The Issue The issue is whether, as of June 30, 2013, Petitioner may nonrenew Respondent's charter agreement (Charter) to operate a charter school, pursuant to section 1002.33(8)(a)2. and 4., Florida Statutes.
Findings Of Fact Respondent operates a charter school pursuant to the Charter, which was entered into in December 2008 by Petitioner, as sponsor, and Life Skills Center Palm Beach County, Inc. Effective June 30, 2012, Life Skills Center Palm Beach County, Inc., changed its name to Excel Leadership Academy, Inc. At all times, the corporation chartered to operate the school was a Florida not-for-profit corporation, and Respondent has been a nongraded charter school with low-performing students. The Charter expires June 30, 2013. Charter General Provision G states that Petitioner may nonrenew the Charter "for good cause." On November 1, 2012, Petitioner's Charter School Department met with representatives of Respondent to discuss an upcoming renewal program review that Petitioner would undertake in order to determine whether it should renew the Charter. During the meeting, Petitioner's representatives went over the review instrument that would be used in conducting the renewal program review. In January 2013, an employee of Petitioner with financial expertise visited Respondent's school, examined Respondent's financial records, and spoke with Respondent's relevant representatives. In the same month, an employee of Petitioner with English-language-learner(ELL) expertise visited Respondent's school, examined Respondent's ELL records, and spoke with Respondent's relevant representatives. In February 2013, employees of Petitioner with academic expertise visited Respondent's school, examined Respondent's academic records,, and spoke with Respondent's relevant employees. As a result of these examinations conducted as part of the renewal program review, Petitioner found deficiencies and decided not to renew the Charter. By letter dated February 27, 2013, Petitioner's Superintendent informed Respondent of his intent to recommend to the School Board, at its meeting on March 6, 2013, that it vote to nonrenew the Charter. On March 6, the School Board met and voted to approve the Superintendent's recommendation. By Written Notice of Non-Renewal of Charter Contract dated March 14, the School Board formally notified Respondent of the nonrenewal of the Charter and itemized the grounds for this action. This March 14 notification is the source of the allegations contained in the Preliminary Statement, above. Charter Section 1.0.C identifies the target group of students to be served by Respondent as at-risk students, aged 16-21 years--including ESE students, disabled students, ELL students--whose needs may be better served by a nontraditional school given that the students may be unable to attend school during a normal school day due to work requirements to support a family, pregnancy, truancy, academic deficits, disruptive behavior, or limited proficiency in English. Charter Section 1.0.D recognizes that at-risk students have different needs. Section 1.0.D states that Respondent will employ an Employability Specialist to prepare the students for employment. Section 1.0.D also states that Respondent will emphasize one-on-one instructional systems, and the curricula will cover the "core academic subjects" of reading, language arts, mathematics, social studies, and science, as well as vocational and social skills. Charter Section 1.0.E identifies the mission of the school as serving at-risk students by giving them a second chance to obtain a quality education and employability training and placement. Charter Section 2.0.A projects total enrollment for each of the five school years from 2008-09 through 2012-13 at 400 students in the ninth through twelfth grades to be included in the school. Addressing curriculum, Charter Section 3.0.A states: [Respondent] agrees to ensure that reading is a primary focus of the curriculum and that resources are provided to identify and provide specialized instruction for students who are reading below grade level. The curriculum and instructional strategies for reading must be consistent with the Sunshine State Standards and grounded in scientifically based reading research. Charter Section 3.0.D provides that Respondent "agrees to implement an instructional program consistent with the program as specified in the Student Progression Plan of [Petitioner] " Charter Section 4.0.A states that Respondent is a drop-out prevention and academic-intervention program. Section 4.0.B states: "[Respondent] will establish a systematic method for assessing student progress using the District's Pupil Progression Plan and performance at each grade using valid and reliable procedures and following the requirements of the law pursuant to Sections 1000.03 and 1008.431, F.S." Section 4.0.B describes baseline and improvement assessment as follows: A baseline for student academic achievement will be established upon enrollment in the educational program. This baseline will be established by analysis of results from the standard assessment administered at the school, previous FCAT scores, and an electronic assessment tool that measures mastery of Sunshine State Standards in language arts, reading, and math. . . . Student improvement will be measured by post-testing with the standard assessment utilized at the [school] and FCAT scores. In addition, students will be assessed by nationally normed assessments (administered twice each school year) that provide information about student achievement. Student improvement will also be measured on a "value added" basis taking into account the student's beginning achievement level (baseline) and progress made through the instructional year. Student progress will be measured and monitored to ensure growth occurs annually. Nationally, norm-referenced tests will also be particularly valuable to measure growth of students who have previously passed the criterion-referenced FCAT in tenth grade. [Respondent] will continue to measure academic growth for this population with norm-referenced tests. Standards based assessments as prescribed by the state governing authority will be administered in accordance with established state law. Charter Section 4.0.F(5) provides that all graduates will have completed at least 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Charter Section 4.0.F(8) states that, each year, Respondent shall increase its enrollment by the lesser of 20% or 100 students until it reaches facility capacity. Attainment of "[t]his goal indicates that the program is working and building a reputation within the community for success." Charter Section 5.0.B states that Respondent will offer an individualized program for each student to progress at his own pace using one-on-one instructional systems. Each student will attend one school session, which consists of four hours of academic learning and one hour of vocational or job readiness training. "Educational curriculum, resources, and lessons can be delivered by teachers through a number of teaching methodologies, utilizing those that best meet the specific needs of the student." Charter Section 5.0.C states: "Students will be supervised by a Florida certified teacher or skilled instructional personnel at all times from arrival at Charter School to departure." Charter Section 8.0.A. provides that the students will take "all applicable State Standardized tests consistent with the sponsor's Student Progression Plan." Respondent is responsible for administering the tests. Charter Section 13.0.J states that Respondent will provide ESE services as provided by each student's IEP. If a parent chooses Respondent's school and it cannot implement the student's IEP, prior to enrollment, the IEP team must meet, revise the IEP, and determine how the IEP will be implemented at Respondent's school; in the alternative, the IEP team may determine another appropriate setting for the implementation of the student's IEP. Section 13.0.J.4 provides that Respondent must "hire an appropriate number of ESE certified teachers to provide ESE services." Further, Respondent must notify Petitioner "immediately" if "the certified ESE teacher is no longer employed or providing services to ESE students as required in their IEPs." Section 13.0.J.5 states: "A certified ESE teacher must maintain written documentation of consultative services for any student whose IEP indicates consultative services." Charter Section 13.0.O provides that students with limited proficiency in English "will be served by ESOL-endorsed personnel." Charter Section 20.0.C provides that teachers shall be Florida-certified as teachers, as required by chapter 1012, Florida Statutes, and the No Child Left Behind Act of 2001. However, Section 20.0.C allows Respondent to contract with "skilled selected non-certificated" personnel "to provide instructional services in the individual's field of specialty or to assist instructional members as paraprofessionals in the same manner as defined by Chapter 1012, F.S., and as provided by the State Board of Education Rule for Charter School Governing Boards." The two most prominent deficiencies are facts to which Respondent stipulated. Its enrollment is declining, and its financial condition is deteriorating due to a general fund deficit. These facts are linked. Respondent attributes its enrollment declines to the opening of another charter school, called Mavericks, near the original location of Respondent's school. At its peak, Respondent enrolled 378.5 students during the 2010-11 school year. For the 2011-12 school year, Respondent's enrollment declined by 206.5 students to 172 students. For the 2012-13 school year, Respondent's enrollment declined by another 93 students to only 79 students. Not surprisingly, given the extent to which enrollments drive revenues at schools, Respondent's financial condition is, at best, grave and, at worse, moribund. For fiscal year ending June 30, 2012, Respondent's auditor determined that Respondent maintained a general fund deficit of $38,057. It is clear from more detailed information in the financial report that the auditor overstated the deficit, which was actually $25,027, but this, too, is a material deficit. The materiality of the deficit, as well as the rapid rate of Respondent's financial deterioration, is revealed by the facts that, for fiscal year ending 2012, Respondent's expenses exceeded its revenues by $162,039--roughly, an order of magnitude greater than the excess of expenses over revenues by $17,771 for fiscal year ending 2011. Respondent's liabilities of $155,008 exceed its assets of $146,129 by $8879, as of June 30, 2012. The link between declining enrollment and financial deterioration is confirmed by the auditor's finding that Respondent's enrollment shortfall, as compared to its projections, resulted in the failure to earn $1.4 million in revenues. During the 2012-13 school year, Respondent has implemented drastic measures to try to control expenses. During this school year, Respondent terminated its management contract, moved the school to a smaller facility with lower occupancy costs, and, as noted below, cut labor expenses by not replacing instructional employees. In themselves, cost-cutting measures would seem to slow the rate of financial deterioration, although the reduction in capital and operational expenses may as likely be met by an equal or greater reduction in revenues, as market forces drive potential students to more successful charter schools. On this record, Respondent's revenues and expenditures appear to be declining in tandem, as Respondent's operations wind down and Respondent approaches financial collapse. Petitioner has thus proved Charges 2.b and 8. Greatly exacerbating the situation, Respondent's serious operational deficiencies, which violate material provisions of the Charter, could only be eliminated by significant increases in expenditures. For example, since sometime in November 2012, Respondent operated with only two instructional employees: a teacher certified in social science and a teacher certified in ESE, Ms. Kangal. During this period of time, each teacher was required to perform the lead-teaching duties in the classes that Respondent was still able to offer. However, during this period of time, numerous students attending the school had IEPs whose implementation required ESE consultative services in the form of support facilitation. For these students, a lead teacher must provide regular instruction to the class, and the ESE teacher must simultaneously provide specialized instruction to the ESE students whose IEP called for consultative services in the form of support facilitation. This exposure to regular instruction with supplemental specialized instruction is critically important to these ESE students; yet, for several months, Respondent was unable to implement this provision of these IEPs, nor any other IEPs that called for direct specialized instruction. Failing to discharge its obligations with respect to ESE instruction, Respondent also failed to discharge its Charter obligation notify Petitioner of the cessation of these ESE services. Petitioner thus proved Charges 11 and 12. At no time during the 2012-13 school year did Respondent employ an ESOL-endorsed teacher. Although this deficiency pales in comparison to the cessation of ESE services for several months, the failure to address the needs of ESOL students is another serious deficiency. Petitioner thus proved Charge 13. The critical subject of reading is the focus of multiple deficiencies. Respondent maintained no lesson plans in reading. The person whom Respondent identified as the reading teacher, Ms. Kangal, is reading-endorsed, but is also the sole ESE-certified teacher at the school. Ms. Kangal conceded to Petitioner's representatives that she did not teach reading. In response to questions as to how reading was taught, Respondent's principal, Ms. Kemp, replied that it was taught across the curriculum and infused in all classes. But evidence at the school did not support these ambitious claims. The classrooms are bereft of such devices as word walls, curriculum- based posters, books, study guides, or even textbooks. Respondent's students included approximately 69 Level 1 and Level 2 readers, whose reading skills require intensive remediation efforts, including enrollment in an intensive reading class. Only three of these students three enrolled in such a class. Respondent's assessment of reading was deficient. Respondent never obtained benchmark data from available standardized tests at the start of the 2012-13 school year, so that it could later measure growth in reading achievement by the end of the school year. At no time did Respondent assess the reading fluency of any of its students. The record is not entirely clear as to whether Respondent has adopted Petitioner's reading plan. District data reveals no such election, but Florida Department of Education data reveals that Respondent has elected to implement Petitioner's reading plan. If Respondent did not adopt Petitioner's reading plan, there is no evidence that Respondent had adopted any other reading plan, so the absence of a reading plan would be a serious deficiency. Respondent claims that it adopted Petitioner's