, almost two months after S.H. enrolled in the School District. As noted above, only blank signature page forms can be printed from A3. Therefore, the signatures had to be placed on the signature page some time after the form was printed. Respondent's failure to change the plan date of the student's out-of-state IEP to the plan date of the new IEP created at Haile, was due to human error. Student S.R. The investigative report found that S.R.'s ESE file did not contain an IEP, a notice of IEP meeting, or signature page. S.R.'s ESE file contained a valid IEP dated February 8, 2007, drafted while the student was at Gene Witt Elementary ("Witt"), a school in the School District. The IEP was drafted by employees at Witt and was valid through February 7, 2008. The file also contained an IEP with a plan date of February 7, 2008 (the same as the Witt IEP), indicating that the student was attending Haile at the time of the IEP. Respondent testified credibly that she typed the data contained in the Witt IEP, which was in the Dynamo System, into the A3 system so that the data would be available to other teachers. Respondent testified credibly that she had no intent to make it appear that S.R. was attending Haile in February 2007. Respondent further testified credibly that when an individual inputs data into the A3 system, the school that the individual is assigned to automatically "pop[s] up" in A3 as the student's school. The document included in the investigative report that is the basis for discipline against Respondent is a copy of S.R.'s IEP that was created at Witt dated February 8, 2007. That IEP was printed from A3 on October 19, 2007. Because the IEP is a copy of a valid IEP, no signature page was required. Likewise, no notice of the IEP meeting was required. No evidence was presented to establish that the notice and fully executed signature page of the subject IEP were ever received by Haile. Student E.M. The investigative report found that the ESE file of E.M. did not contain a signature page for the April 11, 2007, IEP, and, thus, the IEP was invalid. E.M.'s April 11, 2007, IEP notes that the student's primary exceptionality is "language impaired." During the March 2008 interview, Respondent informed the OPS investigator that she believed E.M., as a language-impaired student, had two ESE files, one of which was maintained by the speech-language pathologist.9 Respondent testified credibly that she could have and intended to locate the signature page or schedule another IEP meeting before the FTE window closed. The April 11, 2007, IEP was drafted during the previous school year and prior to Respondent becoming responsible for the maintenance of all ESE files at Haile. Student M.D. The investigative report found that the ESE file of M.D. did not contain a valid IEP. According to the report, Respondent gave a plan date of November 2, 2007, to the registrar, but failed to create an IEP on that date. On November 2, 2007, a parent conference was called and conducted by Ms. Moreland, a teacher at Haile. Respondent did not attend the parent conference, but about mid-meeting, Moreland went to Respondent's office. Moreland then told Respondent that the team originally intended to remove M.D. from mainstream classes, but during the parent conference decided against it. The November 2, 2007, date may have been incorrectly given to the registrar as the IEP plan date.10 However, the meeting conducted on that date was a parent conference, and unlike IEP plan dates, are not reported to the registrar. It is alleged that the report of the conference and IEP revision sheets were incomplete. However, as a result of the team's decision that M.D. services remain the same (he would remain in mainstream classes), there was no need for the partially completed revision form to be included in M.D.'s ESE file. Thus, Moreland should have discarded that form. M.D.'s ESE file included a valid IEP dated February 8, 2007. This IEP was valid through February 7, 2008. The short-term objectives from M.D.'s 2007 and 2008 IEPs were identical. The latter IEP was dated March 6, 2008, after Respondent was on administrative leave and Jantzen was interim department chair. Student E.R. The investigation found that E.R.'s sixth-grade IEP appeared to be copied "exactly" from the student's fifth-grade IEP. The concern was that the information copied from the fifth-grade IEP to the sixth-grade IEP did not accurately reflect an appropriate measurable annual goal in the area of math. The annual measurable goal on E.R.'s fifth-grade IEP and copied on the student's sixth-grade IEP was that the student "will satisfy fifth grade math requirements." However, during the investigation, it was established that the student was performing above the fifth-grade level in math at Haile. Thus, that previous math goal should have been changed.11 The fifth-grade IEP was developed on December 7, 2006, when E.R. was enrolled at Freedom Elementary School ("Freedom") and remained effective through December 6, 2007. E.R. was enrolled as a sixth-grader at Haile in the 2007-2008 school year. Therefore, the fifth-grade IEP was effective the first few months of E.R.'s sixth-grade year at Haile. Pursuant to