The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2011.
The Issue The issue in this case is whether just cause exists for Petitioner, Hernando County School Board (the “School Board” or “Board”), to terminate the employment of Respondent, Renee Koulouris.1/
Findings Of Fact The School Board is responsible for hiring, supervising, and firing all employees within the Hernando County School System. This responsibility includes taking administrative action when an employee violates any rule or policy of the Board. Mrs. Koulouris was hired by the School Board approximately 15 years ago as a fourth grade teacher. At the beginning of the 2016-2017 school year, she was transferred to a fifth grade class in order to provide assistance to a struggling team. Her principal, Mr. Piesik, described Mrs. Koulouris as a very strong teacher with very high standards. Mr. Piesik said Mrs. Koulouris ran her classroom like “a well-oiled machine.” Mrs. Koulouris has had no disciplinary actions prior to the incident at issue in the present proceeding. One of the duties of a fifth grade teacher is to administer the Florida Standards Assessment (“FSA”) tests in four different subject areas: Language Arts; Math; Writing; and Science. The tests are an integral part of a student’s education and are used to determine placement in the next grade level, i.e., which classes the student will be eligible for upon advancement to middle school. It is imperative that FSA tests are administered correctly and securely. Extra measures are taken to ensure that all students take the tests independently, without assistance from anyone. Protocols are put in place to monitor students who are taking the tests. Mrs. Koulouris attended all of the required training prior to administering the tests. She also signed the Test Administration and Security Agreement, and the Test Administrator Prohibited Activities Agreement, acknowledging her understanding of the test protocols. Some of the FSA tests are administered in the classroom; some are done in the computer lab. In either case, the teacher administering the tests must diligently follow all rules and procedures. Fairness and honesty is paramount. The Board recommends the presence of a proctor in addition to the teacher when tests are given to certain sized classes. No proctor was present when the tests at issue herein were administered. Mrs. Koulouris is accused of inappropriately assisting students during the FSA tests she administered in the 2016-2017 school year. Those tests were taken over a period of three months: The writing test was administered on February 20, 2017; the English test was given on April 19 and 22, 2017; the Science tests were given on May 1 and 2, 2017; and the Math test was done on May 5 and 9, 2017. During this same time frame, Mrs. Koulouris’ classes took a number of practice FSA tests (as well as regular tests in various subjects). Mrs. Koulouris is alleged to have assisted students by signaling them during the FSA tests to indicate that their answer to a particular question might be wrong. This was allegedly done by tapping a student or making a particular face at them. Any student so notified would then be expected to change their answer. It is also alleged that Mrs. Koulouris would stand behind students for long periods of time, tapping or nudging them if they wrote or entered an incorrect answer. If the allegations are true, Mrs. Koulouris would be in violation of the test protocols and policies. Mrs. Koulouris adamantly and credibly denied any such behavior. She describes her “assistance” to the students as follows: She explains the test-taking process. She stresses the need to concentrate and stay on track. She tells them that if they do not know an answer, to move on and come back to that question later. She reminds them to be thorough and to take their time, thinking about each question carefully. She instructs the students to go back over their work when they finish, time allowing. In order not to disturb the students while they are testing, she prefers to remain at her desk rather than walking around the room. However, she does move around the room on rare occasions, or when she sees a student who is off task, e.g., sleeping or gazing out the window. She would sometimes tap a student’s desk to get them back on track or, in some instances, to wake them up. The testimony of the two students who appeared at final hearing in this matter supports Mrs. Koulouris’ description of her normal process for administering an FSA test. In the weeks leading up to the FSA tests, Mrs. Koulouris would give a number of practice exams so that the students would become accustomed to the test format. She does help students during the practice tests, but generally for the purpose of keeping them focused, not to correct their answers. She uses facial expressions and eye contact to provide that assistance. Mrs. Koulouris’ demeanor at final hearing gave credence to her testimony. She seemed very sincere concerning her actions and her entire testimony was credible. The allegations concerning Mrs. Koulouris’ actions during the 2016-2017 FSA testing cycle came about towards the end of that school year. As she described it: Fifth grade “graduation” occurred on May 18, 2017, a Thursday, at which time awards were handed out to students based on their performance. The following day, Friday, Mrs. Koulouris was in a multipurpose room tending children who would be picked up by their parents. Other adults were present in the room. Mr. F., a fellow Suncoast teacher whose son was a student in Mrs. Koulouris’ class, approached Mrs. Koulouris. Mr. F. angrily asked why his son had not received a “gold award” at the graduation ceremony held the day before. Mrs. Koulouris explained that the child had not achieved the necessary grade point average to receive a gold award. Mr. F. told her he was very “pissed off” and that if he found out that Mrs. Koulouris did something “on purpose” to hurt his son, he would be extremely angry at