reading plan for the 2012-13 school year, as it had for the preceding school year. Given the greater weight ordinarily attaching to an affirmative indication as opposed to the absence of an affirmative indication, it is more likely than not that Respondent adopted Petitioner's reading plan for the 2012-13 school year. However, this reading plan requires FAIR and SRI assessments throughout the school year, and Respondent did not administer these tests, nor has it adopted alternative means of obtaining the same data, which is necessary for any meaningful implementation of Petitioner's reading plan. Additionally, there is no evidence that Respondent was implementing any reading program whatsoever, even if it had adopted Respondent's reading plan. Petitioner thus proved Charges 1, 3.a, 3.b, 4, 6.b, 6.c, and 6.f. At the start of the 2012-13 school year, Respondent employed four teachers: Ms. Shaheed, who is certified in language arts and endorsed in reading; Mr. Innocent, who is certified in math; Mr. Kyryliw, who is certified in social science; and Ms. Kangal, who is described above. (A fifth teacher, Mr. Ramos, had been hired to teach biology, but he quit prior to the first day of school.) In November 2012, Ms. Shaheed and Mr. Innocent quit and were not replaced, necessitating the removal of Ms. Kangal from her direct and supportive ESE instructional duties and her reassignment to nearly all of the lead-teaching duties formerly handled by both of the teachers who had just quit. This reduction in instructional personnel by half prior to the end of the first semester of the 2012-13 school year prevented Respondent from providing instruction in all of the core academic subjects. Clearly, biology, a required course for graduation, was neglected. Belated attempts to enroll Respondent's students in an online biology course, without any live instructional support, were inadequate to address this required subject because the online course is a demanding course that is taught on grade level. Math was also neglected. During the renewal program review, one of Petitioner's representatives with expertise in math visited a computer lab where students were apparently working in Algebra I, Algebra II, and geometry. When the representative engaged with one of the students, the student asked if she could answer a question. She did so, and the student excitedly told one of his peers that this teacher knew math and could help them. Suggesting that the math lab may have been staged or, if managed at all, managed incompetently, Petitioner's representative noticed that, when Ms. Kangal returned to the room after leaving the students to work on their own on the computers, she handed out Algebra I workbooks to all the students, even to those who, online, had been working on Algebra II and geometry. If Ms. Kangal had even passing familiarity with the workbooks, she would have noticed that they were to prepare the students for the end-of-course Algebra I exam--a total waste of time for those students purportedly working on Algebra II and geometry a few minutes earlier. Petitioner thus proved Charges 5, 6.d, and 9. With even less cause, in terms of cost savings, Respondent has abandoned its undertaking in the Charter to ensure that all of its students perform 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Respondent kept no log of any time spent on these important vocational-preparation activities, nor did Respondent have any agreements with employers to help its students meet this requirement. Petitioner thus proved Charge 7. The above-detailed deficiencies involving declining student enrollment, deteriorating finances, failing to implement ESE students' IEPs, failing to provide an ESOL-endorsed teacher, multiple failings in providing reading instruction, and failing to provide biology and math instruction provide ample good cause for the nonrenewal of the Charter; it is unnecessary to consider the remaining charges. As noted above, Respondent's enrollment has plunged 75% in two school years, and its enrollment-driven revenues are likewise in steep decline. These facts, alone, are good cause for nonrenewal. Worse, Respondent is failing even to address the most basic needs of its ESE students for specialized instruction, nearly all of its dwindling student population for intensive reading instruction, its ESOL students for language issues, its many students seeking to recover the credits necessary for graduation in terms of basic math and biology courses. In the face of these factors driving it to nonoperational status, Respondent has offered no semblance of an educational/financial/marketing plan. Instead, Respondent feebly has tried to transfer the blame for its current situation from itself, where it belongs, to Petitioner. But Respondent's affirmative defense of inadequate assistance from Petitioner fails on two grounds. First, the evidence does not support this claim. Petitioner made available to Respondent the same training and technical assistance that it made available to other schools--charter and noncharter. Second, as to the above- detailed deficiencies, Respondent's failures do not appear to have been of a type that additional technical assistance would have helped. Respondent failed in its most basic duties to educate its students. Failing even to discharge its duty to notify Petitioner of critical changes, such as the cessation of ESE services and loss of teachers, Respondent's complaints that Petitioner failed to help are disingenuous.
Recommendation It is RECOMMENDED that the Palm Beach County School Board enter a final order declining to renew the Charter. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013. COPIES FURNISHED: Christopher Norwood, Qualified Representative Governance Institute for School Accountability 14844 Breckness Place, Suite 100 Miami Lakes, Florida 33016 Bruce A. Harris, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 E. Wayne Gent, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 Dr. Tony Bennett, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent holds Florida Educator's Certificate 776701, covering the areas of Elementary Education and English for Speakers of Other Languages, which is valid through June 30, 2010.3 At all times pertinent hereto, Respondent was employed as a fifth grade teacher at Fairlawn Elementary School (Fairlawn Elementary) in the Dade County School District. On or about October 27, 2006, Respondent submitted an application for national certification through the NBPTS. Respondent's application fee to the NBPTS was subsidized by state funds designated for that purpose. If Respondent had received national certification, she would be eligible for annual salary bonuses. During 2006/2007, Respondent, in an attempt to qualify for national certification, submitted two portfolio entries, titled Entry 2 and Entry 3, to NBPTS that were not entirely her own work. On or about July 8, 2008, NBPTS disqualified Respondent's Entry 2 and Entry 3 because the two portfolio entries had an unacceptable high degree of overlap to two portfolio entries submitted by a previous national board certification candidate. NBPTS is a nationwide, advanced teaching credential that complements, but does not replace, a teaching certificate issued by a state, in this case, the State of Florida. The rigorous evaluation process includes the submission of four portfolio entries. The issues in this case pertain to Ms. Malvar's portfolio Entry 2 and her portfolio Entry 3. Both portfolio entries were submitted to NBPTS by Ms. Malvar in March 2007. Materials provided to candidates for certification by NBPTS include specific instructions for Entry 2 and Entry 3. Both portfolio entries required detailed written comments from the candidate as to his or her teaching methodologies and strategies. The following is found in Part 1 of the General Portfolio Instructions under the heading of "Ethics and Collaboration": Collaboration with colleagues is a valued part of the process: engage them in professional discussions about the NBPTS Standards; have them help you video record, watch, and analyze the video recordings; and have them read and comment on your analyses and on the student work you have chosen.. However, the work you submit as part of your response to each portfolio entry must be yours and yours alone. Your written commentaries, the student work you submit, and your video recordings must all feature teaching that you did and work that you supervised. (Emphasis is in the original.) Ms. Malvar knew that the work a candidate submits as part of the candidate's response to each portfolio entry, including the written comments, must be the candidate's work and only the candidate's work. Ms. Ileana Saenz is a classroom teacher at Fairlawn Elementary. Ms. Saenz has been a teacher for 20.5 years. Ms. Saenz has been a NBPTS certified teacher in reading literacy since December of 2006. Ms. Malvar has been a teacher for 11 years. Ms. Malvar taught at Fairlawn Elementary until October 2009, when she was appointed to supervise the School District's Bilingual Parent Outreach Program, which was the position she held as of the date of the formal hearing. Ms. Saenz and Ms. Malvar have known each other for 15 years. Ms. Elizabeth Gonzalez is also a classroom teacher at Fairlawn Elementary. Ms. Malvar, Ms. Saenz, and Ms. Gonzalez were candidates for NBPTS certification in the 2005-2006 school year. In March 2006, Ms. Saenz and Ms. Gonzalez submitted their entries to NBPTS. Ms. Malvar did not complete her portfolio entries and dropped out of the application process. In December 2006, NBPTS notified Ms. Saenz that she had attained certification. While the three teachers were in the application process, Ms. Saenz gave to Ms. Malvar her four portfolio entries to proofread and to provide feedback. In the fall of 2006, Ms. Malvar reapplied for NBPTS certification. Ms. Malvar submitted her four portfolio entries, including Entry 2 and Entry 3, to NBPTS in March 2007. While packing her portfolio entries for submission to NBPTS, Ms. Malvar inadvertently gave Ms. Saenz a copy of each of her four portfolio entries. As will be discussed below, Ms. Saenz did not realize that she had a copy of these portfolio entries until February 2008. In November 2007, Ms. Malvar received her score report from NBPTS. Ms. Malvar received a passing score on her Entry 3, but she did not receive a passing score for her other three portfolio entries, including Entry 2. The score Ms. Malvar received for her Entry 3 was identical to the score Ms. Saenz had received for her Entry 3 the year before. Ms. Saenz and Ms. Gonzalez encouraged Ms. Malvar to redo and submit the portfolio entries for which she had not received a passing grade. They offered to act as mentors. In January 2008, Ms. Saenz asked Ms. Malvar to give her Ms. Malvar's Entry 1 and Entry 2 that had been submitted to NBPTS in March 2007, so that Ms. Saenz could review them and provide feedback to Ms. Malvar. Ms. Malvar complied with that request, but, as will be discussed below, Ms. Saenz did not have time to read the portfolio entries until the following month. In February 2008, Ms. Saenz read a few pages of the draft of Ms. Malvar's new Entry 2 and noticed that the portfolio entry was very similar to the Entry 2 Ms. Saenz had submitted in March 2006. The strategies were the same and the wording was similar. Shortly thereafter, Ms. Saenz retrieved the copy of the Entry 2 that Ms. Malvar had submitted to NBPTS in March 2007. (This was one of the two portfolio entries that Ms. Malvar had given Ms. Saenz in January 2008 to review and provide feedback.) There was a great deal of overlap between the Entry 2 Ms. Saenz submitted in March 2006 and the Entry 2 Ms. Malvar submitted in March 2007. Ms. Saenz highlighted the overlap with a marker. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 2. Ms. Saenz confronted Ms. Malvar and asked to see Ms. Malvar's other portfolio entries. Ms. Malvar told Ms. Saenz that she would provide her with a copy of the other portfolio entries. The next morning, Ms. Saenz wanted more assurances from Ms. Malvar that her work would no longer be used. Shortly thereafter, Ms. Malvar informed Ms. Saenz that she had decided to drop out of the certification process. That afternoon, Ms. Malvar filled out the form to drop out of the certification process, faxed it in to NBPTS, and gave a copy to Ms. Saenz. Later Ms. Saenz discovered the copy of Ms. Malvar's Entry 3 that had been submitted to NBPTS by Ms. Malvar in March 2007. This is the copy that Ms. Malvar had inadvertently given Ms. Saenz when Ms. Malvar and Ms. Gonzalez were packing Ms. Malvar's submissions to NBPTS in March 2007. There was a great deal of overlap between the Entry 3 Ms. Saenz submitted in March 2006 and the Entry 3 Ms. Malvar submitted in March 2007. Ms. Saenz highlighted the overlap with a marker. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 3. After learning that Entry 2 and Entry 3 had been plagiarized, Ms. Saenz was justifiably upset that Ms. Malvar had used her work. Ms. Saenz had received additional compensation as a result of her certification from NBPTS certification. Ms. Malvar's use of Ms. Saenz's work could have cost Ms. Saenz her certification from NBPTS and the loss of her additional compensation. After consulting her assistant principal and her direct supervisor, Ms. Saenz held a conference call with the person who is head of the national boards for the Miami-Dade County School District. Following that conference call, Ms. Saenz reported to NBPTS her observations as to the similarities between her own Entry 2 and Entry 3 submitted in March 2006, and the Entry 2 and Entry 3 that Ms. Malvar submitted in March 2007. On April 28, 2008, a representative of the NBPTS advised Ms. Malvar that NBPTS had identified "a high degree of overlap" between her portfolio entries and those of "another current or former candidate." The letter invited Ms. Malvar to explain no later than May 12, 2008, how the overlap could have occurred. Because Ms. Malvar did not timely respond to the April 28, 2008, letter, a second letter was sent to her by the same representative of NBPTS extending the response time to May 19, 2008. By letter dated May 19, 2008, Ms. Malvar responded to NBPTS with the following after she had referenced the two letters she had received: In response to the aforementioned letters, I would like to state that all the implemented lessons were my original ideas, I did all the research as well as planning that it took to create them and I was the only person involved in their implementation. At the same time, I do acknowledge that the way some of the lessons were expressed on paper were not my original words. This was done without malice and without the consent of the other person. I do regret this unfortunate incident since I did put many hours of hard work in the creation of the lessons. By letter dated July 8, 2008, the president of NBPTS notified Ms. Molvar of his decision. The letter provided, in part, as follows: Before making my decision I closely reviewed the various materials regarding this case, while taking into consideration the obligation that NBPTS has to maintain an assessment that is fair to all teachers seeking certification. This is a serious issue, and I did not make my decision lightly. After reviewing all of the documentation regarding this situation, I find unacceptable the high degree of overlap between [Ms. Sanez's 2006 entries and Ms. Malvar's 2007 entries]. While collegial teamwork is valued by the National Board, the guidelines set forth in the portfolio directions are in place to ensure all candidates seeking certification submit original work and analyses that are a result of personal reflection on their individual teaching practices. In your situation, I find that the overlap is significant enough to cause concern. Therefore, it is my decision to disqualify your current scores for the above-mentioned portfolio entries and to remove the scores from your score report. It is also my decision to grant you the opportunity to retake these portfolio entries and any other entries/exercises you choose to retake. Ms. Malvar had not reapplied for certification as of the date of the formal hearing. Ms. Malvar has never received any letters of reprimand, letters of direction, or verbal warnings at any time during her professional career as an educator. Ms. Malvar has received numerous certificates of achievement. Ms. Malvar has always received high marks on her evaluations as an educator and has never received an unsatisfactory evaluation. Ms. Malvar presented the testimony of three current or former educators as character witnesses. These character witnesses testified, credibly, that Ms. Malvar enjoys a good reputation in the teaching community. Ms. Malvar knew, or should have known, that her use of Ms. Sanez's work constituted cheating. Ms. Malvar testified, credibly, that she was ashamed of what she had done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of Counts I, II, III, and IV of the Administrative Complaint. It is further recommended that the final order suspend Respondent's educator's certificate for a period of one year. