The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 27th day of June, 2000.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of August, 2007.
The Issue Whether Respondent's educator's certificate should be subject to discipline for alleged attempts to persuade instructional staff members to change students' failing grades to higher passing grades without academic justification, for allegedly changing the grades of one or more students to higher grades without academic justification, and for allegedly "flagging" the grades of one or more students such that the grades would not count toward the students' grade point averages, in violation of Section 231.2615(1)(c), (f) and (h), Florida Statutes (2001), and Rule 6B-1.006(3)(a) and (d), (4)(b), and (5)(a) and (h), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Respondent, Suzanne Elliott, holds Florida Educator Certificate 558267, covering the areas of biology, physical education, and guidance counseling, which is valid through June 30, 2005. Ms. Elliott has a bachelor's degree in Physical Education, Recreation and Biology, and a master's degree in Guidance Counseling at the secondary level. Ms. Elliott was employed as a guidance counselor at Merritt Island High School ("Merritt Island") in the Brevard County School District (the "District") for the 1997-1998 and 1998-1999 school years. She had held this position since 1985. Ms. Elliott had also served for several years as the cheerleading coach at Merritt Island. Ms. Elliott was the crisis counselor for the entire Merritt Island student body, and was also heavily involved in special education and standardized testing. In fourteen years at Merritt Island, and eighteen years in the field of education, Ms. Elliott had no prior disciplinary actions brought against her license. Her employee evaluations uniformly ranged from "satisfactory" to "exemplary," with the exception of her evaluation dated October 26, 1998. This evaluation was "unsatisfactory," for reasons explained in the body of this Recommended Order. Relevant District policies To "establish suitable uniform procedures for marking and reporting progress of pupils," the District has adopted the Brevard County Secondary Schools Grading Procedures, which provide the following statement of purpose: Grades shall be a measure of a student's progress and achievement in mastering the subject matter, based on the quality of work done, and reflect a comprehensive evaluation which utilizes a number of marks. A student's regular attendance, daily preparation, and promptness in completing assignments should be consistent and congruent with these grades and taken into consideration in reporting a student's progress. During the period from 1997 to 2000, the Florida legislature required that a student have a 2.0 grade point average ("GPA") to compete or participate in sports, including cheerleading. Students who graduated in 1998-1999 were required to have a "minimum cumulative grade point average of 1.5 based on a 4.0 scale for the 24 credits required for graduation and a cumulative 2.0 unweighted GPA on all courses taken after July 1, 1997, which count toward graduation or a cumulative unweighted GPA of 2.0 on all courses taken." Students who graduated in 2000 and thereafter were required to have a minimum cumulative GPA of 2.0 based on a 4.0 scale for the 24 credits needed for graduation. Three of the District's Grading Procedures, and the proper interpretation thereof, provide the context for this case: the procedure regarding grade changes; the procedure regarding grade forgiveness, or "flagging" grades for courses that a student has repeated; and the procedure regarding "failure due to absences" or "FA" as a course grade. As to grade changes, the District's Grading Procedures provide: "Grades once recorded, other than an 'Incomplete,' will not be changed without approval of the principal. For justifiable academic reasons a principal may change a grade." Marjorie Ebersbach was the Area III Superintendent for Brevard County from 1997 to 1999. Area III included Merritt Island High School. As Area III Superintendent, Ms. Ebersbach was responsible for the operation of approximately 22 schools in the Brevard County area and reported directly to the Superintendent. Ms. Ebersbach confirmed that District procedure is that a student's grade may be changed for justifiable academic reasons with the permission of the principal. Merritt Island assistant principal Katherine Halbuer testified that a grade can be changed only by the teacher who assigned the grade or by the principal for justifiable academic reasons. Ms. Halbuer stated that under no circumstances does a guidance counselor have the authority to change a student’s grade. Cocoa Beach Junior/Senior High School ("Cocoa Beach") principal Leslie Patricia Vann, former Merritt Island principal William Dugan, Jefferson Middle School principal Gary Shiffrin, and Cocoa Beach teacher Mary Jane Binney, all testified that the District procedure for changing a student's grade is that the teacher who assigned the original grade may change it for a justifiable academic reason, with administrative approval. These witnesses agreed that a guidance counselor lacked the authority to change a student's grade. As to grade forgiveness for repeated courses, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA after the course is successfully repeated is referred to in the District as "flagging." A course flag can be added to a student’s transcript so that a certain course is excluded from the calculation of a student's grade point average. Guidance counselors do have the authority to flag a student's grades. At issue in this proceeding was the timing of the flagging. Each District employee who testified on behalf of the Department stated that after the student has retaken the course, received a higher grade, and had that grade posted to his official transcript by the district, the first course grade may be "flagged" so that the lower grade is excluded from the grade point average. These witnesses testified that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Ebersbach explained that while the student is retaking the course, he has "not earned a grade to replace the previous grade, and you’re excluding something from their academic record that you have no legal authority to exclude." Ms. Vann, Ms. Halbuer, and Mr. Dugan concurred with Ms. Ebersbach that the student must complete the second course and have the higher grade posted before the first grade could be flagged and excluded from the student's GPA. Barbara Jones, a guidance counselor at Cocoa Beach, who had interned under Ms. Elliott at Merritt Island, also testified that flagging a grade was appropriate only after the student had repeated the course and the second grade had been entered. Ms. Jones stated that she learned this procedure "on the job." Grade changes and flags were posted via computer data entry. For many years prior to February 1998, the District employed an IBM mainframe computer running programs written by District staff. This system was popularly known as "IRMA." In February 1998, the IBM mainframe was replaced by an IBM AS400 server, and the homegrown programs were replaced by a commercially developed software program called "Total Educational Resource Management System," or "TERMS." As to "failure due to absences," the District's Grading Procedures provide: When a student is to receive a failing grade due to excessive absences, the following guidelines will apply: Students who have earned an average of 70 or higher [i.e., a passing grade] will receive 69 [the highest failing grade] for the grading period. Students who have earned an average between 49 and 69 will receive the grade they have earned.... The District did not set a system-wide number of unexcused absences that would merit a course grade of "failure due to attendance" or "FA." Individual schools were allowed to establish their own standards. At Cocoa Beach, an FA would be given when a student had more than nine days of unexcused absences in a given course. A student who received an FA could appeal the grade by timely filing an appeal form and going before a faculty appeal committee, which could change the FA to the grade the student would have received but for the excessive absences. However, a student whose absences were due to truancy or skipping class would not be permitted to appeal the FA grade. The Allegations In August 1998, Ms. Vann, the principal of Cocoa Beach, was approached by one of her teachers, who asked her why a guidance counselor from Merritt Island would make inquiries as to the grades of a Cocoa Beach student. Ms. Vann thought this highly irregular, believing that a counselor from another school should first contact the principal of the school with any such inquiries. Upon investigation, Ms. Vann learned that the counselor in question was Ms. Elliott, and that she had contacted three Cocoa Beach teachers regarding S.H., a Cocoa Beach student and cheerleader, who was in the process of transferring to Merritt Island. At a principals' meeting on August 26, 1998, Ms. Vann raised the issue with Mr. Dugan, the principal of Merritt Island. Mr. Dugan told Ms. Vann that if she had allegations to make against Ms. Elliott, she should put them in writing and he would consider them. At about the same time as Ms. Vann began expressing concerns about Ms. Elliott, Merritt Island assistant principal Catherine Halbuer began her own investigation of Ms. Elliott. Heather Novitsky, a newly hired data entry clerk, came to Ms. Halbuer with a handwritten list of students and courses that Ms. Elliott had given her with instructions to flag the courses. Ms. Novitsky did not know what "flagging" meant. When Ms. Halbuer instructed Ms. Novitsky on the procedure for flagging a student's grade, she discovered that the students on the list had not repeated the classes that Ms. Elliott had marked for flagging. Ms. Halbuer met with Ms. Elliott in August 19982 to explain that a flag could not be entered until a student had repeated the class and the grade had been posted. At a subsequent meeting on August 26, 1998, Mr. Dugan and Ms. Halbuer again discussed the proper procedure for flagging student courses with Ms. Elliott. At this meeting, Mr. Dugan told Ms. Elliott that a course could not be flagged before the second class had been completed and the grade posted. Ms. Elliott indicated that she understood. Meanwhile, Ms. Vann was conducting an independent investigation of Ms. Elliott's involvement with student S.H. Ms. Vann personally reviewed S.H.'s academic history and discovered that someone outside of Cocoa Beach had made three grade changes to S.H.'s record without authorization from any teacher at Cocoa Beach. Ms. Vann also discovered that someone outside of Cocoa Beach had flagged six courses for S.H., none of which S.H. had retaken at the time of flagging. On September 11, 1998, Ms. Vann sent a package to Principal Dugan documenting her investigation into the grade changes and flags that had been made to S.H.'s records. Ms. Vann's cover letter to Mr. Dugan requested that S.H.'s transcript be corrected to reflect the grades that were issued by her teachers at Cocoa Beach. In response to Ms. Vann's memorandum and accompanying materials, Mr. Dugan commenced his own investigation into the allegations. He personally reviewed the student records compiled by Ms. Vann, and concluded from the user password on the computer printouts that Ms. Elliott was the person who flagged and changed the grades for S.H. Mr. Dugan also discovered that Ms. Elliott had flagged an "F" grade in Algebra I for Student M.P., despite the fact that M.P. had not retaken the course. Mr. Dugan decided that these findings merited a thorough review of Ms. Elliott's flagging practices. Mr. Dugan contacted the District's main office, which assigned its systems analyst, Andrea Young, to compile information for Mr. Dugan's review. Ms. Young spent approximately three months compiling computer records regarding Ms. Elliott's case. On September 15, 1998, Mr. Dugan orally informed Ms. Elliott of the allegations against her and gave her 24 hours to respond. Mr. Dugan also told Ms. Elliott that she was prohibited from accessing TERMS until the allegations against her were resolved. Ms. Elliott did not respond to the substance of the allegations by September 16, 1998. However, on that date Ms. Elliott requested that Mr. Dugan put the allegations in writing so that she could obtain the assistance of her union representative. On September 17, 1998, Mr. Dugan addressed a memorandum to Ms. Elliott that set forth the following allegations: Mrs. Elliott approached three teachers at Cocoa Beach High School requesting a grade change for student [S.H.]. Mrs. Elliott did flag six grades for [S.H.] so they would not count on her gpa at approximately 6:00 p.m. on 8/27/98 and 8/28/98. Mrs. Elliott did change three grades for [S.H.] on 8/27/98 and 8/28/98. Mrs. Elliott did flag one grade for [student M.P.] so it did not count on her gpa on 8/27/98. I am requesting that you provide me with a written response to these allegations by 9:00 a.m. Monday, September 21, 1998. Also on September 17, 1998, prior to receiving any substantive response from Ms. Elliott, Mr. Dugan wrote a memorandum to Leroy Berry, the District's assistant superintendent for human resources. The memorandum stated that Mr. Dugan had completed his investigation and concluded that Ms. Elliott had in fact committed the acts described as "allegations" in his memorandum to her. Mr. Dugan further wrote that Ms. Elliott's failure to respond to the substance of his allegations within the 24-hour deadline he had given her on September 15, along with the documentation he received from Ms. Vann, led him to conclude that Ms. Elliott had changed and flagged the grades of S.H. and M.P. with the intent of making them eligible for the cheerleading squad. On September 21, 1998, Ms. Elliott gave Mr. Dugan her written response to each of the allegations: I had telephone conversations with three teachers from Cocoa Beach High School (CBHS) and explained that we had put [S.H.] on a contract—- a procedure that we use at Merritt Island High School (MIHS) for students with Failed/Attendances (FAs). I asked them if they would be willing to change the grades pending administrative approval if she followed through with the contract; she attended every day of summer school at CBHS and passed the classes. Two of the teachers said she was a good student, and they would be willing to help her. One teacher said there were no appeals processes or contracts at CBHS. I flagged courses she repeated in summer school, courses that were FAs, and courses in which she was presently enrolled. After practice on 27 and 28 August, at approximately 6 pm, [S.H.] came down to my office for counseling regarding her grades. I explained to her the effort she needed to apply to her studies, using the computer to demonstrate by making changes to letter grades. I never intended the grades to be changed permanently, evidenced by the fact that I never changed the Quality Points. Both changes are required for permanent grade changes. I did not know enough about the TERMS Program to realize that those changes I did make in demonstration to [S.H.] would be automatically saved when I exited the program. [M.P.] made up both of the courses in question in summer school and achieved the necessary grade to be eligible [for cheerleading]. On September 22, 1998, Mr. Dugan addressed to Mr. Berry a detailed memorandum in response to Ms. Elliott's memorandum of September 21. In his memorandum, Mr. Dugan stated that the contract procedure described by Ms. Elliott had never been used at Merritt Island, though he conceded that the principal might enter a contract to change the grade of a student "when faced with parental pressure on a questionable situation or to motivate a student in attendance trouble during that semester...." Mr. Dugan also noted that, according to Ms. Vann, no teacher at Cocoa Beach gave approval for a grade change. Mr. Dugan wrote that S.H. repeated only one class in summer school, that it was a class S.H. had already passed with a "B," that her grade for the course for summer school was also a "B," and that Ms. Elliott had improperly counted both "Bs" in the same course toward S.H.'s eligibility to participate in cheerleading. Mr. Dugan wrote that Ms. Elliott's flagging of S.H.'s grades of FA were both unauthorized and untimely, as was the flagging of M.P.'s grade for Algebra I. Finally, Mr. Dugan questioned Ms. Elliott's claim of ignorance as to entering grades on the TERMS system: "[A]ll counselors know anytime you change a grade on TERMS and hit enter, the screen automatically tells you the information has been taken and the record has been updated." On October 8, 1998, Mr. Dugan outlined a new allegation in a memorandum to Mr. Berry. