The Issue The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida Administrative Code Rule 6B-1.006, as alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the field of mathematics, and has been issued Florida Educator’s Certificate No. 130749. This certificate is valid through June 30, 2011. At all times pertinent hereto, Respondent was employed by the Duval County School Board as a sixth-grade mathematics teacher at Twin Lakes Academy Middle School in the Duval County School District. Respondent has been a teacher for over 40 years and has taught mathematics at Twin Lakes Academy Middle School for six years. On March 7, 2008, Respondent signed an “FCAT Administration and Security Agreement.” By signing the security agreement, Respondent acknowledged that he had read the 2008 FCAT SSS Reading, Mathematics, and Science Test Administration Manual, and that he would administer the FCAT exam in accordance to procedures stipulated in the manual. Page 30 of the manual stated in bold print that Respondent “may not . . . discuss test items or answers with students, even after all test materials have been returned.” By signing the FCAT Administration and Security Agreement, Respondent promised to avoid the following prohibited activities: Reading the passages, test items, or performance tasks; Revealing the passages, test items, or performance tasks; Copying the passages, test items, or performance tasks; Explaining or reading test items, or passages for students; Changing or otherwise interfering with students responses to test items; Causing achievement of schools to be inaccurately measured or reported; Copying or reading student responses. By signing the security agreement, Respondent agreed to abide by Florida Administrative Code Rule 6A-10.042, and Section 1008.24, Florida Statutes, and acknowledged in part: The security of all test materials must be maintained before, during and after the test administration... * * * I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported. In March 2008, after signing the security agreement, Respondent administered the FCAT to his sixth-grade mathematics class. The day after administering the FCAT, Respondent asked the students in each of his five classes to write down questions they could remember from the FCAT. The testimony varied as to whether the requested information was limited to questions they did not understand, a single question, or simply questions and answers. However, it is clear that the requested information stemmed from the FCAT administration the previous day. Respondent collected the students’ written responses immediately after, with the intention of reviewing the students’ responses at a later date. There is no competent, persuasive evidence that Respondent intended to share the questions with anyone. After collecting the students’ written responses, Respondent placed them in a folder and then placed the folder in his personal briefcase to be taken home and locked in his private safe. Shortly thereafter, the school principal, Mr. Donald Nelson, received an email from a parent who is also a teacher at Twin Lakes Elementary School, stating that a security violation may have occurred with respect to the FCAT. Mr. Nelson immediately called Professional Practices and questioned the Respondent about the incident. In addition, he retrieved the folder with the students’ questions from Respondent. An investigation was conducted by Mr. Leroy Starling, an investigator for the Duval County School District, Mr. Nelson, and Mr. John Williams, the Director of Professional Standards for the school district. Randomly selected students were questioned individually, and students’ written responses as well as two letters written by the Respondent to Mr. Nelson were reviewed. As a result of the investigation, on April 4, 2008, Respondent was issued a letter of reprimand and suspended for ten days without pay. Respondent continued to teach his sixth-grade mathematic class during the ten days that he was suspended, despite the fact that he was not being paid to do so. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for the Florida Department of Education, testified that the FCAT is used as part of the accountability system for the state. The results from the FCAT results are used to determine if schools have made an adequate yearly progress, to assign school grades and to measure each student’s level of achievement. Ms. Ash further testified that due to the three-year process in developing test questions, selected questions are frequently re-used on the FCAT. As a result, pursuant to the FCAT security agreement, teachers are warned not to “check through books and return them to students after they have been collected or discuss test items or answers with students even after all test materials have been returned and testing has been completed because some items may be used on future tests.” There is no evidence presented that student achievement was inaccurately reported or misrepresented as a result of this incident. There is also no evidence that any of the questions on the FCAT were discarded or that any test scores were invalidated as a result of the incident. Respondent has received consistent excellent teaching reviews and has never been reprimanded before this incident. There is no evidence that Respondent acted inappropriately in any manner during the actual administration of the FCAT.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of March, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2010.