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2010.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the alleged performance deficiencies.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times material hereto, Petitioner employed Respondent as a classroom teacher pursuant to a professional service contract. During the 2007-08 school year, Respondent taught a first grade class at Caribbean Elementary School. Teachers employed by Petitioner are evaluated pursuant to an evaluation system named Professional Assessment and Comprehensive Evaluation Systems (PACES), which was adopted through the collective bargaining process. PACES has been approved by the Florida Department of Education and complies with the requirements set forth in Section 1012.34, Florida Statutes (2008). PACES contains the following seven DOMAINS:1 Planning for Teaching and Learning. Managing the Learning Environment. Teacher/Learner Relationships. Enhancing and Enabling Learning. Enabling Thinking. Classroom-Based Assessment of Learning. Professional Responsibilities. Each Domain contains Indicators and Components, which are standards which the evaluator must utilize in completing the evaluation of a teacher. PACES observers must be school administrators who have been trained to conduct PACES observations. Monica Maza and Christina Guerra were the PACES observers in this case. These observers have had extensive training in the standards to be observed and evaluated in teacher performance and student learning. Ms. Maza and Ms. Guerra are authorized and well- qualified to perform PACES observations. If, during an observation, an administrator finds that a teacher (the teacher) is performing below standards, that initial observation is deemed to be not of record (initial observation). The administrator promptly meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be formally observed within one month. The administrator offers a Professional Growth Team (PGT) to assist the teacher achieve the desired performance improvement. Members of the PGT are individuals (usually fellow teachers) who have been trained in PACES and are authorized to give support and assistance to the teacher. The same administrator who conducted the initial observation must conduct the next observation, which is referred to as the “kickoff observation.” The kickoff observation is of record. If this observation is below performance standards, a Conference for the Record (CFR) is held with the teacher and the teacher is put on a Professional Improvement Plan (PIP). The performance probation period of 90 calendar days (Performance Probation Period) begins the day after the PIP is given to the teacher. There can be as many as four official observations of the teacher during the Performance Probation Period. A final observation is conducted after the conclusion of the 90-day Performance Probation Period (the Confirmatory Observation) to determine whether the teacher has corrected the deficiencies that had been identified by the prior official observations. Typically, if the administrator conducting the Confirmatory Observation determines, by utilizing the PACES evaluation criteria, that the teacher has not met standards, the school administrators recommend to the Superintendent of Schools that the teacher’s employment contract be terminated. Monica Maza, an assistant principal at Caribbean, conducted the initial observation (the observation that is not of record) on September 7, 2007. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 3), which found Respondent to be below standards in the following Domains: II, IV, V, and VI. Ms. Maza’s observation of Respondent on September 7, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 3 accurately reflects Ms. Maza’s observations on September 7, 2007. Ms. Maza met with Respondent on September 12, 2007. During that meeting, Ms. Maza reviewed the observation with Respondent and explained the reasons for the deficiencies she noted. Ms. Maza advised that she would return to do a follow-up observation. At the meeting of September 12, 2007, Ms. Maza explained to Respondent the purpose of a PGT and offered Respondent the services of a PGT, which he accepted. On September 13, 2007, Ms. Maza identified the members of the PGT. Between September 13 and October 17, 2007, the PGT provided appropriate assistance to Respondent. Ms. Maza conducted the kickoff observation on October 17, 2007. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 8), which found Respondent to be below standards in the following Domains: II, III, IV, V, and VI. Ms. Maza’s observation of Respondent on October 17, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 8 accurately reflects Ms. Maza’s observations on October 17, 2007. On October 24, 2007, Ms. Guerra and Ms. Maza held a CFR with Respondent to address the areas of performance observed to be unsatisfactory by Ms. Maza on October 17, advised that he was being placed on a 90-day Performance Probation Period, explained to him that he would have to correct his deficiencies prior to the conclusion of the Performance Probation Period, and provided him with a PIP (Petitioner’s Exhibit 10). The PIP provided Respondent with specific information as to his observed deficiencies and cited reference material to assist him in correcting his deficiencies. The PIP provided Respondent on October 24, 2007, was appropriately drafted and complied with the requirements of PACES. Respondent’s 90-day Performance Probation Period began October 25, 2007, the day after he received the PIP. Respondent was provided additional assistance through his PGT to assist him to correct the noted deficiencies. The provision of that assistance complied with the requirements of PACES. On November 19, 2007, Ms. Guerra formally observed Respondent in his classroom over a period of two hours. Ms. Guerra completed a PACES Observation Form (Petitioner’s Exhibit 20), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Guerra’s observation of Respondent on November 19, 2007, was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 20 accurately reflects Ms. Guerra’s observations on November 19, 2007. Ms. Guerra met with Respondent on November 30, 2007, to go over her observation of November 19 and to issue another PIP (Petitioner’s Exhibit 22). The PIP of November 30 was consistent with the requirements of PACES and was designed to assist Respondent correct the observed deficiencies. On January 8, 2008, Ms. Maza formally observed Respondent in his classroom over a period of 121 minutes. Ms. Maza completed a PACES Observation Form (Petitioner’s Exhibit 24), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Maza’s observation of Respondent on January 8, 2008, was appropriate and fairly assessed Respondent’s performance. As with prior observations, Respondent was not in control of his classroom. Respondent failed to re-direct inappropriately off-task students who were not engaged in learning. Petitioner’s Exhibit 24 accurately reflects Ms. Maza’s observations on January 8, 2008. On January 14, 2008, Ms. Maza met with Respondent to go over her observation of January 8, 2008, and to issue another PIP (Petitioner’s Exhibit 26). The PIP of January 14 was consistent with the requirements of PACES and was designed to assist Respondent correct the observed deficiencies. Because the observation on January 8, 2008, reflected that Respondent’s performance continued to be unsatisfactory, a final observation was conducted after the expiration of his 90- day Performance Probation Period. Ms Guerra conducted that observation (the confirmatory observation) on February 15, 2008. Ms. Guerra completed a PACES Observation Form (Petitioner’s Exhibit 29), which found Respondent to be below standards in the following Domains: II, V, and VI. Ms. Guerra’s observation of Respondent on February 15 was appropriate and fairly assessed Respondent’s performance. Petitioner’s Exhibit 29 accurately reflects Ms. Guerra’s observations on February 15, 2008. Ms Guerra notified Respondent on February 15, 2008, that he had not satisfactorily corrected his noted deficiencies during his 90-day Performance Probation Period and that she was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. Ms. Guerra forwarded her recommendation to the Regional Superintendent on February 15, 2008, by a memorandum (Petitioner’s exhibit 48) which provided, in relevant part, as follows:. Pursuant to Section 1012.34, Florida Statutes, the above-named employee was placed on a 90-Calendar Day Performance Probation commencing October 25, 2007. During the probationary period, the employee was provided assistance. The employee has not satisfactorily corrected the noted performance deficiencies within the provided timeframe. Therefore, I am recommending that the employee’s contract be terminated. Ms. Guerra’s recommendation was also forwarded to the Office of Professional Standards (OPS), which approved the recommendation. On February 26, 2008, a meeting was held in the Office of Professional Standards which included appropriate representatives of the School District, Respondent, and Respondent’s representative from the United Teachers of Dade. A memorandum generated as a consequence of the meeting (Petitioner’s Exhibit 34) reflected that Respondent was advised he would be “. . . recommended for dismissal on the following charges: failure to correct noted performance deficiencies.” On February 27, 2008, Maria Teresa Rojas, the Assistant Superintendent of Schools, notified Respondent by letter (Petitioner’s Exhibit 35) of the following recommendation by the Superintendent of Schools: This is to notify you that the Superintendent of Schools will be recommending to the School Board of Miami- Dade County, Florida, at its scheduled meeting of March 12, 2008, that the School Board suspend and initiate dismissal proceedings against you from your current position as Teacher at Caribbean Elementary School, effective at the close of the workday, March 12, 2008, for just cause, including, but not limited to: failure to correct noted performance deficiencies within the 90 calendar day performance probation. This action is taken in accordance with Section 1001.32(2), 1012.22(1)(f), 1012.33, 1012.34 and 447.209, Florida Statutes. If you wish to contest your suspension and dismissal, you must request in writing within 15 calendar days of the receipt of the notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. If the School Board accepts (or approves) the Superintendent’s recommendation, you will be notified of the School Board’s action. The School Board approved the Superintendent’s recommendation at its meeting of March 12, 2008. Respondent timely requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed. On April 23, 2008, Petitioner filed its Notice of Specific Charges which contained one count based on Respondent’s alleged failure to correct noted deficiencies during his Probation Period. On May 28, 2008, Petitioner filed its Amended Notice of Specific Charges, which added the following factual allegations in paragraphs 13 and 14: The students assigned to Respondent’s classroom were individually tested on their early literacy development. The Dynamic Indicators of Basic Literacy Skills (DIBELS) are administered to Florida students in kindergarten through third grade in Reading First schools to determine risk levels for later difficulties in reading. Caribbean Elementary is a Reading First School. Early in the 2007-2008 school year, approximately fifty-three percent (53%) of Respondent’s first grade students were classified as low-risk. Respondent’s students were tested a second time on or about January 24, 2008. The number of low- risk students decreased to 22%, a decline of thirty-one (31) percentage points. At the same time, the number of high-risk students increased from 24% to 33%. The Amended Notice of Specific Charges filed May 28, 2008, added the following as grounds for the termination of Respondent’s employment in paragraph 22: 22. The students assigned to Respondent’s classroom performed poorly when administered the DIBELS test. Petitioner proved the factual allegations set forth in paragraph 13 of the Amended Notice of Specific Charges. The allegations contained in paragraph 14 of the Amended Notice of Specific Charges will be discussed below. DIBELS has been approved by the Department of Education2 and is used throughout the country. The administration of DIBELS is required by the Florida Department of Education in Reading First schools. DIBELS is administered one on one to each student by members of what was referred to as a SWAT team who are not the student’s regular teacher. DIBELS consists of subtests, which are a minute to three minutes in length. Two assessments of DIBELS are at issue in this proceeding. The first, conducted in September 2007, consisted of four subtests referred to, respectively, as “Letter Naming Fluency”, “Phoneme Segmentation Fluency,” “Nonsense Word Fluency”, and “DIBELS Oral Reading Fluency”. Pauline Wood, Petitioner’s Executive Director of Reading First, in reference to Petitioner’s Exhibit 38, described the four subtests in response to questions from Petitioner’s counsel (beginning on page 99 of the Transcript): Now, I just want to draw your attention to the four categories, and if you can just explain to us what the categories are? Those are on the four