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to access the TERMS system, in contravention of Mr. Dugan's order of September 15, 1998. At some point in early October 1998, the District suspended Ms. Elliott with pay, pending the results of the investigation. On October 26, 1998, Ms. Elliott received an official letter of reprimand stating as follows, in relevant part: This is an official letter of reprimand for your violations of School Board Policies 6Gx5-4.04 Access to Student Records, and 6Gx5-7.01(8) Compliance with Policies Required, the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.006, [Florida Administrative Code] (3)(d); (4)(a)(b)[sic]; and (5)(a) and two instances of gross insubordination to administrative directions. Not only did you request a teacher at Cocoa Beach Junior/Senior High School to change students' failing grades, you blatantly ignored my specific instructions on two occasions and changed failing grades and/or course flags of two students thereby raising their expectations to become eligible for participating on the Merritt Island High School cheerleading squad. Your access to TERMS was removed yet you deliberately went into the program utilizing another colleague's password. This letter serves to officially notify you that you no longer will be able to have access to TERMS. As of today, October 26, 1998, your suspension with pay has been rescinded by the Superintendent and you are being reassigned to the Abeyance Center, Cogswell site, effective tomorrow, Tuesday, October 27, 1998. You are to report to Kim Armellini, assistant principal, at 8:00 A.M. As you are removing your personal items on October 26, 1998, there remains no further reason for your continued presence on the Merritt Island High School campus. In early 1999, the District decided to terminate Ms. Elliott's employment. Ms. Elliott challenged that decision in DOAH Case No. 99-0207. The case was settled in November 1999, prior to hearing. Ms. Elliott voluntarily resigned her position with the District as part of the settlement. The investigation into Ms. Elliott's grade changes and flags continued even after she was removed from the Merritt Island campus and ultimately left the employ of the District. As noted above, Ms. Young's compilation of computer records relating to flags entered by Ms. Elliott continued through approximately December 1998. In October 1998, Marjorie Ebersbach took over as area superintendent and asked Mr. Dugan to bring her up to speed on any matters of concern at Merritt Island. Mr. Dugan briefed her on the Elliott investigation, and Ms. Ebersbach began her own investigation of the matter. During her personal investigation, Ms. Ebersbach met with Principal Dugan, Ms. Young, and Assistant Principal Halbuer. She also reviewed student records and concluded that Ms. Elliott had improperly flagged and changed student records. Mr. Dugan also continued his personal review of student records allegedly altered by Ms. Elliott, and finally concluded that "the evidence on file indicates Ms. Elliott continually violated . . . accepted ethical practices and she [should] be terminated." Ms. Halbuer, the assistant principal, also continued her investigation. She pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. A number of these students with altered records had already graduated. Memoranda by Ms. Halbuer outlining fresh allegations against Ms. Elliott appeared as late as February 15, 1999. Based on her personal review of the student records, Ms. Halbuer concluded that Ms. Elliott "flagged on a wide scale throughout all of her senior students, and also that some students had actual classes, based on their transcripts, that they never took, and that some students received diplomas that probably should not have received diplomas." The Evidence This section deals with the charges against Ms. Elliott for which the Department was able to produce evidence sufficient to establish a prima facie case of wrongdoing by Ms. Elliott. As will be discussed below, the passage of time and the routine destruction of records meant that the Department was unable to make a prima facie case regarding several students as to whom Ms. Halbuer's accusatory memoranda were unsupported by the documents on which she relied. Student S.H. Student S.H., an African-American female, attended ninth grade at Cocoa Beach in the 1997-98 school year. S.H. was a talented cheerleader but, by her own and her mother's testimony, she was going through a rebellious period. She fell in with the "wrong crowd" and began a pattern of skipping classes with her friends. Because of her truancy, S.H. received grades of FA in four of her ninth grade classes, including classes taught by Michael Gaudy, Michael Drake, and Mary Jane Binney. Cocoa Beach allowed students who had received a grade of FA to appeal that grade, but maintained a strict prohibition against appeals by students whose FA grades were due to skipping school. Ms. Vann, the Cocoa Beach principal, had evidence in her records that S.H. had skipped school, including records from teachers, phone calls to her parents, and referrals of S.H. to the dean’s office for truancy. Ms. Vann documented at least fourteen dates on which a teacher or administrator from Cocoa Beach contacted or attempted to contact S.H.'s parents regarding truancy, absences, grades, and leaving class. At the end of her ninth grade year at Cocoa Beach, S.H. had a GPA of 1.333, well below the 2.0 GPA required for participation in cheerleading. S.H. cheered on an independent, competitive "all star" team which included several members of the Merritt Island cheerleading squad. With the encouragement of some Merritt Island cheerleaders, S.H. approached Ms. Elliott in April 1998 about coming to Merritt Island and cheering for its team. Merritt Island was the school for which S.H. was actually zoned. She had attended Cocoa Beach because her older brother went there, but he graduated in Spring 1998. S.H. and her mother, M.H., wanted S.H. to transfer to Merritt Island. M.H. believed that Merritt Island would provide S.H. with a fresh start to her high school career away from the people with whom she'd been in trouble at Cocoa Beach. M.H. also believed that the larger African-American student population at Merritt Island would be positive for S.H. socially and academically. S.H. learned of the FA appeal process from one of the friends who had skipped school with her. This friend said that she had successfully appealed her FAs through Ms. Vann. However, when S.H. went to the Cocoa Beach office and attempted to file an appeal, her efforts were rejected as untimely. Because S.H.'s friend was white, S.H. and her mother suspected there was some racial motive in the rejection of her appeal. The evidence presented at hearing did not demonstrate that S.H.'s appeal was denied for any reason other than it was untimely. Ms. Elliott's initial reaction to hearing S.H.'s allegation of racial discrimination was to tell S.H. that there was nothing she could do. She advised S.H. to handle the problem herself, with her mother's assistance. However, M.H. subsequently told Ms. Elliott that she could not deal with the personnel at Cocoa Beach. Ms. Elliott offered to help collect information that the parent could present to the administration at Cocoa Beach to appeal the FA's. Ms. Elliott believed that Mr. Dugan might help and even intercede directly with the administration at Cocoa Beach, because Merritt Island was more lenient about granting FA appeals and because Mr. Dugan had helped her before with similar problems. Ms. Elliott was aware of several successful FA appeals at Merritt Island involving students who had more absences than S.H. Ms. Elliott also testified that Mr. Dugan had always been supportive of the cheerleading squad. Ms. Elliott advised S.H. that she would have to show "massive improvement" in her school work and spent time with S.H. to work on improving her grades. Ms. Elliott reviewed S.H.'s complete cumulative academic folder, counseled her on the racial issues she had raised, advised her on appealing the FAs, encouraged her to go to summer school, spent time with her after-hours, and placed her on the aforementioned "contract." The contract, signed on May 4, 1998, by Ms. Elliott, S.H., and M.H., stated: I, [S.H.], will attend summer school everyday [sic] during summer I and II to repeat courses I failed during my ninth grade year at Cocoa Beach High School in an effort to show my true capabilities and academic potential. In my efforts I realize that I can "audit" (x) or have my FA's changed from semester I at Cocoa Beach High School with the cooperation of my teachers from Cocoa Beach High School and/or administration from Merritt Island High School. I also realize that if I earn a D or an F during any term, as a Varsity Cheerleader at Merritt Island High School I will be on academic probation and will be required to work with a tutor one day a week. At the hearing, Mr. Dugan testified that one of his chief objections to the contract with S.H. was that Ms. Elliott did not obtain his approval. He stated that only the principal or his designee could enter into such a contract with a student. Mr. Dugan further stated: But in all of these cases, the contract would have to have the student right the wrong, whatever it was that they had done, okay? For example, you may give a student who's... passed mathematics with a C but failed it through excessive [absences]. You might write a contract with that student that if you don't miss any more than three days the next semester I would remove the FA because you've shown the fact that you can attend and will attend on time. Mr. Dugan found Ms. Elliott's contract with S.H. "totally illegal" because at the time the contract was executed, S.H. was not a student at Merritt Island. Further, Ms. Elliott was holding out the possibility of changing S.H.'s Cocoa Beach FAs with no real way of knowing whether it could be done. Ms. Elliott advised S.H. that she was ineligible for cheerleading upon her transfer in August 1998, and could not cheer until she became academically eligible. S.H. took two classes every day over her summer break. She received an "A" in one class, and a "B" in the other, with no absences. Ms. Elliott testified that in August 1998 she phoned three of S.H.'s teachers at Cocoa Beach, not to ask them to change S.H.'s FA grades in their classes, but to obtain information about S.H’s performance in their classes and to inform them of the assistance she was giving S.H. Ms. Elliott testified that one reason she called the teachers was to verify what S.H. was saying about her performance at Cocoa Beach. Ms. Elliott asked the teachers how often and why S.H. was absent from their classes, what grades S.H. would have earned but for the excessive absences, and whether she had brought an appeal of the FAs to any of them. Ms. Elliott conceded that her September 21, 1998, written response to Mr. Dugan's allegations included the statement: "I asked them if they would be willing to change the grades pending administrative approval if [S.H.] followed through with the contract." Ms. Elliott testified that this was in the nature of a shorthand response to Mr. Dugan's inquiry, and reiterated that she never directly asked the Cocoa Beach teachers to change S.H.'s grades. Ms. Elliott testified that she would have crafted her written response with more care had she understood the gravity of her situation. All three of the Cocoa Beach teachers contacted by Ms. Elliott testified at hearing. Each teacher verified that he or she was telephoned by Ms. Elliott, and that Ms. Elliott did not ask him or her to change the FA grade given to S.H. None of the three teachers recalled S.H.'s requesting an appeal of her FAs. Mike Drake taught ninth grade World Geography to S.H. during the 1997-98 school year and gave her an FA for more than nine unexcused absences. He stated that S.H. would likely have made a high "B" in his class but for the absences. Mr. Drake recalled that another teacher had circulated an e-mail throughout Cocoa Beach regarding the fact that S.H. had skipped school and that S.H.'s mother had been contacted concerning the absences. Mr. Drake confirmed that Ms. Elliott did not ask him to change S.H.'s grade. He stated that his interpretation of Ms. Elliott's purpose in calling was "gathering information." Mary Jane Binney, who taught Life Management to S.H. during the 1997-98 school year, testified that S.H. would have made a "C" in her class but for the absences. Ms. Binney testified that Ms. Elliott told her that she was helping S.H., and that Ms. Elliott "absolutely" did not ask her to change S.H.'s grade. Mike Gaudy, the athletic director at Cocoa Beach, had taught Weight Training to S.H., though he had no recollection of S.H. or of the grade she would have received but for her excessive absences. Mr. Gaudy thought it was "peculiar" that Ms. Elliott would contact him about a student who no longer attended Cocoa Beach. He was the teacher who reported his conversation with Ms. Elliott to his principal, Ms. Vann, who had him write a statement concerning his conversation with Ms. Elliott. Mr. Gaudy's written statement strongly implied that Ms. Elliott's purpose in calling was to persuade him to change S.H.'s grade. At the hearing, Mr. Gaudy testified that Ms. Elliott in fact never asked him to change a grade. The subject of grade changes came up only because Mr. Gaudy asked Ms. Elliott if that was her purpose in calling. In summary, no evidence was presented that Ms. Elliott at any time "improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification." Ms. Elliott was attempting to work out some form of grade forgiveness for S.H., contingent upon her improved performance in summer school and beyond, but there is no indication that she did anything "improper" aside from failing to involve Mr. Dugan in her efforts. At worst, Ms. Elliott failed to understand that Cocoa Beach's policy concerning FAs was more unyielding than the policy at Merritt Island, and that suspicions would therefore be aroused at Cocoa Beach when she began making inquiries about S.H.'s grades. The next phase of the narrative requires a digression on the working of TERMS. As noted above, TERMS was introduced to the District in Spring 1998. Training of District personnel on the use of TERMS began in February 1998. Ms. Elliott attended the first introductory course in February, and there learned that the entire District would immediately begin using TERMS for student scheduling. The training was to include a preview of the different "screens" on TERMS, including the scheduling screen and the attendance screen. Each type of screen required separate training. More than one hundred trainees attended the course with Ms. Elliott. They were provided no hands-on training; rather, they viewed a simulation of the TERMS program on an overhead projector and heard descriptions of the program's capabilities. One working TERMS terminal was set up to demonstrate its functionality, but the program constantly malfunctioned. Ms. Elliott testified that District personnel were skeptical about TERMS because they had heard about severe problems experienced in another large county, where the