The Issue The issues are whether the intended contract awarded to Intervenor, The Henry and Rilla White Foundation, Inc. (Intervenor or White), pursuant to Request for Proposals #P2062 (RFP) for an Intensive Delinquency Diversion Services (IDDS) program in Palm Beach County, Florida (Circuit 15), is contrary to Respondent’s governing statutes, policies and rules, and the RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or JSP), timely challenged the intended award, and alleged that the award to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency for this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. Intervenor is a not-for-profit corporation duly organized under the laws of the State of Florida. On November 23, 2009, Respondent issued the RFP to select a provider to operate IDDS programs in multiple counties, multiple circuits, within Florida. Petitioner did not protest the specifications of the RFP within 72 hours of the issuance of the RFP. Petitioner and White submitted timely responses to the RFP. Both sought the award for Circuit 15. On or about March 5, 2010, the Department posted its NOAA and informed all parties of its intent to award the contract at issue to Intervenor. The NOAA ranked White, first, with 1549.78 points; JSP, second, with 1451.34 points; and Urban League of Palm Beach, Inc., third, with 862.58 points. Petitioner filed a formal protest of the intended award to White on March 15, 2010. Thereafter, representatives from Petitioner and Respondent met to attempt resolution of the protest, but were unsuccessful. As the case moved forward to trial, White petitioned to intervene as the first ranked proposer. It is uncontested that White and JSP have standing in this matter. Throughout these proceedings, Petitioner maintained that Respondent scored the proposals contrary to the specifications of the RFP. Additionally, Petitioner claimed that the persons appointed to evaluate the proposals for the award did not have the requisite experience and knowledge in the program areas, and service requirements sufficient to score the proposals. Under the RFP, three components were to be scored by the evaluators: a technical section; a financial section; and a past performance section. A team of three evaluators independently scored the proposals submitted. Department program area managers selected the evaluators, who were then approved by the Department’s Deputy Secretary. All evaluators were trained in the evaluation process. In order to assure that appropriate employees are selected to serve as evaluators, Amy Johnson, Respondent’s chief of contracts, created a spreadsheet to identify those employees who are qualified to evaluate different types of procurements. The spreadsheet notes which program service area each employee is approved to serve. All of the evaluators in this case were chosen and deemed credentialed by Respondent to evaluate the subject RFP. In this case Karen McNeal, Jeffrey Balliet, and Cheryl Surls were selected and approved to evaluate the responses to the RFP. Ms. Johnson insured that the evaluators were trained to perform their duties. In this regard, Ms. Johnson reviewed the rules of the evaluation process and a generic evaluation with each of the evaluators. Training for the evaluators included how to score, along with sample scoring sheets. Although Ms. McNeal had not served as an evaluator prior to this case, she was appropriately trained and instructed in the methodology and guidelines for scoring proposals. Further, her job training and experience assured that she was familiar with IDDS program services. Mr. Balliet has served as an evaluator for proposals for approximately ten years. Mr. Balliet was appropriately trained and instructed in the scoring process. Additionally, Mr. Balliet’s work experience also qualified him to evaluate the IDDS proposals encompassed within the RFP responses. Finally, Ms. Surls has been familiar with the programs and services of IDDS for several years. She also completed RFP evaluation training prior to being placed on the spreadsheet list of potential evaluators. On January 11, 2010, Elaine Atwood, the procurement officer for the instant RFP, conducted a conference call with the evaluators for this case. All of the evaluators were familiar with the IDDS program and were provided an opportunity to ask Paul Hatcher, the author of the scope of services for this RFP, any program question regarding IDDS and/or the RFP. The Evaluation Team Ground Rules and Instruction specified that the evaluators were to read, evaluate, and score the proposals based upon the scoring sheet matrix. The evaluators were directed not to speak to other evaluators, nor to consider any information from any source other than the information provided within the proposal itself. If any evaluators were to require assistance, he or she was instructed to contact Ms. Atwood. All scoring was to be done based upon the solicitation document and the proposal submitted. The matrix for scoring assigned a score from 0 to 5 depending upon how well the proposal addressed the specification requirement. A score of 5 constituted the highest rating, and only those proposals that exceeded all technical specifications and requirements for the service component specified, with innovative, comprehensive, and complete detail were to receive that score. A score of 0 would be assigned when the proposal did not address the service component specified, or the evaluator could not locate the information in the proposal necessary to use another rating number. Petitioner maintained that one evaluator, Ms. McNeal, failed to follow the directions related to changes to scoring. It is concluded that Ms. McNeal adequately marked the score sheet, such that there was no confusion as to the score awarded, or the time of its entry. Contemporaneous with an initial score of “5” for the category “Management Capability,” Ms. McNeal re-marked the JSP score to a “4.” Similarly, Ms. McNeal re-marked the JSP score for the category “Consideration 1" from “5” to “4.” Any “change” occurred in the matter of moments that it took for Ms. McNeal