subtests that the children were administered for the first assessment. The first one is Letter Naming Fluency. Q. What is that? I’m sorry. A. Children are given a sheet of paper, a probe, that has both upper-case and lower- case letters on it and in one minute’s time, they’re asked to identify orally the letters. Q. The next category? A. The Phoneme Segmentation Fluency. The students are given a word, for example, Sam, and they’re asked to segment each of the phonemes. The Ss-Ah-Mm part, and that’s exactly what we’re expecting children to do at this point. And, again, it’s a one minute probe. Q. And the next category? A. Nonsense Word Fluency is a phonics decoding assessment. It’s a consonant/vowel/consonant word and we’re determining whether students can decode short vowel sounds. There are words like lut, L-U-T, which is a nonsense word, not a real word, and they’re asked to decode it. Q. And the fourth category? A. The DIBELS Oral Reading Fluency is a series of three passages that are written on grade level. The students are asked to read each of the passages one at a time. Each of them is one minute timed probe and the correct words per minute are scored. The second DIBELS test was administered to Respondent’s class in January 2008. Consistent with the testing protocol, the Letter Naming Fluency subtest was not administered. The Phoneme Segmentation Fluency, Nonsense Word Fluency, and the DIBELS Oral Reading Fluency subtests were administered. Ms. Ward made comparisons of the scores of Respondent’s class on the first administration of DIBELS in September and the second administration of DIBELS in January for the subtests of Phoneme Segmentation Fluency, Nonsense Word Fluency, and the DIBELS Oral Reading Fluency. Ms. Ward’s analysis was performed in April or May 2008. Her analysis reflected that, as compared to the two administrations of DIBELS to Respondent’s class, a greater percentage of the class fell into the high risk category and a lower percentage of the class fell into the low risk category. Ms. Ward’s analysis demonstrated that Respondent’s students did not perform as well on the January 2008 administration of DIBELS when compared to the September 2007 administration of DIBELS. Petitioner’s Exhibit 49 is a list of the students assigned to Respondent’s class who took the DIBELS test in September and those who took it in January. An examination of that list reflects that 15 of Respondent’s students took both the first and second DIBELS test. Three of the students who had taken the first test did not take the second test because they had been removed from the class. Four students who had not taken the first test took the second test for the first time. As a consequence, the first test was administered to 17 students and the second test was administered to 18 students. The pie charts prepared by Ms. Ward reflect the overall performance of the 17 students who took the first test as compared to the overall performance of the 18 students who took the second test. Her analysis makes no adjustment for the above-described changes in the constitution of Respondent’s class. While it is clear that there was a decline in performance by Respondent’s class on the second administration of DIBELS, the undersigned declines to adopt the percentages reflected on the pie charts because of the failure to account for the changes in Respondent’s class between the first and second administration of DIBELS. When OPS evaluated the recommendation from Ms. Guerra that Respondent’s employment be terminated, OPS had the results of DIBELS tests administered to Respondent’s class in September 2007 and January 2008. OPS did not have Ms. Ward’s analysis of those scores. Joyce Castro is the District Director of Respondent’s Office of Professional Standards. Ms. Castro’s testimony established that the OPS considered the DIBELS scores discussed above as demonstrating that Respondent’s students were making unsatisfactory progress. The Stanford Achievement Test is a norm-referenced test given in March of each school year to first and second graders in Reading First schools. Norm-referenced scoring compares a student’s score to scores of same grade students nationwide. Like the Florida Comprehensive Achievement Test (FCAT) administered to older students, the Stanford Achievement Test is an end of the year measurement to assess a student’s progress, or lack thereof, during the school year. The FCAT is a criterion referenced test, which has certain benchmarks that students must meet and measures the student’s progress toward meeting those benchmarks. In addition, third, fourth, and fifth grade students also take what was referred to as the Norm Referenced Test. Ms. Ward was the only witness who testified as to the purpose of DIBELS. She described DIBELS as being a tool to help teachers target their instruction. She responded as follows to the following question from Respondent’s attorney at page 116, beginning at line 17 of the transcript: Q. DIBELS is not designed as an assessment tool to determine whether the teacher has succeeded or failed, vis-à-vis the FCAT or any of these other norm- referenced tests, is that correct? A. I don’t think I have the expertise to answer that question, to tell you the truth.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order reinstate Respondent to his position with full back pay and benefits. DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
The Issue The issues are whether Respondent is guilty of incompetence in teaching, in violation of section 1012.795(1)(c), Florida Statutes, or personal conduct that seriously reduces her effectiveness as an employee of the School Board, in violation of section 1012.795(1)(g), and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate number 545766, which is valid through June 30, 2015. She is certified in elementary education and English speakers of other languages (ESOL). After graduating from college, Respondent was hired as a permanent teacher in 1984 by the District. Respondent taught middle school until 2003. From October 2003 through June 2006, Respondent transferred to Silver Shores Elementary School (Silver Shores), where she taught third grade and later reading. For each of the school years from 1997-98 through 2006-07, Respondent earned "satisfactory" annual evaluations, which is the highest available rating. But her performance was not entirely satisfactory during the latter part of this period. By memorandum dated October 3, 2003, the Silver Shores principal documented that Respondent had not taught writing daily as required, had not appeared punctually at all school functions and events, and had not conformed to other school or District policies regarding teaching. By memorandum dated March 7, 2006, the Silver Shores principal warned Respondent about her routine tardiness. Although she was required to work from 7:30 a.m. to 3:00 p.m., Respondent had reported to work from five-to-20 minutes late on 22 days from January 19 through March 7, 2006. Several times, after 7:30 a.m., the principal saw Respondent talking on the cellphone in the parking lot, rather than in her classroom or office. During one discussion about tardiness, Respondent replied to the principal that she was lucky that Respondent was at school at all. Late in the 2005-06 school year, the Silver Shores principal told Respondent that, due to a loss of the reading program, Respondent would be required to teach second grade the following school year. At about the same time, the District informed Respondent's principal that her school was under- enrolled and would have to release a number of teachers in a process known as "surplusing." In this process, if a school finds itself with too many teachers, the principal asks for volunteers to transfer to other schools, and, if an excess remains after these transfers, "surpluses" the excess number of teachers, releasing first the least-senior teachers. When the principal asked if any teachers would accept a transfer, Respondent volunteered. By this means, Respondent found herself teaching at Norcrest at the start of the 2006-07 school year. Respondent's first year at Norcrest was unremarkable. To help Respondent adjust to her new assignment, the Norcrest principal, who evidently was aware of Respondent's problems at Silver Shores, created a class that was unusual in that it did not contain any students with severe behavioral problems, significant reading difficulties, or exceptionally high academic achievement. The principal also assigned to Respondent a reading coach, who helped Respondent set up her classroom, organize her reading groups, and learn how Norcrest teachers were expected to teach reading. The principal assigned another teacher to show Respondent how Norcrest teachers were expected to teach math. Respondent taught at a satisfactory level during the 2006-07 school year. She had some problems with classroom clutter and following the prescribed curriculum, but, at the end of the year, Respondent received a "satisfactory" on her annual evaluation. The period covered by the Administrative Complaint starts with the 2007-08 school year, during which Respondent's performance deteriorated. For this year, the Norcrest principal assigned Respondent the same mix of students that the other second grade teachers received. In late September 2007, the principal complained to Respondent that she was not reading her email twice daily as required, failed to inform the office promptly when two nonrostered students appeared in her classroom on the first day of school, and did not maintain order among her students as they proceeded to their dismissal locations. Respondent countered these relatively minor concerns by asking whether the principal had issued similar directives to other teachers. More serious problems began to emerge the next month. After a walk-through and formal observation on separate days in October, the principal met with Respondent on November 1 and 2, 2007, to discuss numerous issues. As witnessed by the principal, Respondent used a calendar math kit that was incomplete, District narrowcasts of materials that were irrelevant to the curriculum, stale writing center materials, vague speech when talking to the class, procedures that were ineffective at maintaining on-task behavior by the students during instructional time, ineffective techniques to review homework assignments with the class, and obsolete reading data to form tiered reading groups. The principal saw that Respondent had not posted a class schedule, had allowed classroom clutter to impede learning and student access to supportive materials, and was teaching outdated materials instead of District-approved math and reading materials. At this time, the principal learned that Respondent had failed to administer each quarter the required Development Reading Assessment (DRA), failed to maintain effective communications with parents, and reported reading levels with a specificity not supported by available data. Respondent denied many of the principal's findings, but Respondent's denials were implausible. For instance, on October 30, the writing center still featured Christopher Columbus, whose holiday is in early October--even though updated curriculum materials were readily available to Respondent through the lesson plans contained in the Broward Educational Enterprise Portal (BEEP). Claiming that her procedures for reviewing homework were effective, Respondent failed to understand that her general statements--such as "everybody gets that, right?"--may have discouraged students who did not understand the lesson from identifying themselves in front of the entire class. Denying that her class was out of control, Respondent evidently failed to understand that such practices as encouraging unison responses prevented her from identifying which students were not grasping the material and posed risks of off-task behavior. Respondent also complained of inadequate materials or equipment--particularly, that Respondent's computer did not work and her calendar math kit was incomplete. Ungrounded, these complaints also revealed a lack of effort by Respondent. The principal directed the tech specialist to check Respondent's computer, and she found that its energy-saving switch was on, so, when unused for a set period of time, the computer was merely entered a sleep state and required little to restart it. The principal directed another teacher to check Respondent's calendar math kit, and the teacher found that the only component missing was an expendable counting tape that was routinely replaced each year. Even worse, Respondent admitted that she had not administered the DRA in the first quarter of the 2007-08 school year, as required, but instead had reported the DRA scores from the final quarter of the previous year. The current DRA results were required for the organization of reading groups by achievement level. Lacking this data, Respondent admitted that she had organized her reading groups based on the Stanford Achievement Test results from the preceding school year. Persuading no one except perhaps herself, Respondent claimed that obsolete test data supported her current reading groupings, ignoring the fact that very young children often undergo vast changes in reading skills over the summer. Suggestive of another problem with the clutter that Respondent had packed into her classroom, Respondent admitted that, at Halloween, she used seasonally appropriate math materials demonstrating three-digit multiplication problems. The problem was that three-digit multiplication is beyond the grade level that Respondent was teaching, so the students gained no educational value from the materials and were possibly confused by them. Rather than tacitly admit her indolence, when confronted about this incident, Respondent unwisely chose to defend this practice, seemingly unaware of her failure to reinforce the current curriculum by using grade-appropriate materials. By memorandum dated November 5, which documented the discussions between the principal and Respondent arising out of the walk-through and observation, the principal mentioned the assistance that Respondent had received the preceding school year in the form of a reading coach and the help that she had received already in the current school year in the form of a "few weeks" of assistance in "instructional organization, student performance, presentation of subject matter, behavior management, components of the reading block, and physical organization . . . of the learning environment." The November 5 memorandum warns that, if Respondent fails to eliminate these deficiencies, the principal will place her on a PDP. Illustrative of Respondent's lack of response to the November 5 warning is her failure to deal with her cluttered classroom. Photographs of Respondent's classroom on or about November 5 reveal layers of materials, some boxed and some loose, resting upon every horizontal surface formed by carts, bookshelves, filing cabinets and tables. Exacerbating the situation, most of the materials, like the Halloween materials described above, were utterly useless. These materials consisted of folders containing student work back to 1993, books and materials from other schools, middle-school ESOL materials, Spanish