her. Mrs. Koulouris felt very intimidated by Mr. F.’s demeanor and his language. She was also very surprised, as she thought she had a good relationship with the student and had been fair with him. Mrs. Koulouris reported the incident with Mr. F. to her team leader and then to the principal, Mr. Piesik. Mr. Piesik reprimanded Mr. F. for his behavior and told Mr. F. not to have any further contact with Mrs. Koulouris unless an administrator was present. On the following Monday, Mr. F. went to Mr. Piesik and reported that-–according to statements made by Mr. F.’s son over the weekend-–Mrs. Koulouris had improperly assisted her students during the FSA tests. The timing of Mr. F.’s allegation against Mrs. Koulouris is extremely suspect. The principal immediately undertook an investigation to determine whether the allegation had any merit. He prepared a list of questions to be posed to Mrs. Koulouris’ students. Mr. Piesik went to the classroom on May 23, 2017, and talked individually with several randomly selected students, asking them the questions he had prepared in advance. (Mr. F.’s son was intentionally excluded from the group of students to be questioned.) Some of the questions were very innocuous, i.e., Mr. Piesik asked about the school year and about the FSA testing in general. He then pointedly asked, “During the FSA testing, did your teacher do anything to help students get the right answers?” A few of the students apparently indicated that Mrs. Koulouris had said something about making a face or nudging them if they were off task, gave a wrong answer, or were making mistakes. Others said that no such comments were made by Mrs. Koulouris. Mr. Piesik compiled the students’ answers to his queries and contacted two school district administrators: Matthew Goldrick, supervisor for professional standards; and Linda Pierce, supervisor of assessment and accountability. The administrators suggested Mr. Piesik continue his investigation of the matter. Next, Mr. Piesik drafted a form containing three statements and one question. The singular question on the form was, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” He placed “Yes” and “No” lines beneath the question to record the students’ responses. The three statements drafted for inclusion on the form were: (1) “Yes I knew Mrs. Koulouris was helping students on the test.” (2) “Mrs. Koulouris did NOT help me on the test.” (3) “Mrs. Koulouris helped me on the test by giving a tap or a look so I knew I needed to change my answers.” Beneath the question and statements were these words: “Please indicate which test she helped you on. Math – Reading - Science.” On the following day, May 24, 2017, Mr. Piesik interviewed all 22 of the students who had undergone FSA testing with Mrs. Koulouris, including Mr. F.’s son. This time, the principal used his newly created form containing the one question and three statements. If the student agreed with a statement when it was read to him or her, Mr. Piesik would place a check next to the statement. He would circle either yes or no after asking the question, depending on the student’s answer. The principal testified that “all 22 students” answered “Yes” to the question of whether Mrs. Koulouris said she would tap them if their answer was wrong. Of those students, 12 said Mrs. Koulouris was “helping students” during the test, seven indicated they had been helped, and 13 said Mrs. Koulouris did not help them. However, some of the same students who said their teacher was helping students when asked on May 24, 2017, had said just the opposite on May 23, 2017. The discrepancy in their answers leads to the conclusion that the questions, as posed, were either unclear to the students or were unintentionally leading in nature. By way of example, student C.M.F., who had presumably answered “Yes” to the question posed on May 24, 2014, as to whether Mrs. Koulouris had helped students during the FSA testing (since all students had responded that way), said in her deposition that she misunderstood the question Mr. Piesik had asked her, that it was “all a misunderstanding.” She maturely opined that, “So, it is very commonly known that people cannot understand something because it was worded a way that they thought it would mean something else. And I thought what the principal, Mr. Piesik, said, he had asked me if she had helped with the – if Mrs. Koulouris had helped with the test, but he didn’t say the specific FSA so I thought he was talking about tests in general. And sometimes she would explain, like rephrase stuff and explain it to us for the normal tests, but never for the FSA.” This sort of equivocation renders the students’ statements virtually uncredible. Two of the students testified at final hearing. Their testimony was insufficient to adequately corroborate the hearsay evidence found in the written forms. Student A.S. said at final hearing that “before tests” Mrs. Koulouris would tell us she would tap students on the shoulder if they were “way off track” and you “needed to get back in the game.” However, she did not remember any student being touched during the FSA tests. A.S.’s testimony was too equivocal to establish whether or not Mrs. Koulouris had assisted any students during the FSA tests. It is notable that the School Board did not cite to any of A.S.’s testimony from final hearing, but instead relied upon the less certain and unclear statements made by students in their depositions, which are both hearsay in nature and less credible than live testimony. Student A.W.’s memory of the events was even more clouded. She believes she remembers one student messing up the order of his responses (i.e., answering up and down rather than side to side on the answer sheet) and Mrs. Koulouris helped him get realigned, but does not believe Mrs. Koulouris otherwise assisted anyone during the tests. When confronted with her response to the principal’s form questions, A.W. simply could not remember being asked the questions or how she responded. On May 23, 2017, Mr. Piesik had