the administration's instructions, after E.R. enrolled at Haile, Respondent input the information from the December 2006 IEP into A3.12 Although E.R. was in the sixth grade, the IEP was effective until December 6, 2007. The December 7, 2006, IEP, upon which the OPS refers, was printed on October 19, 2007, and is a copy of the IEP developed at Freedom, except that E.R.'s school and grade had been changed. The student's school was changed from "Freedom" to "Haile" and the current grade was changed from fifth to sixth.13 Respondent testified credibly that she did not know who changed the grade and school on E.R.'s December 2006 IEP. Moreover, no evidence was presented as to who made those changes. However, undoubtedly, on October 19, 2007, E.R. was enrolled at Haile and was in the sixth grade. Respondent testified credibly that in inputting E.R.'s December 7, 2006, IEP, developed at Freedom, into the A3 system, she did not intend to make it appear that E.R.'s December 7, 2006, IEP was developed at Haile. Student C.D. The investigative report found that Respondent gave the registrar an IEP plan date on January 30, 2008, but A3 indicated the meeting was held the following day. Having the IEP meeting on the following day would not necessarily be a violation.14 However, C.D.'s ESE file did not contain a notice of a January 30 or 31, 2008, IEP meeting, an IEP, or a signature page for either of those dates. If a meeting were held on either of those days, a notice of the meeting and a signature page should be in the file. C.D.'s ESE file contained a valid IEP dated February 5, 2007, that was valid through February 4, 2008. Respondent testified that she intended to draft another IEP and hold a meeting before the deadline, which would have brought the file into compliance with the FTE requirements. Notwithstanding Respondent's testimony, there was no indication that an IEP plan meeting had been scheduled on or before February 4, 2008, and that notices of such meeting had been sent to parents and other appropriate individuals. Unless an IEP plan meeting had been scheduled and properly noticed, regardless of Respondent's intent, an IEP could not have been developed on or before the February 5, 2007, IEP expired. Student J.D. The investigative report found that the goals from J.D.'s 2008 IEP are identical to the student's 2007 IEP, which was effective from January 26, 2007, through January 25, 2008, unless and until a new IEP was developed. A new IEP ("2008 IEP") was developed for J.D. on January 14, 2008, and was effective from that date until January 13, 2009. During her March 2008 interview with OPS, Respondent informed Horne that she was taught that the goals of a student who was not meeting with success could be carried over to the next year. Other district employees confirmed that it was common practice to carry over goals from one year to the next. J.D.'s 2007 IEP indicates that Jantzen was the contact person for the IEP and that Respondent was not invited to the IEP meeting. J.D.'s 2008 IEP indicates that Respondent was not invited to the IEP meeting. Jantzen signed the signature page of this IEP as the ESE teacher, and Nosal, Moreland, Edmonson, and J.D.'s parent also signed the page. Jantzen, the current ESE department chair at Haile, testified credibly that a student's goals could be carried over to the next year, if deemed appropriate. According to Jantzen, it would be proper to include a note on the IEP regarding the reason(s) why the goals were carried over. However, there is no indication that Jantzen did so in J.D.'s file. Student M.M. The investigative report found that M.M.'s IEP dated April 4, 2007, did not include an LEA signature. Respondent informed OPS that it was probably an oversight that the LEA failed to sign the signature page. Respondent testified credibly that she would not have held a meeting if an LEA was not present, and it was likely that she anticipated an LEA coming or that the LEA was in attendance, but failed to sign the sheet. Typically, in the School District, the ESE department chair is the designated LEA at his/her respective school. However, at Haile, the school's guidance counselor, not the ESE department chair, is the designated LEA. If and when the guidance counselor at Haile is unavailable to serve as LEA, other individuals at the school, including Respondent, as the ESE department chair, were authorized to act as LEA. The failure to obtain the signature of an LEA at the April 4, 2007, IEP meeting was an oversight. Respondent was at that meeting and signed the signature page as the ESE teacher/evaluator. In the absence of the guidance counselor or another person designated as LEA, Respondent could have signed as LEA in addition to signing as ESE teacher/evaluator. Respondent was not aware that the LEA had not signed the form until she (Respondent) was interviewed by OPS. If Respondent had become aware of the problem prior to being placed on administrative leave, she could have taken one of two steps to correct the situation before the FTE window closed. To correct the omission of the LEA signature, Respondent could have scheduled another IEP meeting if no LEA was present. According to Hernandez, corrective