materials, materials for kindergarten, newspapers dating back to 1986, and a 1964 book on the use of bulletin boards. The principal ordered Respondent's team leader to help Respondent reorganize her classroom, but Respondent rejected her offers of assistance. After a couple of deadlines for the removal of the clutter had passed, the principal set a final deadline of November 21, after which custodial staff would transfer the materials to Respondent's vehicle for her. On the day that the custodians were to move the materials, Respondent called in sick, so the principal had them move the materials to a storage room. Respondent's team leader witnessed other problems besides a cluttered classroom. Respondent continuously needed help accessing her computer and other everyday teaching aids and did not even keep the classroom calendar on the current month. After observations on November 16 and 20, the principal met with Respondent on November 27 and 29 to discuss a half dozen issues. First and foremost, the principal noted that Respondent had failed to complete a Child Study Team packet, despite several requests to do so by the principal and the guidance counselor. This is a critical requirement that must be completed by the classroom teacher to permit the evaluation of student for exceptional student education (ESE) services to proceed. Displaying the same lack of candor that she had displayed when she reported the previous year's DRA scores in place of the current DRA scores, as discussed above, Respondent claimed that the guidance counselor had never requested the packet. When shown a copy of the request, Respondent quickly changed tactics to say that she had turned it in on time, which is clearly untrue. Notwithstanding the previous directive to use the calendar math kit, Respondent was still failing to use this valuable teaching resource. When confronted with this fact, Respondent again stated that she did not have a complete kit and added that she had seen another teacher's kit, which was neatly organized. The principal went to Respondent's room and examined the kit, parts of which were still wrapped in plastic, meaning that Respondent had not even bothered to open them. The principal explained that the other kit was organized because the teacher had organized it. Displaying a profound lack of teaching competence, Respondent demonstrated confusion between the lesson plans contained in the BEEP and the actual reading curriculum materials, which was the Harcourt Trophies reading series. The principal had to tell Respondent that the Trophies series is the text, and the BEEP lesson plans are the means by which, day to day, Respondent may teach the Trophies series. After this troubling exchange, the principal assigned the reading coach to help Respondent learn how to teach the Trophies series. Although BEEP had been available for elementary school grades for three or four years and Respondent had taught second grade the previous school year, Respondent was unfamiliar with the BEEP lesson plans. The reading coach guided Respondent to the relevant BEEP materials and showed her how to retrieve them from the District online database. Then, for five days, the reading coach taught the Trophies series to Respondent's class to show Respondent the proper way to teach this curriculum using the BEEP lesson plans. After teaching Respondent's class for five days, the reading coach observed Respondent teach the Trophies series for five days. When the reading coach tried to provide Respondent with feedback, Respondent replied that she did not need the reading coach's help. Relations between the two educators became strained, and, when the reading coach tried to help Respondent reorganize her cluttered classroom, Respondent became so loudly oppositional that the principal had to intervene to calm Respondent. Not surprisingly, the reading coach shared the team leader's concerns about Respondent's teaching ability. As the principal had found, the reading coach found Respondent was very difficult to follow during a lesson, and her students often did not understand or were disengaged. Respondent failed to satisfy the needs of second graders for consistency and follow-through. Instead of sticking to a lesson plan, Respondent would futilely try to engage her students with irrelevant stories. When Respondent tried to use BEEP lesson plans, she skipped mandatory elements in the plans, apparently failing to understand herself the relative importance of different parts of the plans. Ultimately, the reading coach justifiably concluded that Respondent's incompetence was depriving her students of an educational environment. By memorandum to Respondent dated December 6, 2007, the principal placed Respondent on a 90-day probationary period. The memorandum advises that, pursuant to section 1012.34, Florida Statutes, the principal will conduct formal performance evaluations during this period on a specified evaluation form and will prepare and administer a PDP, which will list Respondent's specific areas of unsatisfactory performance, a time period for correction, and suggestions for corrective action. The memorandum states that, within 14 days after the end of the 90 days, the principal will determine whether Respondent has corrected the performance deficiencies and forward a recommendation to the Superintendent, who will notify Respondent within 14 days whether she has corrected the performance deficiencies. The memorandum warns that, if the Superintendent determines that Respondent has failed to correct the performance deficiencies, he will recommend to the School Board that it terminate Respondent's contract. In boldface, the memorandum itemizes three performance deficiencies: lesson presentation, classroom management, and student performance. When the principal tried to assign staff to help Respondent, as required by the PDP, Respondent insisted that the principal find educators not working at Norcrest to provide the required assistance. The PDP process was slowed by the amount of time that it took to find such educators and by Respondent's numerous absences on days scheduled for assistance or PDP-related meetings. By memorandum to Respondent dated February 11, 2008, the principal documented the discussion at a meeting on February 6, which largely covered what, if any, progress was being made in finding persons who could provide assistance to Respondent. By now, Respondent had suggested a young teacher, but she was unwilling to become involved in the PDP process. In the interim, though, Respondent's work was still plagued with problems. For instance, despite the clear emphasis on the importance of conducting timely DRA tests, Respondent had failed to conduct the DRAs that were to have been completed by the end of January and had failed to conduct the Stanford Assessment Test, which also had to be administered. As confirmed by the principal, although Respondent was "improving" in classroom management, she remained "unsatisfactory" in lesson presentation and student performance evaluation. As the end of the 90 days approached, Respondent felt growing stress and began to miss school due to what was eventually diagnosed as neurocardiogenic syncope, which is a form of fainting related to stress. Respondent's use of sick leave was pronounced from March 13 through April 9, 2008. On the days that she was at school, Respondent continued to teach, meet with administrators, and generally fail to perform her basic duties. For example, on March 25, 2008, the guidance counselor met with Respondent and tried, literally for the tenth time, to explain her responsibilities in the preparation of the Child Study Team packet. Failing again, the guidance counselor correctly concluded that Respondent would never produce a satisfactory packet. The principal conducted another observation on March 18, which was followed by a meeting between the principal and Respondent on March 28. The principal noted that Respondent was not using a vocabulary-building program called "Word Wall," even though she had been given a packet of these activities previously. Likewise, the writing center showed no signs of recent use. Respondent failed to follow the BEEP lesson plan that she had adopted for the day. Instead of using the Trophies intervention series for students reading substantially below grade level, Respondent used the Trophies grade-level series without informing the guidance counselor or reading coach. When asked about this practice, Respondent claimed that these students could meet the challenge with extra support. The principal directed Respondent to use the Trophies intervention materials until the students' assessments demonstrated that they could handle the Trophies grade-level materials. On April 9, 2008, the principal issued a formal evaluation assessment to Respondent. Respondent received "satisfactories" in instructional planning, lesson management, communication, behavior management, records management, subject matter knowledge, and other professional competencies. She received "unsatisfactories" in lesson presentation, student performance evaluation, and classroom management. Pursuant to the collective bargaining agreement, a single "unsatisfactory," which is the lowest rating, causes the overall evaluation to be "unsatisfactory." On April 9, Respondent appeared at a scheduled meeting with the principal and several other administrators to discuss her situation. However, as soon as she entered the room and saw the seven or eight persons sitting around the table waiting for her, Respondent felt faint and instead walked outside, where she sat for several minutes until she had recovered sufficiently to drive herself home. On that or the following day, Respondent went on medical leave for the rest of the school year. Although Respondent had met some benchmarks among the three deficient areas listed in the PDP, mainly in classroom management, serious deficiencies remained. Lesson presentation and student performance evaluation remained poor. For instance, at the end of the school year, administrators learned that Respondent had failed to ensure that her students use an important reading diagnostic computer, which customized lessons for each student based on his reading weaknesses. Because Respondent had slowed the PDP process, as described above, the Norcrest principal determined that Respondent had not received all of the assistance that she had been promised in the PDP. The principal therefore elected to place Respondent on another PDP, rather than commence the dismissal process. By memorandum to Respondent dated April 9, 2008, the principal placed Respondent on a second PDP. The second PDP was substantially the same as the first PDP, except that it had a new deadline. After missing the remainder of the 2007-08 school year, Respondent reported for duty at the start of the 2008-09 school year. Evidently due to Respondent's extended absence, by memorandum dated September 3, 2008, the Norcrest principal drafted a third PDP. The third PDP was substantially the same as the first and second PDPs, except that it had a new deadline. The principal and Respondent discussed her 2007-08 evaluation and the proposed third PDP at meetings on September 3, 5, and 12. Respondent disagreed with the third PDP and again refused assistance from any personnel at Norcrest. Agreeing with one of Respondent's objections to the draft PDP, the principal agreed to delete the DRA benchmarks from the third PDP because Respondent had eventually met them the previous school year. On September 12, 2008, the principal revised the draft of the third PDP to incorporate some changes from her discussions with Respondent. As finalized, the third IEP notes, for lesson presentation, that Respondent fails to select and use appropriate instructional techniques, pose clear questions that require students to reflect before responding, and give explicit instructions with confirmation of students' understanding. Among the listed strategies are attending a specific training program (for which a substitute teacher will be provided), collaborating with the team in implementing the Treasures reading series, observing another teacher implementing the Treasures reading series, using appropriate assessments to determine reading groups, posing questions to the class within the curriculum and responding to student responses (for which Respondent will be observed twice so she can obtain feedback on her techniques), and implementing all components of the calendar math kit. For student performance, the PDP states that Respondent fails to monitor student progress in attaining achievement standards and use test data to diagnose student weaknesses. Among the listed strategies are using the Successmaker Enterprise (SME) computer program to assess student achievement, place students in appropriate reading groups, and determine suitable instructional strategies; administering DRAs to place students in appropriate reading groups and determine suitable instructional strategies; and accepting assistance from the reading coach and team leader to ensure the proper use of reading assessments and groupings. For classroom management, the PDP states that Respondent failed to create and maintain an organized and pleasant working environment in the classroom and use appropriate procedures to refer individual students for further assessment or intervention. Among the listed strategies are identifying locations for required visual elements with separate areas for the Word Wall, posted student work, and lesson presentation, preparing a list of needed materials used by other second grade teachers, collaborating with the team to develop a class schedule that incorporates a 90-120 minute reading block and adequate time for other subjects, and reviewing existing Child Study Team packets with the guidance counselor, who will help in their completion by Respondent. Before the Norcrest principal could sign the new PDP, the District directed her to surplus a number of teachers. When the principal asked for volunteers, Respondent said that she would accept a transfer. Due to Respondent's status as a teacher with a PDP, Respondent's voluntary transfer had to be approved by the District, which did so. For the second time in as many years, Respondent surplused herself out of a deteriorating professional situation. Arriving at Lyons Creek, Respondent learned from the principal that she was to teach reading and sixth-grade science. Respondent asked to switch from science to social studies, and, after obtaining the consent of the teacher who had been assigned to teach social studies, the principal reassigned Respondent to teach social science, instead of science. As ordered by the District, the principal discarded the third PDP, so that Respondent could start at Lyons Creek with a clean slate. Respondent's slate did not long remain clean, though. Based on two observations that he performed in October, the principal concluded that this was one of the worst classrooms that he had ever observed. In social studies, Respondent was misinforming the students. In reading, Respondent was not collecting crucial fluency data and, when she collected it, it was unusable. By mid-November, the Lyons Creek principal began preparing a fourth PDP for