asked her the question from his form, “During the FSA testing, did your teacher do anything to help students get the right answers?” She responded, “No.” On May 24, 2017, she answered “Yes” to the question, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” At final hearing, A.W. answered “No” to the question, “Did you see or hear Mrs. Koulouris make the statement, ‘If I look at you funny or strange or if I give you a tap on the shoulder, that means you need to change your answers’?” Again, the testimony was inconsistent and was not sufficient support to corroborate or affirm the information found in the forms.2/ The truth of whether Mrs. Koulouris helped students on the FSA tests cannot be established by Petitioner’s evidence, the supposed student responses as tallied by Mr. Piesik, due to their hearsay nature and various discrepancies. When considering how the allegation against Mrs. Koulouris first arose, i.e., after her confrontation with her fellow teacher, Mr. F., and the equivocal testimony of the students, there is insufficient basis to support the allegations against her. Findings of Ultimate Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Accordingly, whether conduct alleged in an administrative complaint violates the laws, rules and policies set forth in the charging document is a factual, not legal, determination. The Board has not met its burden in this case of proving that Mrs. Koulouris engaged in the conduct for which she was charged. Although Mr. Piesik testified as to his conclusion based on interviews with students, that conclusion was not corroborated by the students’ testimony. The double hearsay nature of the students’ responses to Mr. Piesik’s questions, coupled with the vague recollections of students actually testifying, is wholly insufficient to satisfy the Board’s burden of proof. It is clear Mrs. Koulouris gave her students instructions about how to take the FSA tests, administered practice test at which the strict FSA rules were not applicable, monitored the tests and redirected students who were sleeping or otherwise distracted, and sometimes walked around the classroom. But the evidence is woefully short of proving wrongdoing or improper assistance to students. Notably, the deposition transcripts offered into evidence jointly by the parties were not helpful to the finder of fact. The students’ responses to questions were vague and disjointed. Each of the parties interpreted the students’ statements differently, each seeming to think the statements supported their position in this matter. Besides the obvious hearsay nature of the evidence, the statements were nebulous, and lacking clarity or persuasiveness. The students contradicted each other, some could not even remember where they were sitting during testing, and their memories seemed, at best, confused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Hernando County School Board, finding no cause to terminate the employment of Respondent, Renee Koulouris, as there is insufficient evidence that she violated statutes, rules or policies regarding the administration of FSA tests. DONE AND ENTERED this 3rd day of April, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of April, 2018.
The Issue The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.
Findings Of Fact The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter, Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. James W. Hamilton 505 N.W. 177th Street Apartment 120 Miami, Florida 33169 Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue in this case is whether Respondent, Kevin R. Sanders, committed the offenses alleged in an Administrative Complaint filed by the Commissioner of Education with the Education Practices Commission on June 10, 1997.
Findings Of Fact Petitioner, Frank T. Brogan, as the Commissioner of Education of the State of Florida, is authorized to enter complaints against persons holding teaching certificates in the State of Florida. Respondent, Kevin R. Sanders, has held at all times relevant to this proceeding Florida Teaching Certificate No. 660581. The certificate was issued by the Department of Education and is valid through June 30, 2002. Mr. Sanders is authorized to teach in the areas of physical education and general science. (Stipulated Facts). At all times relevant to this proceeding, Mr. Sanders was employed by the Escambia County School District (Stipulated Fact). During the 1995-1996 school year1, Mr. Sanders served as a teacher and coach at Pensacola High School (hereinafter referred to as the “Pensacola High”) (Stipulated Fact). Mr. Sanders was assigned responsibility for the supervision of an in-school suspension class (hereinafter referred to as the “ISS Class”) (Stipulated Fact). Mr. Sanders was assigned to serve as the ISS Class teacher for each class period except for one period, which was his planning period. ISS Class students went to a physical education class taught by Jack Jackson during Mr. Sanders’ planning period. Pensacola High’s ISS Class was a disciplinary program established for students who have exhibited behavior warranting suspension from school. Rather that suspending the student from school, the student is assigned to the ISS Class so that he or she will continue to attend school and receive academic instruction. Deans at Pensacola High responsible for disciplinary actions determine whether a student’s conduct warranted referral to the ISS Class and the length of the referral. Students assigned to the ISS Class would continue to receive academic assignments from their teachers. They were required to work on those assignments while in the ISS Class. While students were in the ISS Class, they were not allowed to talk or to sleep. Mr. Sanders wrote the in-school suspension program for Pensacola High, so he was familiar with the purpose of the program. Class periods at Pensacola High were one and one-half hours in duration. There were seven class periods, numbered 1 through 7. On even days, i.e., October 4, class periods 2, 4, 