program was unable even to print transcripts. She testified that the malfunctions of the program at this introductory course intensified the general apprehension about TERMS. Ms. Elliott was not the only witness to discuss the problems with TERMS. Mr. Dugan testified that "there was an awful lot of frustration not only with my staff but with myself and all the other principals. Getting on the new system was a frustrating experience for all of us." Ms. Vann found the TERMS program "a lot more complex" than IRMA, "difficult" enough that she created her own training handbook that was ultimately circulated to all principals in the District. Mr. Dugan testified that TERMS was a "difficult program," and that it was "probably unfair" to expect the guidance counselors to use it for scheduling without adequate training. Ms. Elliott never received hands-on training on the scheduling screen. She learned on the job by scheduling students into their classes with the help of a "cheat sheet" prepared by a fellow guidance counselor who attended a later TERMS training session. She scheduled students for their Fall 1998 semester classes, asking for help when she made a mistake. Ms. Elliott received no training on the "academic history" screen, which was the screen used to enter grade changes or flags on a student's record. Ms. Elliott repeatedly requested hands-on training, but never received it. She tried to learn the program by watching what the other counselors did. Ms. Elliott testified that she had learned through "gossip of the counselors" that the TERMS program could be used as a counseling tool. She was told that it had the capability to allow a counselor to sit with a student and run hypothetical, "what if" scenarios regarding how the student's GPA could be improved or lowered depending on the grade received in a particular class or classes. Ms. Elliott was excited by this possibility, because the only way a counselor currently had to play such "what if" games was pencil and paper calculation, which was time consuming and subject to error. She believed that seeing the possible GPA improvement pop up immediately on a computer screen would be more likely to inspire the student to earn those grades, and she looked forward to using this tool with her counseling students. In fact, the TERMS program has no such "what if" capability, though systems analyst Andrea Young testified that it would be possible to write a program to give TERMS that capability. Ms. Young also testified that TERMS automatically saved any grade changes entered, without giving the user any opportunity, in the form of a "save" warning or otherwise, to rescind a grade entry. On the evening of August 27, 1998, after cheerleading practice, Ms. Elliott sat down in her office with S.H. to review her summer school grades on the "academic history" screen of the TERMS program. At this point, Ms. Elliott had seldom if ever attempted to manipulate data on the academic history screen. She had never changed letter grades, though she had entered flags for repeated courses. Ms. Elliott attempted to show S.H. what her GPA would be after her summer school grades were posted, and what it would be if S.H. were able to obtain the letter grades she would have received in the three classes at Cocoa Beach but for her excessive absences. Ms. Elliott entered the grades, but noticed that the grade changes resulted in no change in S.H.'s quality points or overall GPA on the TERMS screen. Ms. Elliott was perplexed. She knew from experience that flagging the grades would change the GPA, so she entered flags next to each grade. Flagging the grades did change the GPA, and enabled her to counsel S.H. Ms. Elliott testified that her only intention was to motivate S.H., to show her what would happen if she could successfully appeal the FAs from Cocoa Beach. She told S.H. that she would not likely raise her GPA sufficiently to be eligible for cheerleading in her first semester at Merritt Island, but that it would be possible to attain eligibility in her second semester. S.H. testified at the hearing, and completely corroborated Ms. Elliott's version of events. She confirmed that Ms. Elliott told her she was not eligible to cheer for Merritt Island. S.H. testified that her main concern at the time was to get away from Cocoa Beach, not to cheer for Merritt Island. She was already cheering for an elite competitive team away from school. S.H. testified that she began to cheer for Merritt Island during the second semester of her tenth grade year. Ms. Elliott testified that when she used the old IRMA system, the screen would clear upon signing off. IRMA required an affirmative keystroke to make grade changes permanent. Ms. Elliott did not realize until the evening of August 27, 1998, that TERMS made the changes automatically. Ms. Elliott returned to S.H.'s record in the TERMS program the next evening, August 28, 1998. Ms. Elliott testified that she was determined to figure out how to make grade changes on the TERMS program, and how to correct the erroneous grade changes and flags she had entered the previous evening. She had no better luck on the second night. Ms. Elliott testified that she never intended to make permanent changes in S.H.'s records. She expected to change the grades back to their correct status when she received S.H.'s cumulative folder from Cocoa Beach. She never made the corrections because the investigation commenced and she was barred from using TERMS before she had an opportunity to do so. The only evidence that Ms. Elliott altered S.H.'s records in order to make her eligible for cheerleading came from Mr. Dugan, who testified that S.H. cheered for Merritt Island at a Spring 1998 football jamboree before she was even a student at Merritt Island. Mr. Dugan also testified that he had "personal knowledge" that S.H. cheered for Merritt Island at the first three football games in Fall 1998, though he did not elaborate on the nature of this personal knowledge.3 He testified that he would have believed Ms. Elliott's story about playing "what if" games on the TERMS program, had she not placed S.H. on the cheerleading squad. Ms. Elliott, S.H., and M.H. testified that they all understood S.H. was not eligible to cheer during the Fall semester of 1998. S.H. testified that she was allowed to practice with the team, and was allowed to wear the uniform to games but was not allowed to cheer with the team. The last point accounts for the contradiction between Mr. Dugan's testimony and that of Ms. Elliott and S.H. Mr. Dugan testified that a cheerleader who did not have a 2.0 GPA could work out and practice with the team, but was not permitted to wear the uniform or cheer at school activities. Ms. Halbuer, the assistant principal at Merritt Island and a former junior varsity cheerleading coach, confirmed Mr. Dugan's statement that an ineligible cheerleader cannot wear the uniform. According to her own testimony, S.H. was allowed to wear the cheerleader uniform to games before she was eligible. The weight of the testimony establishes that Ms. Elliott should not have allowed S.H. to wear the uniform. However, despite Mr. Dugan's testimony, the evidence is persuasive that Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of 1998, and that S.H. did not actually cheer with the team at any games prior to becoming eligible in the Spring semester of 1999. Ms. Elliott's testimony as to how S.H.'s grades came to be changed and flagged is persuasive and credited. Ms. Elliott was negligent in failing to take steps immediately to correct S.H.'s grades. Rather than waiting for S.H.'s cumulative file to come over from Cocoa Beach, Ms. Elliott should have approached her superiors at the first opportunity to explain what happened and obtain assistance in correcting the record. However, the evidence presented at the hearing did not demonstrate that Ms. Elliott intentionally altered S.H.'s grades to make her eligible to cheer for Merritt Island. Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of the 1998-99 school year. Student M.P. Student M.P., a white female, attended ninth grade at Jefferson Junior High School ("Jefferson") in the 1997-98 school year. She transferred to Merritt Island to begin tenth grade in Fall 1998. M.P. was a cheerleader, and attended summer cheerleading camp with Ms. Elliott during the summer of 1998. In the ninth grade at Jefferson, M.P. took Algebra I during her first semester and received an "F." She was placed in Applied Math I for the second semester of ninth grade and received a "D." Two semesters of Applied Math I are considered the equivalent of one semester of Algebra I. At the end of ninth grade, M.P. was advised by her counselor at Jefferson that she should repeat Algebra I during the 1998 summer session. She applied to take Algebra I, but was told that it was not available. Therefore, she signed up for two semesters of Applied Math I. M.P. earned a "C" for the first semester and an "A" for the second semester of Applied Math I during summer school. On August 27, 1998, Ms. Elliott entered flags for M.P.'s ninth grade "F" in Algebra I and "D" in Applied Math I, meaning her grades in those courses would not count toward M.P.'s GPA. Ms. Elliott's logic was that, because Applied Math I is considered an equivalent course to Algebra I, M.P.'s two semesters of Applied Math I in summer school could replace her two semesters of Algebra I and Applied Math I in the ninth grade. The two flags entered by Ms. Elliott made M.P. eligible to cheer during the 1998 fall semester at Merritt Island. Believing M.P. to be eligible, Ms. Elliott permitted M.P. to cheer at three Merritt Island football games in August and September 1998. During his September 1998 investigation of Ms. Elliott, Mr. Dugan discovered the flag for Algebra I on M.P.'s records. Noting that M.P. had never retaken Algebra I, and declaring that a flag was appropriate only where a student has retaken the identical course, Mr. Dugan ordered the flag removed. With the "F" in Algebra I returned to the calculation, M.P.'s GPA fell below 2.0. Mr. Dugan ordered M.P. removed from the cheerleading team in late September 1998. He had a meeting with M.P.'s parents at which he told them that "something was going on," that grades had been changed that should not have been changed, and that M.P. was no longer eligible to cheer for Merritt Island. M.P.'s parents approached Ms. Elliott to find out what happened. Ms. Elliott did not believe that Mr. Dugan's insistence that only identical courses were eligible for flagging was consistent with Florida Department of Education policy. She telephoned Sharon Koon, her contact at the Department of Education, who verified that Algebra and Applied Math are viewed as equivalent and that the "F" in Algebra I could be flagged because M.P. took two semesters of Applied Math I during summer school. On October 8, 1998, M.P.'s parents returned to Mr. Dugan to inform him of Ms. Elliott's findings. Mr. Dugan was upset that Ms. Elliott had discussed the matter with M.P.'s parents before talking to him about the matter. He nonetheless consulted Daniel Scheuerer, the District's assistant superintendent for academics, who informed him that the two semesters of Applied Math I could indeed substitute for Algebra I. Therefore, Ms. Elliott's flag of M.P.'s "F" grade in Algebra I had been correct. However, Mr. Scheuerer also noted that if both semesters of Applied Math I were used to forgive M.P.'s grade in Algebra I, then there was nothing that could be used to forgive M.P.'s "D" grade in Applied Math I for the second semester of ninth grade. Thus, Ms. Elliott's flag of the "D" grade for Applied Math I would have to be removed even as the flag for M.P.'s "F" in Algebra I was reinstated. The end result was that M.P. remained ineligible for cheerleading. The evidence regarding M.P. establishes no more than a good faith misunderstanding regarding equivalent courses by Ms. Elliott. It was apparent that Mr. Dugan himself misunderstood the application of equivalencies prior to consulting Mr. Scheuerer. There was insufficient evidence that Ms. Elliott intentionally entered improper flags for M.P. in order to make her eligible for the cheerleading squad. Improper Use of Password As noted above, Mr. Dugan's October 8, 1998, memorandum to Mr. Berry outlined a new allegation against Ms. Elliott. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to gain access to the TERMS system, in contravention of Mr. Dugan's order that Ms. Elliott was not to use TERMS while she was under investigation. It must be noted that the allegation of improper use of Ms. Peters' password was not among the factual allegations set forth in the Administrative Complaint. No objection was lodged by counsel for Ms. Elliott on this basis. Ms. Elliott was aware of this allegation and fully joined the issue at the final hearing. It is found that the pleadings of the Administrative Complaint were effectively amended to conform to the evidence. Kathleen Peters was the director of guidance at Merritt Island. She was Ms. Elliott's direct superior. On September 30, 1998, Ms. Peters called in sick with a migraine headache. She was in the midst of rearranging the schedules for Spanish classes, and had a list of changes that had to be entered on the computer that day. She phoned the guidance office and reached Ms. Elliott, who was the only guidance counselor present at Merritt Island on that day. Ms. Peters explained the situation to Ms. Elliott, and asked her to make the schedule changes and corrections. Ms. Elliott told Ms. Peters that she could not use her own code to access the TERMS program. Ms. Elliott did not tell Ms. Peters that Mr. Dugan had prohibited her from using TERMS. At the hearing, Ms. Elliott indicated that her reticence was largely due to embarrassment over the investigation of her computer use. She was unsure whether her colleagues in the guidance office knew about the investigation, and was unsure herself of the investigation's scope and how much information she should share with Ms. Peters. Ms. Elliott asked Ms. Peters for her code to the TERMS system. Ms. Peters saw nothing unusual in this request, because it was not uncommon for TERMS to deny access to some users for apparently arbitrary reasons. Ms. Peters testified that she had been denied access on occasion. Ms. Peters gave her code to Ms. Elliott. Ms. Elliott attempted to access TERMS on her own computer, using Ms. Peters' code. She was denied access. She thought that the code might work if entered on Ms. Peters' computer. However, given the allegations that had already been made against her, Ms. Elliott thought she ought not be seen going into Ms. Peters' office and trying to use Ms. Peters' computer. She decided simply to tell Ms. Peters that she had tried but could not access TERMS. Ms. Elliott testified that she did not make changes to any records using Ms. Peters access code. Her testimony on this point was confirmed by Mr. Dugan, who admitted at the hearing that a subsequent investigation revealed no records that had been accessed by Ms. Elliott by way of Ms. Peters' security code. On October 5, 1998, during a scheduling discussion, Ms. Peters learned from Ms. Halbuer that Ms. Elliott was prohibited from using the computer. Ms. Peters then reported to Ms. Halbuer that Ms. Elliott had obtained her access code on September 30. Ms. Halbuer relayed this information to Mr. Dugan, who added this incident to the list of allegations related to Ms. Elliott in his memorandum of October 9, 1998: On September 15, 1998, I informed you that you were not permitted to use TERMS until the investigation reference [sic] the allegations against you were resolved. On Wednesday September 30, 1998, Mrs. Elliott did request and receive Mrs. Peters security code and did access TERMS without requesting authorization or receiving authorization. This allegation was sustained by the evidence at least insofar as Ms. Elliott obtained Ms. Peters' code and attempted to access TERMS. Ms. Elliott's culpability is mitigated by the exigency of the situation and by the fact that she