Respondent. Again, the PDP process was slowed by Respondent's lack of cooperation. Several attempts to schedule meetings were unsuccessful due to Respondent's refusal to accept hand-delivered notices, claims of a lack of notice of previously scheduled meetings, and absences from school due to illness. On January 12, 2009, the principal presented to Respondent her fourth PDP, which addresses the three deficiencies addressed previously: lesson presentation, student performance evaluation, and classroom management. The deadline for elimination of the itemized deficiencies is April 23, 2009. Any protestation to the contrary notwithstanding, it appears from the similarity of the third and fourth PDPs that the principal or his staff consulted the third PDP in the preparation of the fourth PDP; however, the fourth PDP was entirely appropriate in its contents. The deficiencies listed for lesson presentation are the failure to use appropriate instructional techniques, including available materials and technology that support learning of the specific knowledge and skills; ask clear questions that require students to reflect before responding; give brief, explicit directions and check for understanding; and provide timely and specific written or verbal feedback on student work. Strategies include meeting with the department chair regularly to implement the required curriculum on a daily basis and obtain feedback based on the chair's observations; meeting with the New Educator Support System (NESS) coach, who will model appropriate presentation techniques; and collaborating with the reading coach to incorporate vocabulary into the lesson, teach words in context, and use techniques from 9 High Yield Strategies. The deficiencies for student performance evaluation are the failure to monitor student progress in meeting achievement standards and to use test data to diagnose individual student weaknesses and strengths. Strategies include working with the reading coach to understand and use Virtual Counselor; working with the testing coordinator to obtain the students' test scores; under the guidance of the department chair, regularly testing the students; and, in cooperation with the department chair, determining which students need remediation and acceleration. The deficiencies for classroom management are the failure to create and maintain an organized and pleasant working environment in the classroom, to encourage students to participate and contribute to class activities, and to use appropriate procedures to refer individual students for further assessment or intervention by other professionals. Strategies include working with the NESS coach to implement classroom procedures that are conducive to learning, observing other teachers implement effective classroom management practices, and viewing videotapes portraying effective classroom management. At the mid-point of the 90-day period, the principal scheduled a meeting, as is customary. He set it for 10:00 a.m. on February 24 and arranged for coverage of Respondent's classes. Instead of attending the meeting at its scheduled starting time, Respondent spent an hour caucusing with her union representative and a private attorney, trying to decide which of them would represent her. Finally, at 11:00 a.m., Respondent entered the meeting with her union representative. At that time, the principal advised her that, based on his most recent observation on February 19, she was still deficient in lesson presentation, student performance evaluation, and classroom management. Respondent's performance deteriorated after she received the fourth PDP. In January, Respondent failed to enter her students' interim scores. The next month, Respondent failed to record grades for students' reports. For the second term's grades, Respondent had only three or four graded items, and they were all in the same month. For one entire grading period, Respondent administered no quizzes or tests. Respondent could not meet the District deadline for reporting grades without relief from other duties. Before long, Respondent's grades bore no correspondence to student performance. An important reading test, known as the San Diego assessment, requires three administrations to report each student's growth during the year. The Lyons Creek principal described it as an "ordeal" to get Respondent even to administer the test. When she finally entered data, it was unusable. Just as she had done the previous year with the DRA data, Respondent entered the same data for the second and third administrations, making it impossible to determine if a student had grown or was in need of remediation and, if the latter, to identify the specific curriculum that would assist the student. Just as was the case with the reporting of obsolete DRA data, the reporting of the same San Diego data for the second and third assessments also made it less likely for others to notice that Respondent was not performing important job duties. Respondent continued to misinform her class. One day, while the principal was observing her, Respondent told the class that they would have three hours to complete the upcoming FCAT. In fact, they would have only 80 minutes. Within three months of her arrival at Lyons Creek, Respondent and her classes were coming apart. Respondent called a girl in one class a "vicious dog." (The student claimed that Respondent called her a "bitch.") Respondent routinely yelled at the class. The principal was inundated by cascading complaints from parents covering poor teaching, unreliable grading, failure to respond to parent communications, inappropriate comments to students, and classrooms in chaos. The beleaguered team leader implored the principal to assign an administrator to Respondent's parent-teacher conferences due to their explosiveness. On May 5, 2009, the principal prepared a formal evaluation of Respondent. He assigned her "unsatisfactories" in lesson presentation, student performance evaluation, and classroom management and, thus, on overall rating of "unsatisfactory." The principal recommended to the superintendent that Respondent's contract be terminated. Respondent eventually retired in September 2010. After presenting to Respondent the 2008-09 evaluation, the principal relieved her of her teaching duties and assigned a substitute teacher to finish the remaining weeks of school. In preparing to discharge her duties, the substitute teacher found boxes of ungraded papers and assignments.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of incompetence, in violation of section 1012.795(1)(c), Florida Statutes, and permanently revoking her educator certificate. DONE AND ENTERED this 7th day of August, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2012. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Jeffrey S. Sirmons, Esquire Johnson and Sirmons, LLP Suite 309 510 Vonderburg Drive Brandon, Florida 33511 keckler@verizon.net Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast 13th Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
Findings Of Fact At all times material hereto, Respondent has been a licensed real estate broker in the state of Florida, having been issued license number 0253588. In approximately the early part of 1991, Scott William Katz, the son of a friend of Respondent, visited Respondent and advised her that he would be purchasing income producing properties for investment purposes and that he wanted Respondent to act as his broker and manage those properties. In prior years, Respondent had managed properties for other investors in a similar fashion, and she agreed to do so for Katz. On May 15, 1991, two of Petitioner's investigators went to Respondent's office to conduct a routine office audit. One of those investigators had previously scheduled an appointment with Respondent to conduct that audit. During the scheduling of that appointment, that investigator had specifically advised Respondent as to the records and documentation Respondent was to have available for them to review. Respondent failed to produce all of the records requested. Further, the investigators were prevented from completing their audit during that visit by the arrival of Katz at Respondent's office. He became irate and abusive when he discovered that the visitors were investigators for Petitioner and were reviewing "his" files. The investigators left due to his behavior. On May 20, 1991, the investigators returned to Respondent's office to continue with their audit and to review the records and documentation the Respondent had failed to produce on their first visit. Respondent still failed to produce all of the records required by the investigators to be produced for their review. One of those investigators subsequently returned to Respondent's office to investigate three complaints which had been made against Respondent. During that visit, Respondent did not offer for review any of the records which had not been produced by her during the two office audit visits. It was discovered during the audit that Respondent's only escrow account was an interest bearing passbook savings account which she had opened with $500 of her own funds. Although Respondent had no written consent from persons whose money she held in trust to do so in an interest bearing account, her testimony that she paid the interest to those persons whose money she held in trust is uncontroverted. Because the escrow account was merely a passbook savings account, Respondent was unable to produce for review by the investigators bank statements, cancelled checks, and deposit slips, the normal escrow account records. Respondent also failed to produce complete files related to the transactions for which she held escrowed funds in order that her escrow account could be properly audited. Respondent also failed to prepare, sign, and produce for inspection written monthly reconciliation statements comparing the total trust liability with the reconciled bank balance of her escrow account. By June of 1991 Katz had filed for bankruptcy. In June Katz advised Respondent that he wanted her to find tenants for certain properties and directed her to notify existing tenants that they should begin sending their rent checks to Daniel L. Bakst, the trustee for Katz' bankruptcy estate, or be evicted. In June and July Respondent sent three letters to tenants in accordance with Katz' directions. As a result of Respondent's efforts and as a result of newspaper ads placed by Katz, Respondent located tenants for 22 apartments. Respondent did not negotiate any leases or collect any monies from those tenants. She referred interested renters to Daniel Bakst to negotiate leases with him and to pay him their security deposits and rental monies. Further, as a result of the letters Respondent sent to existing tenants in June and July, some tenants did pay their rent monies to Bakst. No tenants paid rent monies directly to Respondent, and Respondent was never paid for her efforts. Respondent's June 11, 1991, and July 5, 1991, letters advising tenants to begin making timely rent payments to Bakst, Katz' bankruptcy trustee, or face eviction were sent to tenants of property located at 250 Seminole Avenue, Palm Beach, Florida. At the time, that property was owned by a Mr. and Mrs. Gyorky and was the subject of a foreclosure action initiated by Prime Bank. It was necessary for Prime Bank to obtain an order from the United States Bankruptcy Court for the Southern District of Florida finding that Katz had no ownership interest in that property, directing Trustee Bakst to pay to Prime Bank the rental monies wrongfully collected, ordering Respondent and Katz to cease any further effort to interfere with the management of the property or to otherwise interfere in the state court foreclosure action, and ordering all tenants to not pay Katz or Trustee Bakst any future rent payments. Similarly, Respondent's June 8, 1991, June 11, 1991, and July 5, 1991, letters advising tenants to begin making timely rent payments to Bakst, Katz' bankruptcy trustee, or face eviction were sent to tenants of property located at 361 South County Road, Palm Beach, Florida. At the time, that property was owned by M. L. Brummel and was the subject of a foreclosure action initiated by Union Bank. Katz had no ownership interest in that property. At the time Respondent directed letters to tenants at 250 Seminole Avenue and 361 South County Road directing them to make their rental payments to Katz' bankruptcy trustee and at the time that Respondent referred prospective tenants for the properties at those addresses to the bankruptcy trustee to negotiate leases, Respondent believed that Katz had an ownership interest in those properties.
The Issue Whether Cheryl Rayam (Respondent) should be dismissed from her employment with the school district.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Lake County Public School District. As such, it has the authority to regulate all personnel matters for the school district. See §1001.32, Fla. Stat. (2009). At all times material to the allegations of this case, Respondent was an employee of the School Board assigned to middle schools within the district. As such, it was expected that Respondent would faithfully perform the duties assigned to her and would comply with all terms of her agreement with the School Board. Respondent's assignment at EMS as an exceptional education teacher led to the instant case. At all times material to this matter, Respondent’s employment relationship with Petitioner was subject to a Professional Service Contract of Employment for Instructional Personnel of the Public Schools. Additionally, on April 20, 2007, Respondent signed a compliance plan so that she would become eligible for the designation of "highly qualified" instructor. Respondent elected to seek the two-year option within which to obtain the designation as she intended to obtain the reading endorsement. The document executed by Respondent (Petitioner's Exhibit 2) noted that Respondent would have to successfully pass the MGIC together with achieving the reading endorsement designation. The compliance plan also specified that failure "to complete the components of this compliance plan by the specific timeline may result in the termination of employment." Respondent was to obtain the reading endorsement and pass the MGIC no later than June 30, 2009. In short, Respondent failed to pass the MGIC. Although she achieved the reading endorsement and has successfully completed the requirements for ESOL endorsement, Respondent did not successfully complete the MGIC examination. The "highly qualified" designation requirement came as a result of the No Child Left Behind provisions of law. As an exceptional student educator in a self-contained classroom, Respondent was identified as one of the teachers who were required to pass the MGIC examination. Other teachers in the school district were also within the category of those who were required to achieve highly qualified status. On January 7, 2008, and March 18, 2009, Respondent was reminded by Petitioner of her continuing obligation to achieve highly qualified status. Respondent did not successfully pass the MGIC by June 30, 2009. Thereafter, she was granted an extension in order to afford her more time to pass the exam. By