6, and 8 were held. On odd days, i.e., October 5, class periods 1, 3, 5, and 7 were held. Class period 7 was the last class period held on odd days and class period 8 was the last class period held on even days. A “varsity sports” class was scheduled for the last school period, period 7 or 8, of the school day. The varsity sports class consisted of two combined physical education classes. The teachers responsible for these classes were Mr. Jackson and Toby Peer. During the fall of 1995, students in the varsity sports class engaged in weightlifting. Mr. Sanders wanted to act as the instructor. Mr. Sanders was not, however, scheduled to participate in the varsity sports class. His responsibility was to supervise the ISS Class. Early during the fall of 1995, Mr. Sanders, Horace Jones, the Principal of Pensacola High, and David Wilson, the head football coach at Pensacola High, met to discuss allowing Mr. Sanders to supervise the weight training program for the varsity sports class. Mr. Sanders and Mr. Wilson explained to Mr. Jones that weightlifting would only be taught every other day, on odd days. They asked Mr. Jones for permission for Mr. Sanders to go the football stadium where the varsity sports class was held to supervise the weightlifting. Mr. Jones agreed to allow Mr. Sanders to go to the football stadium during class period 7 to supervise weightlifting. Mr. Jones did, however, indicate that Mr. Sanders’ ISS Class should be supervised. The testimony in this proceeding concerning the conditions, if any, that Mr. Jones imposed on Mr. Sanders and/or Mr. Wilson, was contradictory. Mr. Jones indicated that he did not give Mr. Sanders permission to take his ISS Class to the stadium or otherwise remove them from their normally assigned classroom. Mr. Sanders testified that Mr. Jones was aware that Mr. Sanders was taking the students to the stadium on the days that he supervised weightlifting. Based upon the weight of the evidence, Mr. Jones either gave express permission for the ISS Class to be taken to the stadium when Mr. Sanders was supervising weightlifting or was aware that the ISS Class was being taken to the stadium. Mr. Sanders’ ISS Class was assigned to room 30-A, which was located on the second floor of the main classroom building of Pensacola High. Room 30-A is located on the west end of the main classroom building. Subsequent to obtaining permission to supervise weightlifting for the varsity sports class, Mr. Sanders took his ISS Class to the football stadium during class period 7. Mr. Sanders left the students in the bleachers of the stadium above the weightlifting room. The weightlifting room was located in a room just below the bleachers where he left the students. While the students were in the bleachers, they were not directly supervised by any teacher or adult. There were assistant football coaches on the football field in the stadium supervising athletes engaged in football drills some of the time that the ISS Class was left in the bleachers, but they were not assigned the responsibility to supervise the ISS Class. Mr. Sanders would usually, but not always, inform Mr. Wilson that he had arrived to supervise the weightlifting training. Mr. Sanders did not, however, insure that the students in his ISS class were actually being directly supervised by another teacher or adult. Nor did Mr. Wilson tell Mr. Sanders that any arrangement had been made to provide supervision for the ISS Class on October 17, 1995, or on any other occasion. On October 17, 1995, Mr. Sanders had eight students assigned to the ISS. For class period 7, Mr. Sanders escorted his class from classroom 30A to the stadium (Stipulated Fact). When the ISS class arrived at the stadium, Mr. Sanders directed the eight students to sit in the bleachers and told them to remain seated there. Mr. Sanders then left the eight students, went around the side of the stadium and went into the weight room located just below where he had left his students. Mr. Sanders could not see or hear the eight students that he left in the bleachers from the weight room. When Mr. Sanders left the eight students, there were no other teachers or adults left to supervise the eight students. Mr. Sanders left them unsupervised despite the fact that the eight students had evidenced disciplinary problems and, therefore, had evidenced a need for close supervision. Some of the students were in the ISS Class due to truancy, but were left unsupervised by Mr. Sanders. Although there were other assistant coaches present to supervise students in the stadium area, the evidence failed to prove that any of those coaches, including Mr. Core, who was on the stadium football field part of the time that the ISS Class was sitting in the bleachers, were in charge of supervising the ISS Class. The evidence failed to prove that Mr. Core or any other teacher present that day had been given such an assignment. Because Mr. Core was engaged in supervising passing drills with the football team, even if it had been proved that he was in charge of the ISS Class, he could not be expected to provide reasonable supervision of the ISS Class and supervise passing drills. Despite Mr. Sanders' testimony that supervision of the ISS Class was the responsibility of Mr. Wilson, he also testified that he left the weightlifting room on several occasions to check on the students. The evidence failed to support either explanation. At some time after Mr. Sanders left the ISS Class students in the stadium, a 15 year-old female student (hereinafter referred to as “Student X”) that had been assigned to the class that day left the other students to go to the ladies’ restroom under the stadium (Stipulated Fact). She was gone approximately 45 minutes. Student X had been determined to have a Specific Learning Disability and was in the exceptional student education program. While Student X was under the stadium stands, she performed oral sex on several male students in the ladies’ bathroom (Stipulated Fact). Eight male students were subsequently