to re-mark the score sheet, and did not indicate a reflection or after-thought of “change.” If anything, the “change” was to correct an error of marking. Ms. McNeal’s testimony as to the marking of the score sheet and her rationale for re-marking it has been deemed credible. Any deviation from the instructions as to a requirement that “change” must be documented is deemed minor or insignificant. Documenting a “change” is deemed minor and insignificant in this case, because the notation for the score of “4” was contemporaneous with the initial mark and not a later after- thought. Petitioner also challenged Ms. Surls’ award of the score “3” to all of JSP’s categories. Petitioner maintained that such an award demonstrated a lack of understanding regarding the subject matter addressed. To the contrary, Ms. Surls also awarded the score of “3” to White. The only category that exceeded “3” on Ms. Surls scoring of White was "Behavioral Management," for which Intervenor received a “4.” Ms. Surls was consistent and thorough in her review of the proposals and commented appropriately as to the basis for each score. The Technical Proposal narrative submitted by White did not exceed sixty pages. Petitioner did not contest scoring where an evaluator increased JSP’s score without comment. None of the alleged “changes” to scoring gave any proposal an unfair advantage. All proposals were given the same consideration and thoughtful review. The Department has used RFPs to cover multiple circuits in numerous instances. Petitioner did not timely challenge the process of providing for proposals for multiple circuits. Moreover, no evidence supports a finding that the process of covering multiple circuits within one RFP is inherently flawed or contrary to law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Juvenile Service Program. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011. COPIES FURNISHED: Tonja White Mathews, Esquire Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Andrea V. Nelson, Esquire Walter Kelly, Esquire The Nelson Law Firm, PLC 1020 East Lafayette Street, Suite 214 Tallahassee, Florida 32301 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Secretary Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Jennifer Parker, General Counsel Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue The issue is whether just cause exists for Petitioner to suspend Respondent from her teaching position without pay for 15 days and to terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33, Florida Statutes. Respondent has been employed by Petitioner as a teacher with Petitioner since 2005. During the relevant timeframe, the 2015-2016 school year, Respondent was employed as a teacher at Citrus Cove Elementary School ("Citrus Cove"), where she taught third grade. Respondent has not previously been subject to discipline by Petitioner. The evidence shows that she consistently received satisfactory performance evaluations. Administrative Charges On or about January 11, 2017, Petitioner took action to suspend Respondent for 15 days without pay and to terminate her employment as a teacher. Respondent timely challenged Petitioner's action by requesting an administrative hearing pursuant to sections 120.569 and 120.57(1). The Amended Petition alleges that on or about March 31, 2016, Respondent breached testing security for the Florida Standards Assessment ("FSA")1/ by giving assistance to students who were taking the exam. The Amended Petition listed the actions in which Respondent is alleged to have engaged in assisting the students: pointing to wrong answers; giving a "thumbs up" for right answers; tapping on the desk to indicate wrong answers; rubbing students on the back to indicate corrected answers; stating what question the students should be on, or words to that effect; telling students that their answers were wrong, or words to that effect; telling students that their answers were good or bad, or words to that effect; telling students which math strategies to use for certain questions, or words to that effect; telling students to bubble in when not done when the test was finished; and/or whispering to students during the test. The Amended Petition also alleges that Respondent reviewed test questions with the students after the exam period was over. Based on these alleged actions, Petitioner has charged Respondent with violating specified provisions of the following: sections 1008.24(1) and (2) and 1008.36, Florida Statutes; Florida Administrative Code Rules 6A-10.042 and 6A-10.081; School Board Rule 1.013; and School Board Policy 3.02. If proved, the alleged violations of these rules and policies would constitute just cause under section 1012.33 to suspend Petitioner and terminate her employment as a teacher. The FSA The FSA is the state-wide student assessment program examination that is administered in Florida public school districts. See § 1008.22, Fla. Stat. (2015).2/ As a public school district in Florida, the District is required to administer the FSA in the schools in its district. Id. The FSA for the third grade consists of a mathematics assessment and an English Language Arts ("ELA") assessment. § 1008.22(3)(a), Fla. Stat. For the 2015-2016 school year, the FSA was administered to third grade students at Citrus Cove on March 29 through April 1, 2016. The evidence establishes that the ELA portion of the exam was administered on March 29 and 30, and the mathematics portion of the exam was administered on March 31 and April 1. It is vitally important that a student's FSA scores accurately reflect the student's actual performance on the exam. To that point, if a student received a score that was artificially inflated due to having received assistance on the exam, the student may wrongly be promoted to the next grade, rather than receiving