memorandum dated May 7, 2009, Respondent was given until the end of the first term of the 2009/2010 school year to pass the exam. When the winter break came in December 2009, Respondent had still not passed the MGIC. Although Respondent claimed that medical problems interfered with her ability to take the exam, she never sought a medical accommodation from Petitioner. Although Respondent achieved the reading endorsement, Petitioner was not obligated to place her in a reading endorsement position. All job positions held with Petitioner required Respondent to achieve highly qualified status. Petitioner treated all teachers who were required to achieve highly qualified status similarly. Respondent did not get singled out for any reason. Other teachers who signed compliance plans were also required to pass examinations to remain employed with the district. Respondent was duly notified of the Petitioner's intention to terminate her employment by letter dated December 22, 2009. Thereafter, Respondent timely challenged Petitioner's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order terminating Respondent's employment for the position requiring highly qualified status but allowing Respondent leave in the future to reapply for employment with the district for any position that may fall open for which she is qualified and certified to teach. DONE AND ORDERED this 28th day of May, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2010. COPIES FURNISHED: Dr. Susan Moxley, Superintendent Lake County Public Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2486 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Cheryl Rayam 1705 Idaho Avenue Orlando, Florida 32809 Andre T. Young, Esquire 11 North Summerlin Avenue, Suite 210 Orlando, Florida 32801 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Rose Davidson (Respondent) committed the acts alleged in the Miami-Dade County School Board's (School Board) Notice of Specific Charges and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At the times relevant to this proceeding, Respondent was employed pursuant to a professional services contract as a second grade teacher at Graham Center, which is a public school in Miami-Dade County. Respondent’s employment is governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Respondent has been employed by the School Board since 1990. She spent the first ten years of her career teaching elementary students at Westview Elementary. She next taught high school for approximately 15 years. She was thereafter transferred to Graham Center in the 2011-2012 school year where she taught second grade for that school year and the 2012-2013 school year. SAT During the spring of every school year, all Miami-Dade County public school students in kindergarten, first grade, and second grade take the SAT to assess each student’s reading comprehension and mathematics problem-solving skills. During the 2012-2013 school year, the reading portion of the SAT was administered on April 9, 2013, and the math portion was administered the following day. The SAT is a norm-referenced standardized assessment used nationwide to gauge student achievement. The assessment provides a means to compare a student’s achievement with peers across the country. The assessment also provides a means to determine a student’s needs, and can serve as a tool in developing strategies to assist the student. The SAT can be administered only once per school year. During the 2011-2012 and 2012-2013 school years, all of the kindergarten, first grade, and second grade students at Graham Center took the SAT. During the 2011-2012 school year, Respondent served as a proctor for the administration of the SAT to a class, but she was not the administrator of the SAT. For the 2012-2013 school year, Respondent served as the administrator of the SAT to her class. In preparation for the upcoming administration of the SAT, Karen Belusic, Graham Center’s assistant principal, conducted a training session on March 14, 2013, for all the second grade teachers at Graham Center on how to properly administer the SAT. Respondent attended the March 14 training session. The training informed the teachers about the procedures for administering the test, test security, and how to handle test materials. Ms. Belusic instructed the teachers not to look at test items, review test items, or assist students with test items. Teachers were told to report any testing irregularities. In preparation for the administration of the annual SAT, during the first week of March 2013, School Board staff provided all public elementary schools with an SAT practice test to familiarize students with the format of the test. Respondent and the other second grade teachers at Graham Center received the practice test during the March 14 training session. The cover sheet of the practice test provided by School Board staff reflects that it is a "Practice Test Booklet" for the SAT. In addition to the practice test provided by School Board staff, Eileen Gross, the grade chair for second grade at Graham Center, provided all second grade teachers a variety of practice booklets on a weekly basis beginning just prior to the week of February 16, 2013, and ending just before the week of March 25, 2013. Ms. Gross also distributed three reading simulations and three math simulations to the second grade teachers. Respondent considered the practice test she received from School Board staff and the materials she received from Ms. Gross to be basic. Sharon Moyd is a fourth grade teacher at Lakeview Elementary School (Lakeview), which is a public school in Miami-Dade County. Respondent and Ms. Moyd are longtime friends. Well before the administration of the SAT, Respondent asked Ms. Moyd if she had any materials that would help her class prepare for second grade. Ms. Moyd asked several second grade teachers at Lakeview if they had any materials that might help her friend. Tangle Butterfield, a Lakeview second grade teacher, gave Ms. Moyd what Ms. Butterfield understood to be a practice SAT test. That practice test was admitted into evidence as Petitioner’s Exhibit 5 and will, for ease of reference, be referred to as Exhibit 5. Ms. Butterfield had received Exhibit 5 from a reading coach during a Saturday workshop in 2011. Ms. Butterfield and at least one other Lakeview teacher had utilized Exhibit 5 in preparing students for the SAT. The cover sheet of Exhibit 5 reflects that it is a "Practice Test Booklet" for the SAT, and is almost identical to the cover sheet of the practice test provided by the School Board staff. Ms. Butterfield put Exhibit 5 in a manila envelope and gave it to Ms. Moyd. Ms. Moyd put the envelope in the trunk of her car without reviewing the contents of Exhibit 5, where it remained for several weeks. In mid-March 2013, Ms. Moyd informed Respondent that she had something for Respondent. They arranged a mutually convenient place to meet (in a parking lot) where Ms. Moyd gave the envelope and its content to Respondent. Ms. Moyd never reviewed the contents of Exhibit 5. Spring break was the week prior to the administration of the 2013 SAT. On the last Sunday of that week, Respondent "glanced over" Exhibit 5 because she wanted the school secretary to make copies of the material when school resumed the next morning. The next morning, Respondent took Exhibit 5 to the office at Graham Center and had a secretary make enough copies for her students. Respondent then distributed the copies to her students for them to take home and study. There was an allegation that Respondent told her students not to tell anyone about Exhibit 5. The greater weight of the credible evidence fails to establish that allegation. Respondent gave out Exhibit 5 to her class and told the students that she would give them homework credit for taking the practice test. The next day, Tuesday, April 9, 2013, Respondent collected the practice tests from the students and administered the reading section of the SAT to her class. That same day, when her students were out of the class at physical education and music, Respondent graded the practice tests that had been completed by her students, including the math section. Respondent marked the correct and incorrect answers. Respondent returned the graded booklets with the corrected answers for them to study prior to the next day’s administration of the math portion of the SAT. The math portion of the SAT is designed for the administrator to read the question to the class and for the student to answer the question as read. The SAT booklets that the students complete during the actual administration of the math portion of the SAT contains only multiple choice answers. They do not contain the corresponding questions. The math portion of Exhibit 5 contains multiple choice answers for the students, but it does not have the corresponding questions in the same part of the booklet as the multiple choice answers. The last part of the math portion of Exhibit 5 includes instructions to the administrator of the test. Those instructions contain the questions the administrator is to read to the students.1/ Rosa Sanchez, a reading coach at Graham Center, served as a proctor for the SAT administered by Respondent on April 9 and 10, 2013. On April 10 Ms. Sanchez observed a male student (K.R.) who kept dropping his pencil. Ms. Sanchez gravitated towards K.R. to make sure he was not disturbing other students. As Ms. Sanchez stood next to K.R. she looked at his test booklet and noticed that he had answered a question that Respondent had not yet read to the class. The answer K.R. chose involved a chart, which took up most of the page. The student’s test booklet did not contain the question. Before the students could answer the question, the test administrator was supposed to read instructions about where to start on the chart and how to move along the chart. Ms. Sanchez told K.R. that he needed to stop working ahead because he had not yet heard the instructions from the teacher. K.R. told Ms. Sanchez that he remembered the question from the test booklet. Ms. Sanchez then raised her hand to Respondent, who was at the front of the class, to indicate that Respondent needed to stop the test. Instead of stopping, Respondent looked at K.R. and stated, "K. stop saying crazy things and pay attention." Ms. Sanchez immediately looked around and observed that other students appeared to be answering questions Respondent had not asked. At the conclusion of the SAT, Ms. Sanchez reported what she believed to be an irregularity to Ms. Belusic, the assistant principal who served as the SAT chairperson for Graham Center. Together they informed Ms. Alfaro, the principal. Ms. Alfaro went to Respondent’s classroom and asked her for all copies of Exhibit 5. Respondent opened a locked cabinet, retrieved the material, and handed the material to Ms. Alfaro. When asked, Respondent told Ms. Alfaro that she had gotten the material from a teacher at Lakeview named Sharon. Ms. Alfaro compared Exhibit 5 to the actual SAT test. Many of the same questions and answers contained in Exhibit 5 were identical to questions on the actual SAT test. Upon further investigation, Dr. Sally Shay, the District Director of the Office of Assessment Research and Data Analysis, compared Exhibit 5 and the actual SAT test. On the reading portion, Exhibit 5 contained 30 questions and answers while the actual SAT contained 40 questions and answers. The questions and answers on the reading portion of Exhibit 5 were identical to 30 of the questions and answers on the real SAT. For the math portion, Exhibit 5 contained 30 questions and answers while the actual SAT contained 44 questions and answers. The questions and answers on the math portion of Exhibit 5 were identical to 30 of the questions and answers on the real SAT. All of the SAT scores for Respondent’s students were invalidated. Petitioner failed to establish that Respondent knew or should have known that Exhibit 5 contained actual SAT questions. Petitioner asserts that Respondent used actual SAT questions and answers to prepare her students so their higher scores would qualify her for a performance bonus of approximately $350.00. That theory is improbable, and it is not supported by the evidence. FAIR The FAIR assessment is a state-mandated assessment test to evaluate a student’s reading ability. Second graders take the FAIR assessment three times during a school year. There is a section of the assessment that deals with students spelling words on paper that are said by the teacher. In addition, there is a part of the test that involves the use of a computer, with the student reading the question from a booklet and giving the teacher his or her answer. The student sits next to the teacher, who inputs into the computer whether the student’s answer was correct. There is a script that informs the teacher whether a particular answer is acceptable. Toward the end of the 2012-2013 school year, after the SAT scores for Respondent’s students were invalidated, Ms. Alfaro examined the scores of Respondent’s students on the FAIR assessments for the school year 2012-2013. By that time Respondent had administered the FAIR assessment to her students for all three periods. For the first period assessment, towards the beginning of the school year, Respondent’s students’ scores ranged from 14% to 99%. For the second period assessment, towards the middle of the school year, the scores ranged from 92% to 99%.2/ For the third assessment, toward the end of the school year, one student scored 73%, but the other students ranged between 92% and 98%. Ms. Alfaro considered the scores for the last two periods to be too high, and had Ivette Padron-Rojas, a Curriculum Specialist, re-assess Respondent's class for the third assessment period. The re-assessment resulted in substantially lower scores for most of Respondent’s students. Petitioner offers its theories for the discrepancies in scoring in paragraph 27 of the Notice of Specific Charges, which alleges in part that "tests administered by Respondent were misleading and erroneous, and that Respondent’s scores were inflated and manipulated, in part due to Respondent providing students with the actual spelling words to study and practice prior to taking the assessment." The School Board established that students’ test scores for assessment period three were substantially higher when Respondent administered the assessment than they were when Ms. Padron-Rojas administered the assessment. However, Petitioner failed to prove its allegation that Respondent provided the students with the actual spelling words to study before the students took the assessment, and there was no other evidence to establish that Respondent’s administration of the assessment was "misleading," "erroneous," "inflated," or "manipulated." The School Board failed to prove that Respondent acted inappropriately regarding the FAIR assessments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is FURTHER RECOMMENDED that the final order dismiss the charges against Rose Davidson set forth in the Notice of Specific Charges. It is FURTHER RECOMMENDED that the employment of Rose Davidson be reinstated with full back pay and benefits. DONE AND ENTERED this 30th day of May, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2014.