arrested, charged and prosecuted for committing an unnatural and lascivious act with Student X. Seven students pled no contest to the charge, and one was tried and acquitted (Stipulated Fact). Five of the male students were supposed to be in the varsity sports class. At or close to the end of class period 7, an assistant coach came into the weightlifting room and told Mr. Sanders that he had heard that there was a girl underneath the stadium and suggested that Mr. Sanders “might want to go check.” Mr. Sanders left the weight room and began searching under the stadium from the north end where the weight room was located, to the south end. Mr. Sanders eventually found Student X and a male student in a small room in the back of the boys’ junior varsity locker room under the south end of the stadium. Mr. Sanders found Student X and the other student talking. He instructed the male student to return to his drivers' education class. Mr. Sanders took Student X back to the bleachers and the ISS Class. Mr. Sanders did not report the incident nor take any action against Student X or the male student he found her with. The next day, Student X reported that students in ISS Class were teasing her about having done something bad. Although not known by teachers at the time, Student X was being teased about what had happened to her on October 17, 1995. She reported the teasing to the Dean's office. Richard Souza, the head of the exceptional student education program, talked to Student X and concluded that Student X should not be sent back to the ISS Class. 38. Student X was teased further on the bus and in other parts of the school about the incident. What had happened to Student X on October 17, 1995, was not discovered until several days after the event took place. Student X was ultimately transferred to another school. Mr. Sanders' was issued a written reprimand for his involvement in the October 17, 1995, incident by the Superintendent of Schools, School District of Escambia County. Mr. Sanders was subsequently transferred to Workman Middle School as a physical education teacher. Mr. Sanders contested the suggestion in the reprimand that he was required to "provide direct supervision" of the ISS Class. Based upon the weight of the evidence, it is concluded that Mr. Sanders breached his responsibility to the ISS Class when he failed to make reasonable effort to protect the students of the ISS Class from conditions harmful to learning and/or to their mental and/or physical health and/or safety. He breached his responsibility when he left the students unattended and unsupervised. Until he knew that another teacher or adult had taken over the supervision of the ISS Class, it was unreasonable for him to abandon them. The evidence failed to prove that Mr. Sanders "intentionally" exposed any student to unnecessary embarrassment or disparagement. The evidence in this case proved the following facts concerning the aggravating and mitigating circumstances required to be considered in disciplinary cases by Rule 6B-11.007(3), Florida Administrative Code: The offense is this case was severe. Mr. Sanders breached one of the most important duties of a teacher: to insure that the students under his charge were properly supervised. The offense did not constitute a danger to the "public." The evidence only proved one repetition of Mr. Sanders' offense. It has been almost four years since the incident. Mr. Sanders has not been disciplined by the Education Practices Commission. Mr. Sanders has been an educator for approximately ten years and was, and still is, well thought of by some in the Escambia County School Board. He has been an educator in Florida since the 1989-1990 school year and was an educator in Alabama for one year prior to that. The actual damage as a result of the lack of supervision of the ISS students was severe. One student was severely harmed and the other students, who had evidenced a great need for supervision, were left unattended. The penalty will not be as effective a deterrent as the publicity concerning the incident. If Mr. Sanders is suspended, as recommended by Petitioner, it would have a serious impact on his livelihood. The evidence failed to prove any effort at rehabilitation by Mr. Sanders, nor is there any rehabilitation reasonably necessary in this matter. Mr. Sanders was not forthright concerning his responsibility in this matter. Mr. Sanders did not admit his responsibility to stay with the students at a minimum until he knew they were supervised. Instead, he attempted to lay the blame elsewhere. Mr. Sanders is currently employed as a teacher for the Escambia County School District. He is employed at Tate School. There was only one violation. Therefore, there was no need for any "[a]ttempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation." There have been no related violations against Mr. Sanders in another state, including findings of guilt or innocence, penalties imposed and penalties served. Mr. Sanders was negligent in his actions, but he did not commit any violation independent of his neglect. There were no penalties imposed for related offenses. No pecuniary benefit or self-gain enured to Mr. Sanders. The degree of physical and mental harm to Student X was great. No physical and/or mental condition contributed to Mr. Sanders' violation, including recovery from addiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kevin R. Sanders has violated the provisions of Section 231.29(1)(i), Florida Statutes, in that he violated Rule 6B- 1.006(3)(a), Florida Administrative Code, as alleged in Count One and Count Two of the Administrative Complaint. It is further RECOMMENDED that Count Three of the Administrative Complaint alleging that Mr. Sanders violated Rule 6b-1.006(3)(e), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Mr. Sanders' teaching certificate be suspended for a period of six months, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998.
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of April, 2001.