needed academic assistance to enable him or her to develop the skills necessary for promotion. To ensure that the FSA is correctly administered, all teachers receive mandatory training in correct administration of the exam. In compliance with this requirement, the teachers at Citrus Cove, including Respondent, received training in administering the FSA for the 2015-2016 school year. The evidence establishes that Respondent attended an FSA administration training session conducted at Citrus Cove on or about March 11, 2016. At the training session, teachers, including Respondent, were shown a PowerPoint slide on administering the FSA. Afterward, Respondent received a copy of this presentation to review. Also at that session, Respondent received the Spring 2016 FSA Paper-Based Test Administration Manual for Grade 3 ELA Reading and Grades 3-4 Mathematics ("FSA Manual"), which was published by the Florida Department of Education. Page nine of the manual lists examples of prohibited activities; this list includes changing or otherwise interfering with student responses to test items. Respondent also received the Test Administrator Prohibited Activities Agreement at the session. This agreement informs the person administering the FSA that he or she may not engage in certain activities listed on the agreement. These prohibited activities include assisting students in answering test questions or giving students verbal or non-verbal cues. Respondent acknowledged that she received this agreement on March 11, 2016, by signing and dating the document. Respondent also received the Test Administration and Security Agreement, which lists additional activities that are prohibited in administering the FSA. These activities include changing or otherwise interfering with student responses to test items. Respondent acknowledged that she received this agreement on March 11, 2016, by signing and dating the document. On or about March 28, 2016, Respondent received a copy of a PowerPoint presentation titled "Spring 2016 PBT Grade 3 Reading and Grades 3 and 4 Mathematics – Student Presentation." She was required to review this presentation with her students before the FSA was administered.3/ Beginning in the 2015-2016 school year, teacher performance evaluations are based, in part, on Student Performance Rating on the FSA, using the Value-Added Model ("VAM"). Under this evaluation method, each teacher to whom this evaluation method applies——which includes Respondent——receives a "VAM Score" reflecting the performance ranking of his or her students on the mathematics and ELA portions of the FSA. The VAM Score constitutes 33 percent of the teacher's total performance evaluation. The credible and persuasive evidence establishes that teachers may be entitled to receive monetary bonuses if their students perform well on the FSA. The evidence establishes that Respondent is experienced in administering standardized tests to students over the years in which she taught in public schools. Investigation Leading to Administrative Charges At some point after the FSA had been administered at Citrus Cove in the 2015-2016 school year, a student, Z.C.-B., who had been in Respondent's third grade class and taken the FSA administered by Respondent, transferred to another elementary school in the Palm Beach County School District. Spurred by comments that Z.C.-B. made to her classroom teacher at the school to which she had transferred, Petitioner's Office of Professional Standards conducted an investigation into whether Respondent had assisted students during administration of the 2015-2016 FSA, in violation of applicable testing standards and protocols. While the investigation was being conducted, Respondent was removed from the classroom and was reassigned to non- instructional duties. As a result of the investigation, Respondent was notified, by correspondence dated December 12, 2016, that the Superintendent for the District would recommend that she be suspended without pay for 15 days and that her employment be terminated. As noted above, Respondent timely requested an administrative hearing pursuant to sections 120.569 and 120.57(1). Evidence Regarding Respondent's Administration of the FSA Several students who had been in Respondent's third grade class in the 2015-2016 school year and to whom Respondent had administered the FSA that school year testified at the final hearing regarding whether Respondent had engaged in certain conduct or actions during administration of the FSA. Student L.W. Student L.W. testified that while she was taking the FSA, Respondent patted her on the back and whispered "good job" to her. L.W. testified that she interpreted this comment as meaning that she had gotten the question correct. L.W. also testified that Respondent made a "thumbs-up" gesture over her exam paper while standing next to L.W.'s desk. L.W. interpreted that gesture as meaning that she was doing well on the exam. L.W. could not recall how many times Respondent gave her a thumbs-up. L.W. testified that during the administration of the test, Respondent also told the students what question they should be on at that particular point in the exam period, and that Respondent told the students that if they had not yet reached that question, they needed to speed up in answering the questions. L.W. also testified that Respondent told the students when they had ten minutes left in the exam period. L.W. testified that when the math portion of the exam was over, Respondent reviewed some math problem examples with the class, and that the examples she reviewed were very similar to those on the exam. L.W. testified that Respondent did not help her answer the questions on the exam. L.W. testified that "testing boards,"4/ consisting of cardboard barriers erected around a portion of the writing surface of the desk, were