did not actually make use of Ms. Peters' security code. Nonetheless, Ms. Elliott well understood that she was prohibited from accessing TERMS. There were numerous options available to her that did not involve direct insubordination to Mr. Dugan's directive. She could have obtained the assistance of the data entry clerk. She could have approached Mr. Dugan or Ms. Halbuer with her dilemma. She could have simply leveled with Ms. Peters as to why she was unable to use her own security code. However wronged she felt by the ongoing investigation, Ms. Elliott had no authority to disregard Mr. Dugan's order. Flagging in general As noted above, the investigation of Ms. Elliott continued even after the District removed her from Merritt Island and terminated her employment. In particular, Ms. Halbuer, the assistant principal, pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. At the hearing, the Department was unable to produce the complete files of some of the students whose records Ms. Halbuer investigated, because school policy dictated destruction of her investigative records after the passage of a certain amount of time. The complete files would have contained the final, official transcripts of the students as well as Ms. Elliott's counseling notes. In some instances, the only proof offered was Ms. Halbuer's conclusory memoranda attesting that certain students' grades had been improperly flagged. In other instances, only the unofficial, editing copy of the transcripts was provided. Ms. Halbuer's honesty is not in doubt. However, it would be inherently unfair to require Ms. Elliott to mount a defense as to these students, more than four years after the fact, without access to the cumulative files and her own counseling notes to refresh her memory. Thus, it must be found that the Department failed to provide prima facie evidence as to any of the fifty-six students save those discussed below. Ms. Elliott's understanding of the flagging procedure was markedly different than that of the administrators. To reiterate, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA is referred to in the District as "flagging." The text of the Grading Procedures quoted above does not expressly provide instruction as to the proper time for entry of a course flag. However, each District witness who testified on behalf of the Department stated that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the second grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Elliott testified that she never saw the written grade forgiveness procedure until after the allegations here at issue were first lodged, when her union representative obtained a copy from the District. Ms. Elliott first learned that the District had a forgiveness policy in the early 1990s when she was being trained by Nancy Rhoda, who was then the guidance department chair. Ms. Elliott was instructed to check the students' records for courses that they repeated, and to have those courses flagged. Ms. Elliott's consistent understanding of the policy was that a course could be flagged while the student was repeating the course. Ms. Elliott was one of three guidance counselors at Merritt Island, and was responsible for scheduling approximately 500 students every semester. At times, she was assigned upwards of 700 students. Part of her duties was to schedule her students into classes they wanted to repeat pursuant to the forgiveness policy. Each semester comprised three six-week grading periods. At the close of each six-week grading period, Ms. Elliott would receive computer printouts of each of her assigned students' grades. Thus, there would be a first, second, and third six-week report of the grades her students were receiving in their respective classes. Ms. Elliott typically flagged after she had two six-week grade reports before her, thus having a relatively solid basis for anticipating that the student was going to pass the repeated course. She testified that she flagged courses only when she was convinced the student was "doing fine" in the repeated course. Ms. Elliott would compile a list of students and courses to be flagged and give it to Jan Amico, the data entry clerk, after the second six-week grading period. The flags would be entered during the thirteenth or fourteenth week of the eighteen-week semester, depending on how long it took Ms. Elliott to meet with each student and review their progress. By this time, Ms. Elliott would know whether the student was passing the repeated class. Ms. Amico, who was the data entry clerk at Merritt Island for four years, testified at the hearing. She confirmed that Ms. Elliott's method of flagging had been consistent during Ms. Amico's tenure at Merritt Island. During the first six weeks of a semester, Ms. Elliott assisted all of her assigned students with their class scheduling problems. During the second six weeks, Ms. Elliott typically had more time to review each of her students' grades via the computer printouts provided each guidance counselor. She went through the grade printouts and contacted students who were failing classes to offer academic counseling and tutoring while they still had roughly nine weeks to improve their final semester grade. While Ms. Elliott tried to meet with each student in her charge during the middle of the term, she made it a priority to meet with students who were having difficulty passing classes, those needing special attention, and those she felt might need more support from their parents. If a student received a "D" or "F" grade on the first or second six-week grading report, Ms. Elliott would counsel that student. She would also meet with the teacher to see what could be done to help the student. If needed, Ms. Elliott would arrange for tutoring by one of the volunteers she had recruited from the community. These tutors included her own husband, Joe Elliott, who tutored many students in math. At the end of the semester, Ms. Elliott would meet with her students again. They would review the student's unofficial transcript to make sure the recorded grades were correct, and make any necessary corrections. If the student received a failing grade for a repeated class, Ms. Elliott would have the flag removed from the student's record. Ms. Elliott testified that she was in constant contact with college admissions officers, who asked her to flag courses so they could determine whether their applicants were retaking failed courses. Ms. Elliott stated that the admissions officers followed the students' progress and liked to know whether students applying to their colleges were making extra efforts to master difficult materials. Ms. Elliott testified that she had followed this flagging procedure since the early 1990's, that the teachers, her direct supervisor, the school's department chairs, and the assistant principal in charge of guidance all knew her method for flagging grades, and that no one had ever told her it was inappropriate until Ms. Halbuer did so in August 1998. Ms. Elliott testified that even when Ms. Halbuer told her that she should wait until the end of the semester to flag courses, there was no implication that Ms. Elliott had been doing anything wrong. Rather, Ms. Halbuer indicated that the new data entry clerk was just learning the TERMS system and was overwhelmed with work, and so the entering of course flags would have to wait. As a general matter, it is found that Ms. Elliott's practice of entering the flags prior to the student's receiving a final grade in the repeated course was against the District's policy as generally understood by the District administrators. However, nowhere was this general understanding reduced to writing in unequivocal terms. The understanding may be inferred from the written Grading Procedure, but nothing in the procedure may fairly be read to forbid Ms. Elliott's longstanding method of flagging. To the extent that Ms. Elliott's flagging of individual student grades followed the procedure she described, i.e., the student was enrolled in the repeated class, appeared to be passing the class at the two-thirds point of the semester when the flag was entered, and Ms. Elliott corrected the record at the end of the semester, she cannot be found to have violated a clearly stated policy of the District. Mr. Dugan, Ms. Halbuer, and Ms. Ebersbach all testified that Ms. Elliott's method of flagging artificially inflated her students' GPA's and distorted their relative class standing. This concern was valid but transitory, to the extent that Ms. Elliott followed her stated procedure. A student's GPA would be inflated for the four or five weeks of the semester between the time the flags were first entered and the final grades were posted. After the grades were posted, the flag would either be validated or removed by Ms. Elliott, ensuring the accuracy of the GPA and class standing reflected on the official transcript. As noted above, the Department was not able to produce the complete files for all of the fifty-six students whose records Ms. Elliott is alleged to have improperly flagged. The students discussed below were those for whom the Department was able to produce records sufficient to establish the circumstances of the flagging and to refresh Ms. Elliott's memory as to those circumstances. As to Student B.H., Ms. Halbuer discovered that Ms. Elliott entered a course flag for B.H.'s "F" grade in Algebra I Honors for the first semester of the 1995-96 school year, despite the fact that B.H. repeated Algebra I rather than the honors course. Ms. Halbuer testified that it is improper to flag an honors course with the grade from a regular course, even where the course material is the same. Ms. Elliott conceded that she flagged the honors course based on B.H.'s successfully completing the regular Algebra I course. Her rationale was that a student must receive a teacher's recommendation to enroll in an honors course, and no teacher would have recommended B.H. to repeat Algebra I Honors after she failed it once. Also, Ms. Elliott believed it proper to enter the flag because the course work in Algebra I was the same as Algebra I Honors, the only difference being that the latter class would be smaller, have a better teacher, and involve more homework. Ms. Elliott did not consult with her superiors prior to entering this flag, which had the effect of increasing B.H.'s GPA. It is found that Ms. Elliott improperly flagged B.H.'s grade for Algebra I Honors, but that she did so in a good faith, though mistaken, belief that it was proper to do so. As to Student D.H., Ms. Halbuer testified that she personally compiled and reviewed D.H.'s student records and found that Ms. Elliott entered an improper flag for D.H.'s "D" and "C" grades in Algebra II Honors for the first and second semesters of the 1995-96 school year, though D.H. repeated regular Algebra II. As with Student B.H., D.H. was not entitled to receive grade forgiveness for the grades received in the honors course when the honors course was not retaken. It is found that Ms. Elliott improperly flagged D.H.'s grade for Algebra II Honors, but that she did so in a good faith, though mistaken belief, that it was proper to do so. As to Student L.H., Ms. Halbuer found that Ms. Elliott flagged an "F" grade L.H. received in Algebra I in the second semester of the 1995-96 school year. For this flag to have been appropriate, L.H. would have had to either repeat the second semester of Alegbra I or complete two semesters of Applied Math II. L.H. in fact completed only one semester of Applied Math II. Ms. Halbuer testified that without the two semesters of Applied Math II or a successfully completed second semester of Algebra I, L.H. did not have the requisite math requirements for graduation. L.H. nonetheless was allowed to graduate from Merritt Island in 1998 without ever taking the second semester of Applied Math II, with a transcript certified by Ms. Elliott. Ms. Elliott testified that L.H. had the three math credits required to graduate, and met the graduation requirements that were in place for the class of 1998. It is found that the Department failed to demonstrate that L.H. should not have graduated, but did demonstrate that Ms. Elliott improperly flagged L.H.'s grade for Algebra I and offered no adequate justification for having done so. As to Student J. E.-N., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed the student's records and found that Ms. Elliott entered an improper course flag for an "F" in Classical Literature and an "F" in Applied Math III, both for the first semester of the 1997-98 school year. Ms. Elliott certified J. E.-N. for graduation in 1998. Without the two flags, J. E.-N. would not have had the requisite 2.0 GPA for graduation. Ms. Elliott admitted flagging the Applied Math III grade, but stated that she did so pursuant to a precedent set by Mr. Dugan when he was an assistant principal at Merritt Island. J. E.-N. was a student with very limited proficiency in English. Ms. Elliott testified that Mr. Dugan's practice had been to apply forgiveness for math classes to such students once they had passed the high school competency test in math. J. E.-N. had passed the high school competency test. As to the flag for Classical Literature, Ms. Elliott testified that J. E.-N. took English IV in night school, and that English IV was equivalent to Classical Literature. It is found that Ms. Elliott improperly flagged J. E.-N.'s grade for Applied Math III before consulting with Mr. Dugan or some other superior to ascertain that she was applying a recognized school policy. Ms. Elliott's flag of the Classical Literature class was another example of her belief that "equivalent" courses could count as repeated courses for purposes of flagging, whereas the administrators who testified consistently held that only identical courses could be repeated for forgiveness. As to both flags for J. E.-N., it is found that Ms. Elliott entered them in a good faith, though mistaken, belief that it was proper to do so. As to Student A.L., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed A.L.'s student records and found that Ms. Elliott improperly flagged a tenth-grade Algebra II Honors course prior to A.L.'s completing the same course and receiving a higher grade, which is against their interpretation of district policy. A.L. in fact repeated Algebra II Honors and passed the course in the eleventh grade. The evidence demonstrated that Ms. Elliott flagged the course prior to A.L.'s having successfully completed the retaken course, but that she did so in the good faith belief that it was proper to do so. Student M.M. had completed ninth grade at Jefferson Middle School, then transferred to Merritt Island for tenth grade in the 1998-99 school year and participated in cheerleading. Gary Shiffrin, the principal at Jefferson Middle School, testified that M.M. returned to the middle school during the fall of her tenth grade year and asked Mr. Shiffrin if she could speak to one of her former teachers. After the teacher spoke to M.M., Mr. Shiffrin learned that M.M. had requested the opportunity to make up some work she had missed from the previous semester at Jefferson Middle School. Mr. Shiffrin denied M.M.'s request to make up work in an attempt to receive a higher grade, because "the time element had certainly passed." Because he thought M.M.'s request was "kind of unusual," Mr. Shiffrin contacted Mr. Dugan and informed him of what had taken place. Mr. Dugan investigated the matter and discovered that, on August 13, 1998, Ms. Elliott had entered course flags for two semesters of Spanish I from M.M.'s ninth grade year at Jefferson Middle School. The resulting GPA made M.M. eligible to cheer. On August 21, 1998, Ms. Halbuer pulled and reviewed the records of all of Ms. Elliott's cheerleaders. She concluded that M.M. should not have had course flags on her record. She discussed the flagging issue with Ms. Elliott, as described above. On August 24, 1998, Ms. Elliott removed the flags. Removal of the flags meant that M.M. was no longer eligible to cheer. Her parents sought over $700.00 in reimbursement of cheerleading expenses from Merritt Island as a result of this incident. In the case of M.M., the Department did not offer complete records to indicate whether the student was enrolled in the Spanish courses at the time Ms. Elliott flagged her prior grades. Ms. Elliott contended that her removal of the flags was not an admission of wrongdoing, but an indication of her willingness to accept direction from Ms. Halbuer on the issue of flagging. Without the complete records, it cannot be determined whether Ms. Elliott flagged the grades pursuant to her understanding of the flagging policy, or whether she did so without any justification at all. It is found that the evidence was insufficient to demonstrate that Ms. Elliott violated clear District policy in flagging the grades of M.M. As to Student B.