The Issue Whether just cause exists to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at Melaleuca Elementary School in Palm Beach County, Florida. Respondent was initially hired by the School Board as a teacher in 2006. At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the Collective Bargaining Agreement between the School Board and the Palm Beach County Classroom Teachers Association. The Florida Standards Assessment ("FSA") is a standardized, statewide, individual assessment examination administered to students in Florida's public schools. The FSA for third-grade students includes the Mathematics and English Language Arts ("ELA") Reading assessments. Student performance on the FSA is a measure of student accountability. A student's test score on the FSA must accurately reflect the student's actual performance on the test. If a student receives assistance, the student's performance will not be accurately measured. Student performance on the FSA is a factor in the determination of a school's grade, a teacher's evaluation, and potentially, a teacher's compensation and bonus. To maintain the integrity of the FSA and to ensure the proper administration of the FSA, teachers receive mandatory training in the correct administration of the test. On or about March 16, 2016, Respondent attended the FSA Test Administrator Training at Melaleuca Elementary School, which included instruction about test security. On or about March 16, 2016, Respondent received a copy of a PowerPoint entitled "Spring 2016 Florida Standards Assessments Training Materials – Computer Based Grades 4-5 ELA Reading; Grade 5 Mathematics – Paper-Based Grade 3 ELA Reading and Grades 3 & 4 Mathematics." On or about March 16, 2016, Respondent signed the "Test Administration and Security Agreement" and the "Test Administrator Prohibited Activities Agreement," which prohibit assisting students in answering tests, giving students verbal and non-verbal cues, and changing or interfering with student responses. By signing these agreements, Respondent agreed to follow all test administration and security procedures outlined in the manual and rules, and she agreed not to engage in any prohibited activities or acts that would violate the security of the test or cause student achievement to be inaccurately measured. At the hearing, Respondent acknowledged she understood the contents of these agreements and the prohibited testing activities. On March 31, 2016, Respondent was a third-grade teacher at Melaleuca Elementary School and administered/proctored the FSA Mathematics assessment to third-grade students. During the test, Respondent gave assistance to students and interfered with students' answers. Specifically, Respondent: (1) made noises and tapped on students' desks and their test answer sheets to signal wrong answers; (2) pointed to wrong answers on the test answer sheets; whispered to a student that "she was doing a good job"; and erased marks and unwanted answers on students' answer sheets. Many students who were in the classroom when Respondent administered the FSA Mathematics assessment on March 31, 2016, credibly and persuasively testified at the final hearing regarding the assistance Respondent gave to them during the examination, and Respondent's interference with their answers during the examination. N.D. testified that during the test, Respondent made noises to signal a wrong answer. N.D. also testified that Respondent pointed to a question on her answer sheet in an effort to have N.D. change her answer. N.D. also testified that Respondent erased bubbles on her answer sheet. A.C. testified that during the test, Respondent made noises to signal a wrong answer. A.C. also testified that Respondent erased bubbles on her answer sheet. A.V. testified that during the test, Respondent made noises to signal a wrong answer. A.V. also testified that Respondent whispered to her that "she was doing a good job." A.V. also testified that Respondent pointed to answers and erased bubbles on her answer sheet. H.C. testified that during the test, Respondent made noises to signal a wrong answer. D.A. testified that during the test, Respondent tapped on his desk to signal a wrong answer. Y.C. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. also testified that Respondent erased bubbles on his answer sheet. A.H. testified that during the test, Respondent made noises. A.H. also testified that Respondent erased a mark on his answer sheet. Moreover, at the hearing, Respondent conceded that she erased bubbles on students' answer sheets and prompted a student when asked by the student about the definition of a polygram. Respondent's attempt to explain how she did not assist students and interfere with their answers during the FSA examination is unpersuasive and not credited. Respondent's assistance to students and interference with students' answers during the FSA Mathematics assessment resulted in the Florida Department of Education ("DOE") invalidating each of the students' math tests in Respondent's classroom. The invalidation of the students' math tests resulted in a deficit for the placement of students in the appropriate math instruction for the following school year. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2). By assisting students and interfering with students' answers during the FSA examination, Respondent violated Florida Administrative Code Rules 6A-10.042(1)(c), (d), and (f). Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties. Respondent also violated rules 6A-10.081(2)(a)1., (2)(b)2., and (2)(c)1., by failing to make reasonable effort to protect students from conditions harmful to learning, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, and failing to maintain honesty in all dealings. By assisting students and interfering with students' answers during the FSA examination, Respondent also violated School Board Policy 1.013 by failing to carry out her assigned duties in accordance with state rules and School Board policy. Respondent's conduct in assisting students and interfering with students' answers during the FSA examination was clearly flagrant and purposeful. Respondent was trained not to assist students and interfere with students' answers during the FSA examination. Respondent was aware of the prohibition against assisting students and interfering with students' answers during the FSA examination. Rather than adhere to these prohibitions, however, Respondent made a conscious decision to ignore them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and termination of Respondent's employment.1/ DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2017.