action could have been taken by having the LEA sign off after the meeting, if that person had attended the meeting, but forgot to sign.15 Due to her oversight, Respondent took no corrective action to obtain the signature of an LEA on M.M.'s IEP dated April 4, 2007. As a result of this oversight, the IEP was not compliant for the October 2007 or the February 2008 cut-off date. Student B.R.H. The investigative report found that B.R.H.'s IEP dated March 6, 2007, did not include an LEA signature. The effective period of that IEP was March 6, 2007, through March 5, 2008. Respondent signed the signature page of the March 6, 2007, IEP as the ESE teacher/evaluator. In addition to signing the signature page as the ESE teacher/evaluator, Respondent, as ESE department chair, also could have signed as LEA if the primary LEA representative was not at the meeting. The corrective action discussed in paragraph 148 could also have been taken if the LEA representative attended the meeting, but left without signing the signature page. Respondent was not aware of the omission of the LEA signature until it was called to her attention during the March 13, 2008, OPS interview. Had Respondent been aware of that omission prior to that time, she could have taken appropriate corrective action. Because Respondent was unaware of the situation prior to that time, no corrective action was taken prior to the October 2007 FTE cut-off date. Student J.G. The investigative report determined that the ESE file of J.G. could not be found. Despite that determination, it was not established when this student enrolled at Haile and/or if that student's ESE file was ever delivered to Haile. Moreover, at this proceeding no testimony or evidence was presented as to whether the ESE file was found after Respondent was placed on administrative leave. As ESE department chair, Respondent was responsible for maintaining the ESE files. However, in this instance, it is unknown when, and if, J.G. enrolled in Haile and/or if the student's file was ever delivered to the school. Assuming, though not finding it, that J.G's ESE file was at Haile, no evidence was presented that Respondent intentionally or otherwise concealed the file.16 The credible testimony of Respondent was that she did not conceal J.G.'s ESE file. Student B.M. The investigative report found that B.M.'s ESE file could not be found. It was not established that B.M. was a student at Haile, whether the student enrolled at Haile, or if B.M.'s ESE file was ever delivered to Haile. Also, no evidence was presented at the hearing as to whether the file was found since Respondent was placed on administrative leave. During the March 13, 2008, OPS interview, Respondent informed Horne that she did not know B.M. Also, Respondent testified credibly that she did not know B.M. and never saw B.M.'s ESE file. There was no evidence presented at the hearing that Respondent intentionally concealed the ESE file of B.M. or that the file was ever at Haile. Alleged Deficiencies Not Resulting in Loss of Funds Student E.A. The investigative report found that Respondent falsified an Informed Notice and Consent form for E.A. This finding was based on a comparison of two Informed Notice and Consent forms for E.A. Informed Notice and Consent forms: (1) advise parents that their child has been recommended for an evaluation, re-evaluation and/or file review; (2) indicate the types of assessments that may be used; (3) provide parents the option to either give or deny consent for the evaluation; and (4) provide a signature and date line for parents to complete. Informed Notice and Consent forms also provide spaces for information, such as the student's name, address, school, grade, and teacher's name ("identifying information"). On both of the Informed Notice and Consent forms for E.A., the identifying information had been written in the appropriate spaces, and the parent had signed and indicated that consent was given for the proposed evaluation. The two Informed Notice and Consent forms were different in several ways as set forth below. On the first Informed Notice and Consent form, someone had written in the student's grade as "6." The middle portion of the form, which describes the student's proposal for evaluation, was not completed. Finally, the parent's signature was on the form, but the "date" line next to his/her signature was not completed. On the second Informed Notice and Consent form: in the space for the student's grade, the number "8" was written over what appeared to be a "6," indicating that the student was in eighth grade, not sixth grade; (2) the middle portion relating to the proposal for evaluation had been completed; and (3) the date, April 23, 2007, previously not on the form, was written next to the parent's signature. The finding in the investigative report assumes that the first Informed Notice and Consent form (which was incomplete) was prepared and signed by the parent when E.A. was in the sixth grade, and the form was copied and modified when the student was in eighth grade. Those alleged modifications included changing the student's grade and inserting a date next to the parent's signature. Respondent testified that she may