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed B.M.'s student records and discovered that Ms. Elliott had improperly flagged a "D" grade in Algebra II for the second semester of the 1997-98 school year. The flag was entered on August 13, 1998, though B.M. did not enroll for the second semester of Algebra II until February 1999. On February 15, 1999, Ms. Halbuer instructed the data entry clerk to remove the flag, thus reducing B.M.'s GPA. Ms. Elliott testified that B.M. was a learning disabled student whose parents monitored his progress closely to ensure he would be eligible for college. Ms. Elliott met with B.M.'s parents in August 1998, at the start of B.M.'s senior year. The parents were aware of the availability of grade forgiveness, and wanted to make sure Ms. Elliott knew that their son would be repeating both semesters of Algebra II during the 1998-99 school year. Ms. Elliott flagged the second semester of Algebra II with the intent of monitoring B.M.'s progress throughout the year and obtaining tutoring assistance if he encountered difficulty. Ms. Elliott testified that she mistakenly neglected to flag the first semester of Algebra I. Ms. Elliott testified that the flag served to notify colleges that B.M. was repeating the entire year of Algebra II, a sign of maturity in attempting to improve his grades and master the material. Ms. Elliott testified that she did monitor B.M.'s progress until she was forced off the Merritt Island campus. It is found that Ms. Elliott's flagging of B.M.'s second semester Algebra II course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had even enrolled to repeat the class. The distortion of B.M.'s GPA would have endured, not for a few weeks as in most instances of Ms. Elliott's flags, but for the entire 1998-99 school year, had Ms. Halbuer not removed the flag. Ms. Elliott testified that B.M.'s overall GPA was not inflated because there were other repeated classes on his transcript for which he did not receive credit. Ms. Elliott may have been correct on this score, but cannot justify an improper flag by pointing to other flags that should have been but were not entered. Ms. Elliott's testimony as to her salutary reasons for entering the flag is credited, but is insufficient to justify the timing of the flag in this instance. As to Student A.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed A.M.'s student records and found that, on August 26, 1998, Ms. Elliott entered an improper course flag for A.M.'s "D" grade in Algebra I for the first semester of the 1995-96 school year. This flag was entered after Ms. Halbuer's initial August meeting with Ms. Elliott as to the proper flagging procedure. A.M. was enrolled to retake Algebra I at the time of the flag, but had only just commenced the class. A.M.'s grade in the retaken Algebra I was not posted until January 1999. It is found that Ms. Elliott's flagging of A.M.'s first semester Algebra I course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had demonstrated progress sufficient to satisfy Ms. Elliott that she would likely pass the retaken course. As to Student B.W., Ms. Ebersbach and Ms. Halbuer testified that they each personally reviewed B.W.'s student records and discovered that, on September 10, 1998, Ms. Elliott changed B.W.'s letter grade in Integrated Science from a "D" to a "B" for the first semester of the 1998-99 school year. While conceding that her computer code appeared on the grade change, Ms. Elliott flatly denied changing B.W.'s grade. B.W. was not a student assigned to Ms. Elliott, and she had no recollection of him. Her planning book for the relevant date and time indicated that she was not even in the guidance office when the grade change was made. Ms. Elliott theorized that another counselor may have made the change, using her code. Ms. Elliott's denial is credited. Her testimony throughout this proceeding was forthright and honest, even when detrimental to her own case. Aside from the S.H. situation, which she adequately explained, Ms. Elliott was accused of changing a grade only in this one instance out of fifty-six alleged violations of District policy. It is found that the Department failed to demonstrate that Ms. Elliott changed B.W.'s Integrated Science grade. Testimony was also offered as to the following students: J. McD., S. McC., P.L., M.L., S.K., K.L., and a second student with the initials D.H. In the cases of these students, the Department failed to produce records sufficient to permit Ms. Elliott to answer the charges. The Department proffered the transcripts of S.K., K.L., P.L., S. McC., and J. McD. at the hearing as Exhibits 54 through 58. These were not admitted because they had not been provided to Ms. Elliott during the pre-hearing discovery process. It is noted that the failure to provide these transcripts to Ms. Elliott prior to the hearing was not due to any negligence or misfeasance by counsel for the Department. The documents were simply unavailable to the Department before the final hearing began. E. The "vendetta" defense Evidence was presented at the hearing aimed at demonstrating that Mr. Dugan, the principal of Merritt Island, pursued these allegations against Ms. Elliott not on their merits but because he held a longstanding grudge against her. This grudge was alleged to have its origin in Ms. Elliott's testimony in the criminal trial of Doris Roberts, a former teacher charged with committing sexual acts with students at Merritt Island. At the trial, there was some conflict in the testimony as to whether Mr. Dugan, then an assistant principal, had ignored information that should have led him to investigate Ms. Roberts well before her activities were finally exposed and stopped. Ms. Elliott's testimony at the criminal trial is claimed to have contradicted Mr. Dugan's testimony on that point. Ms. Elliott claimed that every school employee whose testimony at the criminal trial contradicted that of Mr. Dugan was subjected to harassment by him, and either retired from the District or transferred away from Merritt Island. Ms. Elliott presented the testimony of two witnesses, Marvin Gaines and Doris Glenn, who Ms. Elliott alleged were victims of Mr. Dugan's vendetta. Their testimony indicated that Mr. Dugan could be a harsh administrator, could be less than straightforward in his dealings with employees, and engaged in juvenile and unprofessional name-calling when displeased with subordinates. Ms. Glenn, a retired assistant principal with 33 years of experience at Merritt Island, made it clear that Mr. Dugan tended to be arbitrary. One's relationship with Mr. Dugan "depended on what he had for breakfast." Ms. Glenn went on say, "If you were in, you were in. If you were out, buddy, you were out. I mean solid out." Ms. Glenn testified that she spent a good deal of time in Mr. Dugan's bad graces, and attributed her retirement to the harassment ensuing from her testimony in the Roberts case. Significantly, Ms. Glenn stated that she had never known Mr. Dugan to invent false charges in an effort to harm an employee. Mr. Dugan would go over the work of a disfavored employee with a fine-tooth comb. In her words, "He'd be looking for [something wrong] if you were on his out list. He would be looking for any little flake of dandruff." If Mr. Dugan "got on you," then "you'd better be strong and you'd better be ethical. You better be able to clean your plate up good because if you messed up he'd have your ass." However, Ms. Glenn did not believe that Mr. Dugan would fabricate allegations against an employee. Mr. Gaines, who had 35 years with the District including ten years at Merritt Island, also had a poor relationship with Mr. Dugan. Like Ms. Glenn, Mr. Gaines believed that Mr. Dugan had a "list" of those he disliked. Mr. Gaines described Mr. Dugan as a "very retaliatory person" and a "big liar." However, the animosity in Mr. Gaines' case appeared related less to the Roberts case than to the fact that Mr. Dugan lobbied District administrators to pass over Mr. Gaines for a promotion. In fact, Mr. Gaines described his relationship with Mr. Dugan as "all right for a while" in the immediate aftermath of the Roberts case. While Mr. Gaines believed that Mr. Dugan had lied to him concerning the promotion, he had never known Mr. Dugan to fabricate allegations of wrongdoing. In summary, there was credible evidence that Mr. Dugan was vituperative and would not hesitate to go after a subordinate against whom he held a grudge. Mr. Dugan denied any such grudge against Ms. Elliott. Aside from the investigation itself, Ms. Elliott offered no evidence that Mr. Dugan was pursuing a vendetta against her. To the contrary, she testified that Mr. Dugan had been supportive of the cheerleading team. It is also noted that Mr. Dugan did not initiate the investigation of Ms. Elliott. Ms. Halbuer and Ms. Vann separately approached him with suspicions as to Ms. Elliott's actions. When Ms. Vann discussed her allegations at the principals' meeting, Mr. Dugan was not particularly eager to pursue them. He told Ms. Vann to document her allegations in writing before he would consider them. In any event, an alleged vendetta by Mr. Dugan against Ms. Elliott would have relevance only as a motive for bringing false allegations against her. No evidence was presented that Mr. Dugan ever fabricated evidence against any employee, including Ms. Elliott. The alleged grudge may have spurred Mr. Dugan to investigate the matter more fully. However, his motive is irrelevant because his factual allegations were essentially accurate, even though the conclusions he drew from them were overstated. IV. Summary of Findings Three material allegations of fact were set forth in the Administrative Complaint. The first allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification. It is found that the Department failed to offer clear and convincing evidence that Ms. Elliott improperly attempted to persuade the three faculty members from Cocoa Beach to change the grades of Student S.H. In fact, all three of the faculty members testified that Ms. Elliott did not ask them to change the grades. The second factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent changed the grades of one or more students to a grade higher than that assigned by the instructional staff member. These changes were made without academic or other proper justification. It is found that the Department offered clear and convincing evidence that Ms. Elliott changed the grades of Student S.H. However, the evidence also demonstrated that Ms. Elliott made those changes as a demonstration to S.H. of how she could potentially raise her GPA. Ms. Elliott had no intention of effecting permanent changes to S.H.'s grades, as evidenced by the fact that Ms. Elliott and S.H. acknowledged that S.H. was not eligible for cheerleading during the Fall semester of 1998. The third factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent "flagged" grades of one or more students in such a manner that the grades would not count in the computation of the student(s) grade point average, thereby artificially and improperly raising the grade point average of the student(s). It is found that the Department offered clear and convincing evidence that Ms. Elliott improperly flagged the grades of Students L.H., B.M., and A.M. It is found that the Department did not offer evidence sufficient to demonstrate that Ms. Elliott improperly flagged the grades of Students M.M. and B.W. It is found that the Department offered clear and convincing evidence that Ms. Elliott's flagging of the grades of Students M.P., B.H., D.H., J. E.-N., and A.L. violated the District's Grading Procedures as understood by District administrators. However, it is also found that Ms. Elliott's flagging of these students' grades was consistent with her understanding of the flagging policy and with the manner in which she had flagged grades for several years. It is found that the Department offered clear and convincing evidence that Ms. Elliott obtained Ms. Peters' TERMS access code without fully disclosing the reasons why she could not use her own code, and further that she attempted to access the TERMS program after she had been expressly forbidden to do so by Mr. Dugan. It is found that the Department failed to prove by clear and convincing evidence that Ms. Elliott's motive for flagging grades was to make the subject students eligible to participate in cheerleading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(4)(b) and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3)(a) or (d), or Rule 6B-1.006(5)(h), Florida Administrative Code. It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active guidance counselor in the State of Florida. DONE AND ENTERED this 8th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2003.
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early 1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintaining a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970 litigation was commenced in Federal District Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to maintain a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain a "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year, so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School will actually rise from six percent during the 1980-81 school year to nine percent during the 1981-82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of underenrollment at Ely High School and Pompano Beach High School. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school-age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barton, Mascolo and Tripodi are each residents of the Sunflower-Heathgate section of the City of Tamarac, with children who, under the rule here in dispute, are assigned to Ely High School. Ely High School is located approximately 10-12 miles from the City of Tamarac, while the recently opened J. P. Taravella High School is approximately one and one-half to two miles away. Petitioners object to their children being assigned to Ely High School when they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners object to their children being subjected to a lengthy bus ride twice daily to and from Ely High School, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the Tamarac area in which all Petitioners' residences are located has been zoned to attend Ely High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school. In the process of adopting the rule challenged in this proceeding the Board conducted a series of public meetings which were well publicized and, as far as can be determined from the record, properly advertised in accordance with Chapter 120, Florida Statutes. Petitioners submitted no evidence to indicate either any serious insufficiency in the notice procedures utilized by the Board, or any prejudice suffered by Petitioners in this regard. Finally, prior to adopting the challenged rule, the Board prepared an economic impact statement that, on its face, addressed all the requirements of Section 120.54, Florida Statutes. Although Petitioners disagree with the conclusions contained in the statute, there is no evidence in this record to ever suggest that the methodology used or the conclusions reached in the statement are in any way inaccurate.