The Issue The issue is whether Respondent committed the acts alleged in the Amended Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent holds, and at all relevant times, held a valid Florida Educator’s Certificate. Respondent is and, at all relevant times, was a fifth- grade teacher at Avon Park Elementary School in Highlands County. Respondent has been an elementary school teacher for 19 years. She taught fourth and fifth grade at Zolfo Springs Elementary School in Hardee County from 1986 through the end of the 2000-01 school year. She started teaching at Avon Park Elementary School at the beginning of the 2001-02 school year. Respondent is currently on a year-to-year contract. Her contract was renewed for the 2003-04 and 2004-05 school years notwithstanding the allegations in this case, which occurred during the 2002-03 school year. Respondent has not had any disciplinary problems over the course of her career, and other than the allegations in this case, she has never been accused of any unethical or unprofessional conduct. Respondent has always received good annual performance evaluations. Respondent’s most recent performance evaluations - - for the 2002-03 and 2003-04 school years –- state that she “meets or exceeds expectations” in all categories, including the category that assesses whether Respondent “act[s] in a professional and ethical manner and adhere[s] to the Code and Principles of Professional Conduct.” Consistent with the information in Respondent’s annual performance evaluations, the principal at Avon Park Elementary School, who is Respondent’s current supervisor, testified that Respondent “does a good job” as a teacher and that she values Respondent quite highly as a teacher; the former principal at Zolfo Springs Elementary School, who was Respondent’s supervisor for approximately five of the years that Respondent taught at that school, testified that Respondent’s reputation for complying with the code of ethics is “excellent” and that Respondent always “monitored and cherished” her professionalism; one of Respondent’s co-workers at Avon Park Elementary School testified that Respondent is “a very effective and professional teacher”; and the students who testified at the hearing characterized Respondent as a good teacher. Respondent has administered the FCAT to her students since the test’s inception in the 1990s, and as a result, she is very familiar with what teachers can and cannot do when administering the test. Respondent and other teachers at Avon Park Elementary School received training on the administration of the 2003 FCAT, and as part of the training, Respondent received a copy of the Test Administration Manual for the 2003 FCAT. The Test Administration Manual is published by the state Department of Education (Department) and is distributed to teachers by the testing coordinators at each school. The school-level testing coordinators report to a testing coordinator at the school district level, who is ultimately responsible for the administration of the FCAT to the district’s students. The Test Administration Manual summarizes the “dos and don’ts” of test administration for the FCAT. It also includes a copy of the statute and rule governing test security, which for the 2003 FCAT were Section 228.301, Florida Statutes, and Florida Administrative Code Rule 6A-10.042. On the issue of test security, the Test Administration Manual explains that: it is not appropriate to talk with [students] about any test item or to help them answer any test item. For example, if students finish the test before the allotted time for the session has elapsed, or have not attempted to complete a question, it would be appropriate to encourage them to go back and check their work. It is not acceptable to provide the students with any information that would allow them to infer the correct answer, such as suggesting that they might want to check their work on a specific question. (Emphasis in original). The FCAT is required by state law to be administered annually to public school students in the third through tenth grades to measure the students’ proficiency in reading, writing, science, and math. The FCAT measures the students’ performance against state standards. The Norm Referenced Test (NRT), which is administered in conjunction with the FCAT, measures the students’ performance in math and reading against national standards. The FCAT is an important test, both to students and the schools. The student’s promotion to the next grade and/or class placement is affected to some degree by his or her performance on the FCAT. The school’s grade, which has an impact on the funding that the school district receives from the state, is also affected to some degree by the students’ performance on the FCAT. The math and reading portions of the 2003 FCAT were administered to fifth graders on Monday through Wednesday, March 3-5, 2003. The science portion of the FCAT and the NRT were administered the following week, on Monday through Wednesday, March 10-12, 2003. Throughout the 2002-03 school year, Respondent “taught the FCAT” and gave her class practice FCAT questions. She used the questions as teaching tools and to help prepare her students for the actual FCAT. Respondent would sometimes explain the wording of the practice questions to her students and, as needed, she would provide the students other assistance, both individually and as a class, while they were working on the practice questions. On Friday, February 28, 2003, Respondent administered two practice tests to her students in which she tried to simulate the environment in which the students would be taking the actual FCAT the following week. For example, the tests were timed and Respondent walked around the room as she proctored the tests. Respondent helped the students during the practice tests as she had done with the practice questions administered throughout the year. At one point, she stopped the test and reviewed a math problem on the board with the class because she observed a number of students having problems with a particular question. Respondent administered the math and reading portions of the actual FCAT to 18 students in her homeroom class on March 3-5, 2003. None of those students were exceptional education students who were entitled to special accommodations. Respondent did a 15 to 20 minute “mini-review” each morning that the students were taking the actual FCAT during which she went over terminology and concepts that the students might see on the test that day. Respondent started the administration of the actual FCAT by reading the directions verbatim from the “scripts” in the Test Administration Manual. Once the students began taking the test, she monitored them from her desk and she also walked around the room on a periodic basis. Respondent also went to students’ desks when they raised their hands. The Test Administration Manual contemplates that students might raise their hands and ask questions during the test; indeed, the “scripts” that the teacher is required to read verbatim state more than once, “Please raise your hand if you have any questions.” Respondent denied giving the students any assistance in answering the test questions on the actual FCAT. According to Respondent, when a student asked her about a particular test question, she told the student that “I can’t help you,” “go back and re-read the directions,” “do the best you can,” or other words to that effect. The Department’s