have changed the grade from "6" to "8" on the second form and did not know if she had added the date next to the parent's signature. While Respondent is not sure how the foregoing occurred or who did it, she explained that, with respect to the grade, it was possible that she wrote the "8" over the "6," because the grade had been initially entered incorrectly.17 According to the OPS report, during the March interview, Respondent advised the investigator that the file she (Respondent) was given to review was E.A.'s speech file and not the student's ESE file. Respondent told Horne during that interview that she was "almost certain that there was another consent form." At hearing, Respondent testified credibly that she believed that there was another consent form elsewhere.18 Based on the record, no determination can be made as to when the date next to the parent's signature was written on the Informed Notice and Consent form or who wrote that date.19 Based on the record, no determination can be made as to who or when E.A.'s grade level was changed from "6" to "8" or whether that change was made to correct an error.20 Student L.H. The investigative report found that the Informed Notice and Consent form for L.H. was falsified by Respondent. On the student's Informed Notice of Consent form, the date next to the parent's signature was January 25, 2008. The date of the parents' signature on that form appeared to have been changed to January 25, 2007. The investigative report found that the "8" in the year 2008 appeared to have been written over what seemed to have been a "7" in the year 2007. No evidence was presented to establish who wrote an "8" on the form, indicating that the form was signed by the parents on January 25, 2008. No evidence was presented as to when the parents actually signed the Informed Notice and Consent form. The credible testimony of Respondent was that she did not change the date on the consent form and did not know who had done so. Student B.H. It is alleged that the ESE file of B.H. did not contain a notice of an IEP meeting and should have since the student's current IEP was to expire on February 6, 2008. No evidence was presented to establish that Respondent directed or instructed the ESE assistant or registrar to send out notices of an IEP meeting for B.H. or that the notices were sent out. Respondent testified that she intended to make the file compliant by sending a notice to the parents before the deadline. Despite Respondent's intentions, unless a notice had been sent out prior to February 5, 2008, and unless she took extraordinary measures, the IEP plan meeting could not be convened and no IEP was developed for B.H. on or before February 6, 2008, when the student's IEP expired.21 Student A.T. The investigative report determined that the IEP for A.T. dated October 4, 2007, did not include a signature page. According to the investigative report, during the March 2008, interview with Respondent, the investigator "reviewed the concern for A.T." (no signature page for the October 2007 IEP). The investigator then advised Respondent that the School District could have lost funding, but the problem was caught in time, and an IEP meeting was held to obtain the signatures. Finally, the investigator told Respondent, "Please explain." Respondent answered by telling the investigator that she could not remember. The investigative report makes no mention of Horne providing any file of A.T.'s to Respondent during the above- described discussion. After the allegation related to the missing signature page was made and Respondent was placed on leave, a signature page for A.T.'s October 4, 2007, IEP, which included Respondent's signature, was found.22 Apparently, before the signature page for the October 4, 2007, IEP referenced in paragraph 189 was located and after Respondent was placed on leave, school officials completed two signature pages for that IEP. These signature pages were backdated to correct the "missing signature page" issue. Ultimate Findings The School Board lost funding due to 15 ESE files being non-compliant with applicable statutes and regulations. However, those non-compliant issues were the result of human errors, mistakes, omissions and oversights of those responsible for the files, including, but not limited to, Respondent. The record is void of any evidence that the ESE files' non-compliance issues were the result of Respondent’s committing intentional acts to falsify the ESE records and/or to misrepresent the facts relative to the ESE students. Finally, there is no evidence that the errors, mistakes, and omissions attributed to Respondent resulted from her intentionally or deliberately neglecting her duties and/or refusing to adhere to the directives of supervisors and/or applicable laws, regulations, and School Board policies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order: Finding Respondent, Annette D. Dozier, not guilty of the charges alleged in the Amended Administrative Complaint; and Reinstating Respondent with back pay and benefits. DONE AND ENTERED this 23rd day of December, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2009.
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