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear a petition, brought pursuant to section 120.56(4), Florida Statutes (2010),1/ claiming that a state university's documents concerning the process and criteria for faculty performance evaluation; documents from the university's College of Business setting out a Framework and Standards for Contract Renewal and Promotion for faculty; and documents showing the university's organization structure and delegations of authority are "agency statements" that require rule-making under the Administrative Procedure Act.
Findings Of Fact The Petitioner is a former associate professor with Florida Gulf Coast University. Florida Gulf Coast University is a member of the Florida state university system. Since November 2002, with the voter's adoption of article IX, section 7, Florida Constitution, the state university system has been overseen by a Board of Governors. Further, article IX, section 7, Florida Constitution, designated that each university, including Florida Gulf Coast University, would be managed by a local board of trustees. Thus, the Board of Governors and boards of trustees for universities derive power from the Florida Constitution, not legislative enactment. The Board of Governors enacted Regulation 1.001 that established power and duties for university boards of trustees. Among the Board of Governors' powers and duties delegated to the universities' board of trustees is the authority to manage university personnel and faculty. Dr. Hudson Rogers (Dr. Rogers), an associate provost with the University, testified that the University faculty are organized and represented by the United Faculty of Florida (UFF). The University and UFF are parties to a Collective Bargaining Agreement.2/ The Collective Bargaining Agreement between the Florida Gulf Coast University Board of Trustees and UFF addresses the evaluation of faculty members. Under Article 10 of the Collective Bargaining Agreement, each college within the University is empowered to develop its faculty evaluation procedures and forms consistent with the criteria agreed upon in the Collective Bargaining Agreement. The colleges' promulgation and implementation of their respective evaluation frameworks are not subject to any special process other than that outlined in the Collective Bargaining Agreement. The University's College of Business developed its own evaluation framework for faculty evaluation, which was consistent with the Collective Bargaining Agreement. Further, Dr. Rogers credibly explained that the University faculty voted on and approved the Faculty Performance and Evaluation Document in 2003 that is used to evaluate faculty. In September 2008, the Petitioner signed a Professional Development Plan that included a performance improvement plan. The performance improvement plan identified objectives that the University expected the Petitioner to meet regarding her job duties. In August 2009, after completing a probationary period of the 2008-2009 academic year, the Petitioner was evaluated by her department chair. The department chair rated the Petitioner as not meeting expectations by failing to publish at least one journal article by the end of the 2008-2009 academic year to meet the College of Business scholarship standards. Based on the Petitioner's failure to publish, the department chair recommended that the Petitioner not be reappointed after the 2009-2010 academic year. A peer review committee for the University's College of Business also determined the Petitioner had failed to meet the minimum requirements. The peer review committee informed the Petitioner of its decision on September 12, 2009. On October 21, 2009, the Petitioner filed a grievance pursuant to the Collective Bargaining Agreement. A review of the Petitioner's grievance shows that it alleged numerous violations of the Collective Bargaining Agreement concerning her faculty evaluation and decision not to re-appoint her as an associate professor. On October 22, 2009, the dean for the College of Business informed the Petitioner that "[a]fter reviewing your request and all documents provided me by you and the Peer Review Committee, my decision is that your contract will not be renewed." On November 20, 2009, the University representative, who reviewed the grievance, found that a majority of the claims were time barred or did not constitute a violation. The University representative found "a partial violation of [Collective Bargaining Agreement] Article 10.3A(1)" for failing to timely finalize the Petitioner's annual evaluation for the 2008-2009 academic year. The University representative noted that the Collective Bargaining Agreement did not "indicate any action to be taken in response to this violation." On December 10, 2009, the Petitioner filed a Request for Arbitration under the Collective Bargaining Agreement. On February 23, 2010, the University received the Petitioner's Notice of Intent to Arbitrate. On April 12, 2010, an arbitration hearing was held on the Petitioner's grievance. The arbitrator held that the Petitioner's Notice of Intent to Arbitrate was not timely under the Collective Bargaining Agreement; thus, it was considered withdrawn. On September 22, 2010, the Petitioner's supervisor, Dr. Robert O'Neill (Dr. O'Neill), wrote the Petitioner, confirming that her last date of employment at the University was December 17, 2010. The Petitioner's last day of employment with the University was December 17, 2010. On February 14, 2011, the Petitioner filed the Petition. The Petitioner alleged that the University is an "agency" within the definition of chapter 120 and is subject to the Administrative Procedure Act. Further, the Petitioner alleged that the University has made the following agency statements that are unadopted rules: (1) the Faculty Performance Evaluation Document for 2003 and 2008; (2) College of Business Framework and Standards for Contract Renewal and Promotion adopted on April 14, 2006, and revised on February 5, 2010 ("Framework"); (3) Delegation of Authority Memorandum accessed on October 7, 2010, from the University's web-site; and (4) Florida Gulf Coast University's organizational chart. The Petitioner also alleged that her substantial interests are affected "because her employment has been terminated based on several unadopted rules involving published documents from the [Florida Gulf Coast University] President, to the Provost, to the College." Further, a reading of the Petitioner's challenge here shows that she alleged that the University failed to the follow the "unadopted rules" when it evaluated her and decided not to re-appoint her to a teaching position. For example, the Petitioner claimed that the Florida Gulf Coast University Faculty Performance and Evaluation document is an agency statement that was not adopted as a rule under chapter 120. Next, the Petitioner alleged that Dr. O'Neill, who was her supervisor, failed to follow this Faculty Performance and Evaluation document when he evaluated her.
Findings Of Fact Respondent has taught in the State of Florida for 33 years. The last 26 of those years have been with the Dade County school system. His most recent assignment was at Coral Gables Senior High School as a Cooperative Education teacher. Part of the duties of a Cooperative Education teacher is to work two weeks each summer doing preplanning activities prior to the opening of the fall term. The two weeks are to be used for job development, developing training plans, getting training agreements signed by employers, visiting parents of students that will be in the program in, the fall, recruiting, and reviewing student files. One week is required to occur just prior to the opening of school in the fall. The second week can be taken at any time during the summer after summer school starts on July 5. During the summers of 1978, 1979, 1980 and 1981, Respondent had a summer job with the City of Miami as director of the lunch program in the City's parks. In that job, he supervised four monitors employed by the lunch program, who visited the parks and reported back to Respondent. Respondent also visited the parks to ensure that the lunch program operated efficiently, and he was responsible for much of the paperwork involved in the program, including tally reports. During each of the summers in question, the lunch program for the City of Miami ran for eight weeks. Although the Recreation Department of The City of Miami requires that its administrative offices be open during the normal working hours of 8:00 a.m. until 5:00 p.m., the same schedule was not required of persons working in the lunch program. The monitors working in the lunch program were part-time employees for the reason that the caterer commenced delivering lunches to the various parks at approximately 10:30 a.m. The anticipated schedule was that lunches would be served to the children involved in the program between noon and, hopefully, 1:00 p.m. but by 2:00 p.m. at the latest. Although there were more parks involved in the program than monitors, each park had its own supervisors overseeing operation within the park. If a problem arose regarding delivery of the lunches or during the serving of the lunches and neither Respondent nor any of the monitors were on site, the park's employees could temporarily resolve the problem and call the office at the City of Miami to advise of the need for any further assistance. During most of his eight-week employment with the City of Miami, Respondent worked normal hours involved in a 40-hour work week. However, during the summers of 1978, 1979, 1980 and 1981, two weeks of the City's lunch program involved the same two weeks when Respondent was employed by the School Board for his preplanning activities. The two-week periods (actually ten working days) when Respondent was on the payrolls of both the School Board of Dade County and the City of Miami were as follows: August 7-18, 1978; August 6-17, 1979; July 28-August 8, 1980; and August 10-21, 1981. Respondent was hired each of the summers involved by Basha Schlazer, the Recreation Program Supervisor for the City of Miami. Prior to Respondent's acceptance of the summer job each year, he advised Schlazer that he had a two- week preplanning period which would overlap the City's employment, during which time he would be a full-time employee of the School Board and he would have to work at Coral Gables Senior High School before he could undertake his duties at the City of Miami. Schlazer told Respondent not to worry about it, since his duties with the City could be worked around his duties with the School Board. Because his employment at the City of Miami would not interfere with his work hours at Coral Gables Senior High School during those two weeks inn question each year, Respondent accepted the position with the City of Miami. Schlazer was Respondent's immediate supervisor during his employment with the City of Miami. During the two-week employment overlap period each summer, Respondent went to Coral Gables Senior High School at approximately 7:30 to 8:00 a.m. He worked there each day completing the activities previously planned for in the plans completed by him, as required of all teachers prior to their summer employment. He completed all of the activities listed in his daily plans and left Coral Gables Senior High-School at approximately 1:30 p.m. each day. He then went to his job at the City of Miami, arriving there at approximately 2:00 to 2:30 p.m. He then worked at the City of Miami until approximately 5:00 p.m. He took home with him the paperwork he did not complete at his job with the City and completed that paperwork during the evenings and on weekends. The hours during which Respondent worked at home were supplemented, at Schlazer's request, by Respondent working on other activities involving the City of Miami, such as working at talent shows, dog shows and a hula-hoop contest, all during the evening or weekend hours. Respondent was not compensated for these extra activities, but rather, at Schlazer's direction, he continued to simply fill out payroll sheets so they reflected that he continued to work eight hours a day during those two weeks in question each year. By devoting his own time to his duties at the City during the two weeks in question each year, Respondent continued to enjoy his reputation at the City as a good worker, and the park lunch program ran smoothly at all times under his direction. The only difference which occurred in The lunch program during the two weeks of overlap is that during that time the park employees and monitors were instructed not to call in if there were a problem until after 2:00 p.m., when Respondent came to work. During each of The two weeks of each of the four summers in question, Respondent was never at the City of Miami in the mornings except on one occasion during the summer of 1981. On that day, Respondent worked at Coral Gables Senior High School until 11:00 a.m., when he was entitled to a break. During that break, he drove to the City of Miami to drop off a report that he had completed at home the night before. As he was leaving the City of Miami office to return to Coral Gables Senior High School, he received a telephone call from his department chairman at the school telling him that his principal wished to speak with him. During the regular school year, Respondent is not expected to be at Coral Gables Senior High School throughout the normal teaching day because of the nature of his teaching position. Rather, he is expected to be off the campus canvassing to find prospective employers, visiting parents, following up on job leads and otherwise doing the normal activities expected of a teacher in the Cooperative Education program. Although the contract between the School Board and the teachers' union specifies that the contractual workday for teachers in senior high schools is 7 hours and 20 minutes long, commencing at 7:30 a.m. and ending at 2:40 p.m., That was not necessarily Respondent's workday normally, since his job took him off the school site. Respondent believed that the work hours required during The two-week preplanning period were more lenient, and no evidence was introduced that Respondent had ever been advised of the specific time frame contained within the union's contract with the School Board. The School Board utilizes a form entitled "Voucher for In-County Travel Reimbursement and Monthly Visitation Report for Vocational Cooperative Teachers." Although Cooperative Education teachers are required to provide such forms for travel reimbursement regarding mileage and have been so advised during various monthly inservice meetings, some of those teachers do not fill out those forms for reimbursement, since they choose to claim those items on their personal income tax returns. Respondent is one of those teachers. If a teacher chooses not to fill out such a form, no monitoring is done by the School Board since there is no specific rule which would be violated by the failure to fill out such a form. It simply means that the School Board will not have to reimburse its employees for travel expenses. In his 33 years of teaching in the State of Florida, 26 years of which have been for the School Board of Dade County, Respondent has never been suspended or disciplined. No evidence was presented to show that Respondent's work with the City of Miami interfered with his School Board job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Notice of Charges filed against Respondent and reinstating him to his former position with full back pay. DONE and RECOMMENDED this 4th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1983. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 141 Northeast Second Avenue Miami, Florida 33132 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-464 GEORGE Y. BUTLER, Respondent. /
The Issue The issue is whether Petitioner, the Nassau County School Board, has just cause to terminate the employment of Respondent, D. Lynn Owen, a teacher on a professional services contract.