testing coordinator, Victoria Ash, testified that responses such as those are acceptable. Respondent also made a general statement to the class during the test reminding the students to go back and check their work if they finished the test before the allotted time expired. Ms. Ash testified that a general reminder such as that is “absolutely acceptable.” Respondent’s testimony was corroborated by student J.M., who credibly testified that he recalled more than once hearing Respondent tell other students that she could not help them during the actual FCAT. Several students testified that Respondent helped them during the actual FCAT by explaining words that they did not understand, explaining how to solve math problems, and/or by suggesting that they check their work on particular problems. That testimony was not persuasive because it lacked specificity and precision, and other than A.P., B.B. (boy), and K.J., the students testified that they were not certain that the help they remembered receiving was on the actual FCAT rather than on the practice tests that they were given by Respondent. With respect to B.B. (boy), the undersigned did not find his testimony persuasive because he also testified that Respondent helped the entire class with a math problem during the actual test, which contradicted the statements given by the other students and which suggests that he was recalling events from the practice test during which Respondent gave such help to the entire class. With respect to A.P. and K.J., the undersigned did not find them to be particularly credible witnesses based upon their demeanors while testifying. There were other inconsistencies in the students’ accounts of Respondent’s administration of the FCAT that make their testimony generally unpersuasive. For example, B.B. (girl) testified that Respondent played classical music during the actual test, which was not corroborated by any other student in the class and was contradicted by Respondent’s credible testimony that she played music during the practice tests to relax the students but that she and the other fifth-grade teachers at Avon Park Elementary School made a conscious decision not to play music during the actual FCAT. As a result of the students’ apparent confusion regarding events occurring during practice tests rather than the actual FCAT, the inconsistencies in the students’ accounts of the events during the administration of the test, the general lack of specificity and precision in the students’ accounts of the events, and Respondent’s credible denial of any wrongdoing, the evidence does not clearly and convincingly establish the truth of the allegations against Respondent. In making the foregoing finding, due consideration was given to the investigation undertaken by the district-level testing coordinator, Rebecca Fleck, at the time of the allegations against Respondent, and the materials generated through that investigation. The reason for the investigation was a phone call that Ms. Fleck received on Wednesday, March 5, 2003, from a Department employee who told Ms. Fleck that the Department had received an anonymous complaint about Respondent’s administration of the FCAT. Ms. Fleck went to Avon Park Elementary School on Friday, March 7, 2003, to investigate the complaint. On that date, she met with the school’s assistant principal and interviewed several of the students in Respondent’s class. She also spoke briefly with Respondent to “get her side of the story,” which consistent with her testimony at the hearing, was an unequivocal denial of any wrongdoing. Ms. Fleck decided, based upon the student interviews, that Respondent should not administer the science portion of the FCAT or the NRT the following week. As a result, Respondent was assigned to work at the school district office on March 10-12, 2003, while her students were taking the tests on those dates. Ms. Fleck also decided to interview and get statements from all of the students in Respondent’s class, which she did on the following Monday and Tuesday, March 10 and 11, 2003. On those days, the students were called to the principal’s office in groups of two or three and they were asked to fill out a questionnaire developed by Ms. Fleck. Pam Burnaham, the principal of Avon Park Elementary School, and Ms. Fleck supervised the students while they filled out the questionnaires. The students were not told that Ms. Fleck was investigating alleged wrongdoing by Respondent; they were told that the purpose of the questionnaire was to find out about their “FCAT experience.” Ms. Fleck testified that she was confident that the students understood that the questionnaire related only to the actual FCAT and not any of the practice tests administered by Respondent; however, Ms. Burnaham testified that she did not place any emphasis on the distinction, and as noted above, the students’ testimony at the hearing indicates that they may have been confused on this issue. Ms. Fleck concluded based upon the students’ responses on the questionnaires that Respondent “coached” the students during the administration of the actual FCAT. As a result, she invalidated the tests of all 18 students in Respondent’s class. Ms. Fleck’s decision to invalidate the students’ tests was not unreasonable based upon what she was told by the students, which she believed to be true; however, the invalidation of the tests is not sufficient in and of itself to impose discipline on Respondent because, as discussed above, the truth of the students’ allegations was not clearly and convincingly proven at the hearing. Several of the students gave written statements to a Department investigator in late May 2003 regarding the help that they recalled being given by Respondent on the FCAT. No weight is given to those statements because no credible evidence was presented regarding the circumstances under which the statements were made, the statements were made several months after the events described in the statements, and as was the case with the questionnaires the students filled out for Ms. Fleck, the undersigned is not persuaded that the students understood at the time they were giving the statements that they were describing events that occurred during the actual FCAT rather than the practice tests that they were given by Respondent. There is no persuasive evidence that any of the students in Respondent’s class whose tests were invalidated suffered any adverse educational consequences. Even though the school administrators did not have the benefit of the students’ FCAT scores for purposes of placement and/or developing a remediation plan, they had other information on which they could make those decisions, including the students’ scores on the NRT, which was administered the week after the FCAT and was not invalidated. Other than being reassigned to the school district office during the administration of the NRT, Respondent did not suffer any adverse employment consequences from the school district as a result of the students’ allegations and/or the invalidation of the students’ tests. To the contrary, Respondent continued to get good performance reviews and her contract has been renewed twice since the administration of the 2003 FCAT. Respondent did not administer the 2004 FCAT because this case was still pending. She was given other duties at Avon Park Elementary School while her students were taking the 2004 FCAT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2005.