The Issue Whether just cause exists to terminate Respondent from his employment with the Sarasota County School Board.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher. Respondent is certified to teach biological sciences grade 6 through 12. Respondent is not certified to teach reproductive health or health opportunities through physical education classes. Respondent was reassigned to the Landings,6/ the School Board’s administrative offices during the course of the investigation. On May 1, 2014, Superintendent White executed a letter to Respondent which provided in part: It has been reported to me by Dr. Rachel Shelley, Principal of Booker High School, that you have been insubordinate by not maintaining a professional learning environment with your students. It is reported that progressive discipline has occurred; however, these interventions have not been successful. You have grieved the initial proposed termination set for March 19, 2014 and on April 29, 2014; you were notified that this grievance was denied. Accordingly, I will recommend to the School board that it terminate your employment effective May 21, 2014. The School Board will vote to accept or reject my recommendation at its May 20, 2014 meeting. The meeting will be held at 1980 Landings Boulevard, Sarasota, Florida at 3:00 p.m. Background: Respondent was hired to teach integrated science to ninth-grade students at Booker High School (Booker) beginning in the 2001-2002 school year. Respondent taught at Booker for three years under Principal Jan Gibbs. At the beginning of the 2004-2005 school year, Respondent became the dean of a newly created middle school called Student Leadership Academy (SLA). Respondent worked at SLA for a year and a half. In the spring of 2006, Respondent transferred to and taught honors biology at Riverview High School. Respondent returned to Booker for the 2006-2007 school year under Principal Jill Dorsett. During the 2008 spring break, Principal Dorsett was reassigned to the Landings, and Constance White-Davis became Booker’s principal. Principal White-Davis served Booker for several years. During the 2008-2009 school year, Assistant Principal (AP) Edwina Oliver served as a teacher evaluator of Respondent. In April 2009, AP Oliver discussed with Respondent certain guidelines and expectations for teaching at Booker. AP Oliver reduced her comments to a memorandum of instruction (memo) to Respondent. This memo was not considered as discipline, but rather a reminder to Respondent of the guidelines and expectations for Booker teachers. The reminders included: responsibilities of assigned students according to Smartweb;7/ effective use of instructional time;8/ and consistent enforcement of policies related to student’s expectations.9/ In March 2010, AP Oliver issued a verbal reprimand to Respondent regarding his involvement in a Facebook exchange with a female student. During the Weingarten hearing,10/ Respondent admitted that R.P. was a student in his classroom, and it probably wasn’t the best idea that he responded to a female student’s Facebook posting by providing his cell phone number. Respondent was evasive in answering questions at the hearing regarding this incident; yet, he asserted that neither he nor R.P. contacted one another after Respondent supplied his cell number. Principal Rachel Shelly’s Tenure: When Ms. Shelley began her tenure as Booker’s principal, she devoted her first year to listening, watching, and meeting with administrators, lead teachers, teachers, parents, and community members. Principal Shelley found Respondent to be jovial, social, highly intelligent (in that he knew his curriculum), and very popular among the students. At some point AP Oliver shared with Principal Shelley her concerns regarding Respondent and his teaching style. AP Oliver was concerned that Respondent showed a lot of videos in his classroom, that he allowed students to come and go at will, and that he lacked high expectations for his students. Principal Shelley maintains high expectations for all Booker students and teachers. In order for Booker students to achieve their highest potential, Principal Shelley needs highly effective teachers who will “set and consistently maintain high expectation[s].” Booker (as all public schools in Florida) is mandated to teach to the Florida Education Accomplished Practice (FEAP) standards. FEAP requires that teachers must know how to do certain things and be able to teach those things to students. In order to meet these high standards, Principal Shelley tries to hire highly effective teachers in order for her students to advance. In April 2013, Respondent was placed on administrative leave while the school district conducted an investigation into an alleged battery of a student. A female student came forward and alleged that while she was alone in a classroom/preparation room grading papers for Respondent, Respondent brushed by her and grabbed her butt. The student reported the incident to Principal Shelley, who immediately instituted the district protocol by removing Respondent from the classroom environment. Respondent was instructed to wait for further instructions from Principal Shelley. Principal Shelley notified law enforcement via the Booker school resource officer, and a criminal investigation was conducted. For the remainder of the 2012-13 school year, Respondent worked at the Landings. Upon completion of the district’s investigation, it was determined that Respondent had violated two school policies: allowing a student to grade other students’ papers; and allowing a student to be alone in a classroom/preparation room. Respondent was suspended from the classroom for five days without pay. He served the suspension between October 16 and October 22, 2013. In late September 2013, the criminal charges against Respondent were dropped, and he was allowed to return to the classroom with specific expectations regarding his classroom teaching and management style. One specific instruction given to Respondent was that he was not to allow unassigned students in his classroom. The evidence clearly demonstrated that Respondent allowed a male student, K.C., who was not assigned to Respondent, to enter Respondent’s classroom during Respondent’s lunch/planning period. K.C. remained in Respondent’s classroom approximately 10-15 minutes. Respondent did not ask K.C. for a hall pass. Principal Shelley gave Respondent a verbal warning regarding his misrepresentation of the facts surrounding K.C.’s classroom visit. In November 2013, Principal Shelley conducted a walk- through of Respondent’s classroom. While there, Principal Shelley noted that Respondent’s lesson plans were not completed or available for viewing, and that students were eating in the classroom. Respondent was advised of these issues. In December 2013, Principal Shelley conducted a Weingarten hearing regarding the number of labs that Respondent was conducting in his classes. Principal Shelley directed Respondent to implement hands-on labs as required by the physical science curriculum, as she found that Respondent was not conducting the requisite number of labs. In January 2014, during Respondent’s marine science class, Respondent showed human pictures of male and female genitalia infected with the human papillomavirus (HPV). Respondent thought it was a “teachable moment” for juniors and seniors in high school. He continued to state something to the effect that if the students weren’t going to abstain from sex, they should use “condom sense.” Respondent admitted it was “a huge lapse in judgment,” “it was not in any way related to marine science” and he was “deeply sorry if [he] offended any student or parent.” Respondent admitted that he engaged in a conversation with students regarding “BJ’s and Costco.”11/ One student, K.S. (also known as K.L.R.S.), credibly testified that Respondent engaged in a conversation with students acknowledging that he (Respondent) liked Hispanic girls. K.S. was also distressed when Respondent winked at her following a comment about Respondent liking curly-haired Hispanics. Additionally, Respondent admitted to making sexually charged statements about his wife and/or his preference for Latin women. Even if those statements were taken out of context, Respondent should not have engaged in these conversations with students. A female student was offended by Respondent’s actions and reported them to a teacher, who in turn encouraged the student to report them to Principal Shelley. Once Principal Shelley heard the allegations, she immediately implemented the district protocol and relieved Respondent of his teaching responsibilities. After the district conducted another investigation, Superintendent White issued the termination letter to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 22nd day of December, 2014, 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 22nd day of December, 2014.
The Issue The issues in this case are whether and how the Education Practices Commission (EPC) should discipline the Respondent on charges that she submitted another teacher’s work to earn an endorsement to her teacher certificate for English for Speakers of Other Languages (ESOL).
Findings Of Fact The Respondent, Kimberly Bank, holds Florida educator certificate 993098, which expires on June 30, 2018. She is certified in English and reading. During the 2012-2013 school year, she was employed by the OCPS as a reading teacher at Oakridge High School. In January 2013, the Respondent and a fellow Oakridge reading teacher named Charnetta Starr enrolled in an online course through CaseNEX to earn credit towards an ESOL endorsement to their teaching credentials. ESOL endorsements were required for their jobs. Ms. Starr completed all required course work, including participation in online discussions, journal entries, and workbook submissions, and earned credit for the course. The Respondent began the CaseNEX class, but stopped participating after a few weeks and was told by the course facilitator that she was being withdrawn from the class. The course ended on April 24, 2013. On May 2, 2013, the Respondent emailed Ms. Starr to ask her to provide the Respondent with Ms. Starr’s course work, which Ms. Starr emailed to her. The Respondent enrolled to take the CaseNEX class again during the summer of 2013. She copied Ms. Starr’s journal entries and workbook submissions from the January course and submitted them verbatim as her own work for course credit during the summer course. The submissions struck the course facilitator as being very familiar, and her investigation revealed that they were exact copies of Ms. Starr’s submissions. The facilitator reported this to her supervisor. The Respondent was again withdrawn from the class, this time for violating course prohibitions against plagiarism. The Respondent and Ms. Starr were reported to OCPS, which reprimanded them and suspended them for three days. The Petitioner initiated separate, but virtually identical administrative cases to discipline the educator certificates of both the Respondent and Ms. Starr. The Petitioner agreed to settle Ms. Starr’s case for a reprimand and $750 fine, and the EPC accepted the settlement, because Ms. Starr was not perceived to have used the Respondent’s work product, but only to have allowed her work product to be used by the Respondent. Ms. Starr testified that she agreed to the settlement but actually does not believe her actions were wrong or violations because she did not know the Respondent was going to plagiarize her work and submit it for credit. Because the Respondent was perceived to have used Ms. Starr’s work product and submitted it as her own for CaseNEX course credit, the Respondent’s administrative case proceeded, with the Petitioner seeking to fine her, suspend her educator certificate, and place her on probation. The Respondent contends that she and Ms. Starr collaborated on all of Ms. Starr’s journal entry and workbook submissions with the intention that each would submit the identical work as their own. Initially, the Respondent contended that this was permissible “collaboration” under the CaseNEX honor code and course requirements. Later in the hearing, the Respondent seemed to concede that it was against the honor code and the course’s requirement that each teacher taking the course had to submit his or her own original work. At that point in the proceeding, she seemed to be taking the position that her conduct mirrored Ms. Starr’s and that her discipline should be the same (i.e., that she should not be suspended). In her proposed recommended order, the Respondent again took the position that her conduct was permissible collaboration under the CaseNEX honor code and the course’s requirements and that no discipline should be imposed. The evidence was clear and convincing that the work submitted by the Respondent for credit in the summer 2013 CaseNEX course was not the product of collaboration between her and Ms. Starr. The Respondent testified that she and Ms. Starr collaborated by jointly doing work for the course from the very beginning of the January 2013 course with the intention of each submitting their joint work product for credit. Yet, it is obvious that the Respondent’s work submissions prior to her withdrawal from the January 2013 course were not the same as Ms. Starr’s. The Respondent testified that she collaborated with Ms. Starr throughout the January 2013 CaseNEX course. She testified that they produced joint work for them both to submit for credit in the course. She testified that after she was withdrawn from the January course, she continued to collaborate and produce joint work product with Ms. Starr, and that it was understood that the Respondent would submit the work as her own when she retook the course. The Respondent testified that she misplaced and lost her thumb-drive with a digital copy of the joint work product and asked Ms. Starr to send her a copy as an attachment to an email, which Ms. Starr did on May 2, 2013. Ms. Starr testified that the Respondent emailed her to ask for a copy of Ms. Starr’s work product from the January CaseNEX course and that Ms. Starr complied on May 2, 2013. Ms. Starr testified that this was her own personal work product, not joint work product. She denied knowing that the Respondent intended to plagiarize and submit it as her own. She testified persuasively that there were other legitimate uses the Respondent could have made of the work besides plagiarizing it. Where there is conflict between the Respondent’s testimony and Ms. Starr’s testimony, the Respondent’s is rejected as being false, and Ms. Starr’s is credited as being the truth. The evidence was clear and convincing that Ms. Starr did her own work throughout the January 2013 course. None of the work submitted by Ms. Starr for credit in the January 2013 course was produced jointly with the Respondent. If the Respondent were telling the truth, and she and Ms. Starr collaborated on their work submissions, her early submissions for the January CaseNEX course would have been identical to Ms. Starr’s. They were not. On the other hand, some of her submissions during the course she took during the summer of 2013 were identical to Ms. Starr’s submissions. For this and other reasons, Ms. Starr’s testimony was more credible than the Respondent’s when their testimony was in conflict. The Respondent attempted to attack Ms. Starr’s credibility by use of a screen shot of an incomplete and out-of- context cell phone text message exchange between them on June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the Respondent: “OK. Did you sign up for the online modules for the $1000? Let’s start working on them so we can get paid on 7/31.” The Respondent answered: “Girl I have started. The kids do 2 hrs in the computer lab and I do the modules. They are easy but looooooong!” Ms. Starr replied: “OK. Send me any info you have for it please.” The Respondent texted: “You just watch a video and answer 2 multiple choice questions. Skip through the video and go to the questions. You can try as much as you want. There”. There was no evidence as to what preceded or followed the exchange. When Ms. Starr was confronted with the text exchange on cross-examination, she understood that it was being presented to impeach her testimony that the Respondent contacted her about providing the Respondent with their supposedly joint work product from the January CaseNEX course. In her haste to vehemently defend herself, Ms. Starr failed to realize that the text message exchange actually had nothing to do with her providing the Respondent with her work product from the January course, but was about a different course they were taking to earn bonus pay, and she testified incorrectly that it was the Respondent who initiated the text message exchange that was in evidence. The cross-examination failed to impeach the essence of Ms. Starr’s testimony. The evidence was that the Respondent is a good teacher. She performed satisfactorily both at Oakridge before the CaseNEX cheating incident and at Conway Middle School after it. Nonetheless, it is clear that her effectiveness as an employee of the school district was seriously impaired by her plagiarism and cheating on the June 2013 CaseNEX course. For one thing, she was reprimanded and suspended for three days. For another, she did not get the ESOL endorsement that was required for the job she held at Oakridge. Since the Respondent was guilty of plagiarism, and Ms. Starr was less culpable, it is reasonable for the Respondent’s discipline to be harsher than Ms. Starr’s. A period of suspension is reasonable. Based on the EPC records of discipline imposed in similar cases that were officially recognized in this case, it appears that it has been the practice of the EPC to impose a one-year suspension, in addition to a fine, probation, and a requirement to take a college-level course in ethics, for a teacher who admits to plagiarism and cheating in a CaseNEX ESOL endorsement course. In the Respondent’s case, a longer period of suspension is warranted due to the Respondent’s dispute of the charges and her false testimony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order finding the Respondent guilty as charged, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the EPC, requiring her to take a college-level course in ethics under terms and conditions determined by the EPC, and imposing a fine in the amount of $750. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2016.