Findings Of Fact The School Board employs Respondent D. Lynn Owen as a teacher. Dr. Owen holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.2/ During the 2011-2012 school year, Dr. Owen taught at West Nassau High School ("West Nassau") in Callahan. Fall 2011-2012 Debate 4 class During the 2011-2012 school year, West Nassau operated on a four-period block schedule rather than the six-period schedule followed by most Florida public schools. Under the block schedule, the school year consisted of two semesters, fall and spring. Students took four classes per day, each class lasting 90 minutes. Students received a full credit per semester for each of the four classes. In addition to her qualifications as an English teacher, Dr. Owen is a nationally ranked speech and debate coach. During the 2010-2011 school year, Dr. Owen started a debate team at West Nassau. She taught Debate 3 during the 2010-2011 school year with a class consisting largely of freshmen recruited from her honors English class. The debate team enjoyed some success in debate competitions and the students wanted to continue taking a debate class in the 2011-2012 school year. West Nassau Principal Ronald Booker was amenable to establishing a Debate 4 class, but was concerned that Dr. Owen's other duties would preclude her teaching the class given the limits of a four-period school day. After some discussion, Dr. Owen volunteered to teach Debate 4 class as a "fifth-period" class to be held after the close of the regular school day. The regular school day began at 9:05 a.m. and ended at 3:25 p.m. Thus, during the Fall Semester of the 2011-2012 school year, Dr. Owen taught Debate 4 as an elective honors class that convened daily from 3:30 until 4:15. In the block schedule system, this class was referred to as a "skinny" block. Unlike the regular block courses, a skinny block met every day for 45 minutes for the full 180 days of the school year. The skinny block class was graded in quarters rather than semesters, and a full credit was earned only if the student remained in the class for the entire school year. Because the Debate 4 class was taught outside of regular school hours, Dr. Owen was not paid to teach the course. West Nassau had several "zero-period" classes that met before the start of the regular school day. Mr. Booker testified that Debate 4 was the only fifth-period class he knew of at the start of the 2011-2012 school year. He testified that he only learned about another fifth-period class, Band 2, after the school year began. William Eason, the band director at West Nassau, testified that he taught Band 2 as a fifth period class during the Fall Semester of the 2011-2012 school year. Mr. Eason testified that Mr. Booker approved the class for credit during the summer before the start of the school year. Mr. Eason stated that he was paid for the class, receiving a stipend for after- school instruction. Mr. Eason's testimony regarding the provenance of the Band 2 class is credited. Both Mr. Eason and Mr. Booker appeared to be testifying honestly, but Mr. Booker's recollection on this point was imprecise. Mr. Booker clearly recalled his approval of Debate 4 but was fuzzy as to when Band 2 came about, though he recalled discussions about the need for the class. Mr. Eason taught the class and naturally had a more specific recollection of the approval process than did the principal. Band 2 met daily at 3:45 p.m. until roughly 5:00 p.m. This was the time during which the marching band rehearsed for its appearances at West Nassau football games and for band competitions. Mr. Eason testified that he had no attendance problems with his Band 2 students. He took regular attendance at the start of the class. Also, if a student were missing, the hole in the marching band formation would be obvious. Three students, A.H., L.C., and C.P., were enrolled in Dr. Owen's Debate 4 class and in Mr. Eason's Band 2 class. It fell to Dr. Owen to fashion a solution to this conflict because it was critical that these students attend band practice every day after school, particularly A.H., who was the band's drum major. No flexibility could come from the Band 2 side of the conflict. Mr. Booker asked Dr. Owen to "work with" these students to provide a way for them to make up missed class time in Debate 4. If they had to miss two days because of band, then Dr. Owen should meet with them for a longer class period on the remaining three days to make sure they met the seat time requirement.3/ Dr. Owen testified that she understood Mr. Booker's instruction to mean that she should be flexible regarding regular class attendance for her Debate 4 students, provided they put in the time required to receive credit for the course. Eight students were in the course at the start of the year, and three dropped out. Dr. Owen stated that the five who remained in Debate 4 met their seat time requirement for the 2011-2012 school year. C.P., now a tenth grader at West Nassau, was in the marching band during Fall Semester of the 2011-2012 school year. He was enrolled in Band 2 and stated that the marching band practiced every day at 4:00 p.m., except for Thursdays when band practice convened at 4:30. C.P. enrolled in Debate 4 during September 2011, on Dr. Owen's recommendation, creating a conflict with his attendance at Band 2. On a few occasions, C.P. split his time at Band 2 and Debate 4. On most days, he would attend Debate 4 from 3:30 until 4:00 p.m. and then go to band practice. If there was no band practice, he would stay in Debate 4 until 5:00 p.m. On Thursdays he was able to stay in Debate 4 for a full hour, but on Fridays during the football season he was not able to attend Debate 4 at all due to his band commitments. C.P. testified that Dr. Owen allowed him to make up the missed time by coming in early in the morning, before first- period began at 9:05 a.m. In this way, C.P. was able to put in at least 30 minutes daily on his Debate 4 assignments. C.P. estimated that 95 percent of his class time was spent performing research on debate topics with his debate partner, which facilitated working independently of the regular class period. C.P. testified that his grade in Debate 4 was based on class participation, including debate practice once a week, and that there were no term papers or written assignments in the conventional sense. Dr. Owen testified that sixty percent of the grade for Debate 4 was based on class work, twenty percent was based on writing, and twenty percent was based on her assessments of the students. She stated that C.P. was not doing things that he would normally do in an English class for "writing," but that she graded the students based on their research, their notes, and their debate outlines, all of which are components of "writing" under the Sunshine State Standards. Her assessments were based on weekly practice debates. C.P. stated that his classmates A.H. and L.C. eventually dropped out of Debate 4 because they were unable to keep up with the requirements of the class in addition to their Band 2 commitments. The School Board has alleged that although C.P., A.H., and L.C. attended fifth-period band practice virtually every day during the Fall Semester of the 2011-2012 school year, and although band practice directly conflicted with Dr. Owen's fifth period Debate 4, those students were marked "present" in the Debate 4 class when they were not present. In fact, the fifth-period classes overlapped but did not conflict at all points. Mr. Eason testified that the band class began at 3:45, but C.P. testified that in practice the class did not commence until 4:00 p.m. C.P. was able to attend debate for thirty minutes, from 3:30 until 4:00 p.m., and then attend the band class starting at 4:00 p.m. C.P.'s testimony was entirely credible on this point. The evidence establishes that it was possible for the three students enrolled in both classes to attend at least portions of both classes. Assuming that the "flexibility" urged by Mr. Booker included the ability for students to make up class time at other times of the day, it was possible for C.P., A.H., and L.C. to meet the seat time requirements for Debate 4 while also maintaining their attendance at the fifth-period Band 2 class. A.H. and L.C. dropped out of Debate 4 halfway through the school year, each receiving a half-credit for the class. C.P. remained in Debate 4 for the entire school year. C.P. testified that A.H. and L.C. dropped the debate class because they were unable to put in the time to meet the seat requirements for the class while maintaining their level of participation in band. Dr. Owen's handwritten attendance sheets for August 29 through October 13, 2011, indicate a total of 16 absences from Debate 4, including five absences for A.H., the band's drum major. However, the attendance records submitted by Dr. Owen for the school's official records show no absences at all from Debate 4 until October 19, 2011. Dr. Owen did not have an adequate explanation for this discrepancy. In response to a direct question as to whether she had marked the students absent on the official attendance sheet, Dr. Owen said, "I don't know. Probably not." Because Dr. Owen was teaching the Debate 4 class voluntarily, without pay, the school would not pay for a substitute teacher. Therefore, Dr. Owen did not have a substitute teacher to fill in for her when she missed Debate 4. Records produced at the hearing indicated that Dr. Owen was absent from the West Nassau campus on September 14 and 23, October 4, November 9, December 8 and 9, and December 14 through 16, 2011. However, Dr. Owen's handwritten attendance sheets show that on September 14, when Dr. Owen was at the hospital for her husband's surgery, four students spent the entire class period in Debate 4 and four others at least checked in with Dr. Owen. The attendance sheets show that on September 23, when Dr. Owen was attending a conference in Baltimore, three students spent the entire fifth-period in Debate 4, three other students checked in, and two were absent. Dr. Owen had no adequate explanation for these discrepancies. On October 4, Dr. Owen was out of school for AVID professional training. Dr. Owen was the AVID coordinator for West Nassau. AVID, or Advancement Via Individual Determination, is the curriculum component of GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs), a grant program established by the U.S. Department of Education to increase the number of low income students who are prepared to enter and succeed in postsecondary education. West Nassau was part of a three-year GEAR UP grant. Dr. Owen's handwritten attendance sheets for October 4 indicate that six students were present for the entire class period and two others checked in with Dr. Owen. In this instance, Dr. Owen explained that the AVID training session in Jacksonville concluded at the end of the school day and that she immediately drove to Callahan to be there for the Debate 4 class. As to Dr. Owen's other listed absences, the record contains no handwritten attendance sheets with which to compare them. In her deposition, Dr. Owen testified that she kept handwritten attendance sheets for the entire school year, but that during its initial investigation the School Board asked only for her attendance sheets for the first quarter of the 2011-2012 school year. She was subsequently suspended and barred from the West Nassau campus and therefore unable to provide the rest of the attendance sheets in response to the School Board's discovery request. West Nassau also generated a daily "subsequent period absentee report." The first-period teacher would take the roll of the students in her class and send the results to the school office. The office would then generate a report of absent students that would be distributed the next day to teachers of subsequent classes. Those teachers would check their own attendance record against the report and mark whether the students were present or absent for their classes. The subsequent period absentee reports for November 9, and December 14 and 15, 2011, each indicate that A.H. was marked absent for her first period class but was marked "present" for Debate 4. On all three of these dates, Dr. Owen was not present at the school. West Nassau maintains a "teacher sign-in sheet for payroll" that is treated as the official record of when a teacher comes into and leaves the school every day. Several of these sheets for the 2011-2012 school year were submitted into evidence. The sheets indicate that on most days, Dr. Owen worked well in excess of eight hours, often well into the evening hours. However, the sheets also indicate several days during the Fall semester on which Dr. Owen signed out of the school at 3:30 p.m. or before, indicating that she could not have been present to teach Debate 4: August 16, September 1, October 26 and 27, and November 2, 2011. There were also a few dates on which Dr. Owen left school after 3:30 but before the 4:15 dismissal time for Debate 4: September 20, October 25, and November 3, 2011. The handwritten attendance sheets for Debate 4 indicate that the class convened on August 16 and September 1, 2011, despite the fact that Dr. Owen had signed out of the school at 3:30 p.m. The evidence indicated that on at least two occasions Dr. Owen chaired meetings of the West Nassau AVID teachers at 3:45 p.m., in conflict with Debate 4. Dr. Owen testified that the AVID meetings occurred 15 minutes after the start of Debate 4, and that she was able to take roll and get the class started on independent work before the AVID meeting started. The AVID meetings were in the same connected suite of classrooms in which Dr. Owen conducted her classes, so that she was at all times within earshot of the Debate 4 class. She could not, however, state with certainty that the students were in the class and working during the class period. The School Board has also alleged that Dr. Owen did not establish or follow any discernible academic standards for the Debate 4 class. The School Board offered little evidence to support this allegation.4/ Dr. Owen provided a detailed course syllabus that included cognitive and behavioral objectives, targets for subject matter mastery, and the specific Sunshine State Standards met by the course. She also provided the students with a classroom management plan with clear rules for the functioning of the classroom and a set of student, parent and teacher expectations requiring the signatures of all parties. Regarding the lack of traditional writing assignments in the Debate 4 class, Dr. Owen testified as follows: If I had any less experience, maybe I would have to have a piece of paper for every single thing that they did. But I didn’t have to have that because I have been trained to assess everything a student has learned in ten minutes or less. And the minute they start talking, whether it's a national competition or in my classroom, in ten minutes or less I can tell you whether they've done any or all of the work that they have been given to do. It's part of knowing how to judge and coach debate. Dr. Owen's testimony on this point is credible. Debate 4 was a performing arts class, and as such did not fit the profile of a standard academic classroom course. To prepare for debates, students were required to perform extensive research and to demonstrate complete mastery of the materials they compiled. At the suggestion of the West Nassau principal, Dr. Owen provided the students some flexibility in making up their seat time due to the recognized conflict during the fifth-period. C.P., for example, made up his seat time by coming in early in the mornings and staying past 4:15 on afternoons when he could be in the class. Dr. Owen estimated that C.P. put in 130 hours of seat time during fourth quarter alone as he prepared for a national competition, when only 135 hours were required to obtain credit for the entire school year. Dr. Owen's clear mastery of the subject matter entitled her to some deference as to the extent to which the students were able to work independently of her. However, on this point, Superintendent of Schools John Ruis testified persuasively that regardless of how much independent study the student is responsible for, there is an expectation that instruction will occur in the classroom and that the students will be under the supervision of the teacher who is responsible for them. Dr. Ruis believed that some arrangement should have been made for supervision of the class in Dr. Owen's absence, regardless of the time the class convened. In summary, as to the allegations regarding the Debate 4 class, the School Board failed to demonstrate that Dr. Owen did not establish or follow any discernible academic standards for the class during the Fall Semester of the 2011-2012 school year. The School Board did demonstrate that Dr. Owen falsified records pertaining to the fifth-period Debate 4 class. It is understood that "falsification" carries a connotation of intentional action. Based on all the evidence, there is simply no way to find that Dr. Owen's actions constituted anything other than an intentional misreporting of student attendance in her Debate 4 class. Dr. Owen submitted attendance reports that were clearly incorrect, showing students present for classes that could not have taken place because Dr. Owen was not present on the West Nassau campus at the time in question.5/ When she filled out the attendance reports, Dr. Owen had to know that she was submitting inaccurate records. Spring 2011-2012 Speech 1 class During the Spring Semester of the 2011-2012 school year, Dr. Owen taught an AVID Speech 1 class at West Nassau. As noted above, AVID is the curriculum component of the federal GEAR UP grant program, the purpose of which is to increase the number of low-income students who are prepared to succeed in postsecondary education. The program's emphasis is on students who show the potential to do college work but who lack the financial and family resources to prepare in the manner available to their more well-to-do classmates. The elective AVID program aims to nurture these students and inculcate in them a desire to succeed in college.6/ The final exam for the Spring Semester AVID Speech 1 class consisted of four parts, each worth 200 points. The 800-point final exam counted for roughly one quarter of the student's grade for the nine-week period.7/ One of the 200-point segments of the final exam was a written essay test. The exam's instructions provided as follows: Please choose ONE (1) essay question. Your essay response should be a minimum of three (3) pages, and a maximum of four (4) pages. Please include an introduction, body, and conclusion. Your response is based off of your own experiences, not just the class's as a whole. Write your responses on a separate sheet of notebook paper. There followed a list of five essay questions: Compare and contrast your 1st semester at WNHS to your 2nd semester. What has changed? How have you improved, and what can you do to continue to improve? What recommendations would you give to the freshman class next year to prepare them for high school? Describe your experience with your first AP/Honors class. What do you think you could have done differently to help your grade? How do you think you could have been prepared in 8th grade, to be ready to go, when the class started? Describe what you think your life is to be like in 15 years. Where do you see yourself? Be as descriptive as possible. Do you believe that a person is born with individual determination, or is it acquired over time? What makes individual determination such a good thing but also a very bad thing? Give examples. Twenty-two students took the essay test. Twenty-one of the students received the same grade, 186 points out of a possible 200. The remaining student received a grade of 160.8/ Dr. Owen made no marks on any of the exams, most of which were replete with spelling errors, grammatical errors and sentence fragments. Three of the essays did not meet the three page minimum, and one of the essays was five and one-half pages long, in excess of the four-page maximum. In explaining her actions, Dr. Owen testified that some of the students were very concerned about their grades as they approached the written essay portion of the exam. Two parts of the final exam had been completed and were "non-negotiable as far as AVID was concerned," in Dr. Owen's words. One of these was the Tutorial Request Form, which Dr. Owen described as a "very stylized Socratic methodology form that they have to use Costa's higher-level order of thinking in order to put together.9/ And that is a killer sheet that they had to do twice a week all year." The second "non-negotiable" part of the final exam was a grade for the binders that the students were required to keep all year. Dr. Owen testified that some of the students had not done well on these two portions of the final exam, for which the AVID program allowed her no leeway to adjust the grades. She testified that these students "needed something to mitigate the damage that had been done in . . . the other two parts of the exam." Some of the students were further concerned that they could not write three pages on the essay test. Therefore, she orally amended the exam instructions, telling the class, "I will look at your essays to determine if you have addressed the prompt and if you have reflected on what you're doing. And if you've worked the whole period and you're working hard and I can tell, then I don't think anyone will be disappointed with their grades." Dr. Owen testified that she had taken this essay test, including the instructions, from an AVID website. She stated that she had never written an exam that called for a minimum or maximum number of pages, and that she did not believe that such a requirement should be strictly enforced. Dr. Owen noted that she had one student whose handwriting became larger and larger as she became more nervous, which caused her to fill more than four pages on the essay test. Another student's primary language was Spanish, but he managed to write a page and a half in English that addressed the prompt. In both of these instances, Dr. Owen declined to discount the students' grades for failure to meet the three-page minimum or four-page maximum. Dr. Owen testified that she has been trained as a professional test scorer and did not need to place marks on the papers. She stated that she took notes on a separate note pad to assist her in grading the papers, though she was unable to produce these notes at the hearing. She also knew that this was the last exam before summer break and that the students would not be coming back for the tests. She intended to place the exams in the students' permanent AVID folders to use as part of their first project for the next school year. The project was to involve peer editing, and she did not want the students to be influenced by marks she had placed on the papers. The essay exam was not intended to be "punitive." It was meant to be "reflective," something she could use at the beginning of the next year as a starting point for further study of the students' personal growth. Dr. Owen noted that the essay test was only one-fourth of the AVID Speech 1 final exam. This part of the exam did not change anyone's grade average because it amounted to so little of the total grade. Dr. Owen testified that it is appropriate to give all the students the same grade provided they "put into it what I ask them to put into it." In her deposition, when asked why 21 out of 22 students received the same score, Dr. Owen replied, "Probably because I liked what they wrote and they maintained the rubric."10/ She testified that she read every word of every essay. The fourth part of the final exam, also worth 200 points, was a "mandala autobiography" project. Each student was required to draw a mandala, or circle, containing five symbols that represent unique and varied aspects of the student and/or his life. According to the written rubric for the project, a "very effective" mandala would demonstrate its symbolic purpose, would be visually appealing, and would have a purposeful and unifying connecting design. Accompanying the mandala would be an essay that "thoroughly describes and explains the symbols contained in the mandala. The essay would use "strong sensory details to bring each symbol to life." The "very effective" essay should be well-organized, use "well-crafted transitions to propel the reader forward," contain varied sentence structure and have "few, if any, mechanical errors." All 22 students in the AVID Speech 1 class received a grade of 190 out of 200 on the mandala autobiography project. Dr. Owen made no marks of any kind on any of the project materials submitted by the students. Dr. Owen explained that this project was the culmination of "an entire year's worth of reflection through AVID." As well as writing explanatory essays, the students were required to present the mandalas to the class and explain each symbol and color used in the drawings. Dr. Owen testified that the mandala autobiography was something of a group project, with all of the students working on the rubric together. Again, she did not make marks on the papers because the mandalas were going to be used during the next school year. Dr. Owen testified: [A]t the beginning of this year, we were going to take those mandalas, and we were going to turn that into the second project, which was: over the summer, how have you changed? How have your collages changed? How did the symbols change? Are they still valid? And so I wasn't going to mark on anybody's artwork, and I didn't need to mark on any of them because the students' rubrics and things . . . I had them all together in one place. Dr. Owen conceded that some students produced more materials than others and that some projects appeared to have had more effort put into them, based on the detail of the written materials. Nonetheless, Dr. Owen testified that each one of the students in the class "absolutely" earned the grade he or she received. Dr. Cynthia Grooms, the assistant principal at West Nassau who conducted the initial investigation into the allegations against Dr. Owen, testified that she found it unusual that so many students received the same grades on the essay test and the mandala project, especially because there were no marks on the papers. These facts raised concerns as to whether Dr. Owen reviewed the exams, graded them properly, documented her grading process, and provided feedback to the students. Dr. Ruis also found it "highly irregular" for 22 students in a class to receive an identical grade on a written assignment. Dr. Ruis believed the probability of such an occurrence "would normally be very slim." As to the essay test in particular, Dr. Ruis stated: It would be difficult not to read these essays and make some distinctions between them with regard to quality of the product that the students produced. However, that was not reflected in the scores that they were assigned . . . It suggested that they were not reviewed objectively, that they were not graded in accordance with the guidelines that were issued, and done haphazardly. Even Mr. Booker, the former West Nassau principal who testified on behalf of Dr. Owen, stated that it would be unusual for all 22 students in a class to receive the same grade on a written project. If he were shown 22 written essays, all of which received the identical grade and none of which had a mark on them, Mr. Booker would conclude that the teacher had not graded them. The School Board's allegation is that Dr. Owen "falsified and/or negligently failed to maintain accurate grading records for her fourth period Speech I class." It is found that Dr. Owen did not "falsify" records for the class because there is no evidence that Dr. Owen intended to create inaccurate or misleading grading records. The undersigned finds Dr. Owen to be a dedicated teacher and a sympathetic witness, and has attempted to give her the benefit of every doubt in this proceeding. The AVID Speech 1 class was an elective class designed to encourage potential first-generation college students to pursue higher education. The class was designed more to encourage reflection and self- examination than to exert academic pressure on the students. It is found that, given the nature and goals of the class, Dr. Owen had some measure of discretion to apply a more relaxed grading standard. However, by her own admission, Dr. Owen negotiated with her students the terms of the AVID Speech 1 essay test after the students saw the written instructions to the test, essentially telling them to disregard the instructions and promising them a good grade if she believed they were working hard. She then proceeded to give 21 of 22 students a score of 186 out of 200, or a solid "A," without apparent regard to the manifest differences in quality among the essays. She made no marks on any of the papers, failing to correct for spelling and grammatical errors. Dr. Owen testified that she took notes in a separate note pad that she was unable to produce at the hearing. She stated that the students received the same score because they all wrote according to her undisclosed personal "rubric." The undersigned credits Dr. Owen's testimony that she read every word of every essay, but cannot credit her conclusion that all of these essays were of precisely the same quality meriting precisely the same grade. Based on these facts, it is found that Dr. Owen negligently failed to maintain accurate grading records for her fourth-period Speech I class as to the essay portion of the final exam. As to the mandala autobiography, there are factors apart from those discussed as to the essay test that incline the decision toward Dr. Owen. The mandala project had an objective rubric against which the finished product could be judged. Though each student produced an individual mandala, the overall project was visualized as a group effort, providing some justification for Dr. Owen's decision to award all 22 students with a grade of 190. A reasonable person could disagree with Dr. Owen's method of grading the mandala autobiography project, but her grading decision cannot be found to constitute a negligent failure to maintain accurate grading records. Evidence as to Dr. Owen's fitness and effectiveness Mr. Booker was the principal of West Nassau and Dr. Owen's direct supervisor throughout her tenure at the school. He described Dr. Owen as a "fabulous teacher," a "master" at keeping her students "highly engaged and involved in the educational process." Mr. Booker stated that he had no concerns about Dr. Owen's professionalism and had never known her to neglect any of her duties. His only concern was as follows: I've had concerns about her work ethic, because she works, you know, nonstop pretty much every day, every day, every night, weekends. She's a very dedicated teacher, puts in more hours as one teacher probably than three or four other teachers do. I used to have to try to kick her out of the building. Dr. Owen received the highest score possible on her annual evaluation for the 2011-2012 school year. She received an overall score of 97 out of 100 possible points on her 2010-2011 annual evaluation. She was subject to two evaluations during the 2009-2010 school year, for which she received scores of 94 and 100 out of a possible 100 points. Iris Coleman is a retired teacher and administrator for the School Board. In the 2008-2009 school year, Ms. Coleman was acting principal at the Student Educational Alternative School ("SEAS") at which Dr. Owen was a teacher. Ms. Coleman testified that her performance evaluations of Dr. Owen were very good, and that Dr. Owen was "one of the most competent teachers that I have ever observed." Ms. Coleman never knew Dr. Owen to neglect her duty, stating that, "I have never seen anything but the finest of performance academically, professionally, and socially." Melody Spruell, the former English department head and AP coordinator at West Nassau, testified that she had observed Dr. Owen's Debate 4 class 15 or 16 times and her AVID Speech 1 class about a dozen times. She noted that Dr. Owen's students posted "stellar" scores on the FCAT exam. Dr. Spruell stated that Dr. Owen "makes the rest of us kind of look like, you know, chopped liver." Dr. Spruell testified that if she had ninth- grade children, "my kids would be in her class." Maureen Lullo is an English teacher who shared the same suite of classrooms with Dr. Owen and worked closely with her in the AVID program. Ms. Lullo described Dr. Owen as "a brilliant mind and really one of the best teachers that I have been exposed to in my 24 years of teaching." Dr. Ruis testified as to the factors that led him to recommend Dr. Owen's dismissal: Well, I think to go back to the Code of Ethics of the teaching profession of the State of Florida, teachers have an obligation to present information honestly; they have an obligation to the profession and to the students and to the parents to not produce information that would misrepresent the facts or be submitted fraudulently. I think that's a very serious breach of the Code of Ethics. And my expectation for all of our teachers would be that they perform and that they act in a manner that's of the highest character, as exemplifying the Code of Ethics, because that is certainly something that we need to model for our students. And when that does not happen, I think it -- you know, it reduces the effectiveness of someone in the instructional position with students under their supervision. Dr. Ruis concluded that it would be "very, very difficult" for Dr. Owen to remedy her impaired effectiveness at West Nassau or in the Nassau County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order finding D. Lynn Owen guilty of incompetency and misconduct in office and imposing the sanction of suspension without pay for the 2012-2013 school year. DONE AND ENTERED this 5th day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2013.
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