used in Respondent's classroom during administration of the FSA. L.W. also recalled that paper had been placed over the window in Respondent's classroom door. She testified that she recalled the math portion of the FSA being administered before the reading portion was administered. Student R.T. R.T. testified that during the administration of the FSA, he saw Respondent whisper to other students who were taking the exam. He testified that he saw Respondent give a "thumbs up" signal to the students while she was walking around the room monitoring the exam, and that she gave him a "thumbs up" sign while standing by his desk. He testified that he interpreted that signal to him as meaning he was doing "a great job" on the exam. R.T. did not remember Respondent stating that the students should be on a specific question at that particular point in the exam period, or Respondent telling the students to speed up or to slow down in answering the questions. He testified that Respondent did not allow the students to fill in answers after the time period for the exam had ended. He also testified that Respondent did not check his answers during the exam or tell him he should change any particular answer on the exam. R.T. testified that Respondent did not do anything to help him cheat during the exam. R.T. testified that testing boards were not used during administration of the FSA. He did not recall whether paper had been placed over the window in the classroom door during administration of the FSA. Student M.R. M.R. testified that Respondent pointed to an answer on her FSA exam paper one time, and that Respondent touched the exam paper when she did so. M.R. interpreted this as indicating whether the "question was right or wrong." She testified that in response to Respondent's action, she changed the answer. M.R. testified that Respondent gave her a "thumbs up" signal while she was standing next to M.R.'s desk, and that M.R. interpreted this gesture as meaning "the question was right." M.R. did not recall whether Respondent stated that students should be on a specific question at that particular point in the exam period; however, she testified that she did recall Respondent telling students that they should slow down. M.R. testified that she recalled Respondent reviewing questions with the class after the exam was over. She did not recall the specific questions or how many questions Respondent reviewed with the class. M. R. also testified that testing boards were used in administration of the FSA. She did not recall whether the window in the classroom door was covered with paper during administration of the FSA. Student S.T. S.T. testified that Respondent whispered to her during the math portion of the FSA that she was "supposed to correct something and go back and check my test," and that Respondent pointed to a particular question on S.T.'s exam paper. In response to Respondent's action, S.T. went back and checked her answer to the question, then changed the answer. S.T. testified that Respondent did this for "one or two" questions. S.T. also testified that she saw Respondent whispering to another student during the exam. S.T. testified that during the math portion of the exam, Respondent told students that they should be on a specific question at that particular point in the exam period. She did not recall whether Respondent also did this during the reading portion of the exam. Additionally, S.T. testified that during the exam, Respondent told the students "if you speed you will make mistakes and you should go back and check it again." S.T. also testified that after the math portion of the exam was over, Respondent reviewed a particular question from the exam involving a "whole fraction." S.T. recalled Respondent giving the class a "thumbs-up" after the exam to compliment them. She did not see Respondent give individual students a "thumbs-up" during the exam. S.T. testified that Respondent did not rub her back, and that she did not see Respondent rub any other student's back during the exam. S.T. did not recall whether testing boards were used during administration of the FSA. She testified that the window in the classroom door was not covered with paper. Student J.W. J.W. testified that during the exam, Respondent tapped on students' desks "if they were like staring off into space." She estimated that Respondent did this with respect to approximately six students. J.W. also testified that during the exam, Respondent verbally told the students to slow down "because you might do better if you go slow." She testified that during the math portion of the exam, Respondent told the students that they should be on a specific question "around a certain time." She also testified that at certain points during the math portion of the exam, Respondent had students raise their hands if they were on a particular question; according to J.W., Respondent did this "like four times." J.W. testified that at the end of the math portion of the exam, Respondent allowed students to go back and fill in answers to questions they had not completed. J.W. testified that after the exam, Respondent did not review questions with the class. J.W. did not see Respondent give a "thumbs-up" at any time. She also did not see Respondent read or touch any student's exam paper. J.W. testified that Respondent did not help her answer questions on the exam. She did not recall Respondent rubbing any students on the back or patting them on the head. J.W. testified that testing boards were not used in Respondent's classroom in administering the FSA, and that there was no paper covering the window in the classroom door. Student H.S. H.S. testified that during the math portion of the FSA, Respondent pointed to a question and told her to go back and check it. H.S. testified that in response, she changed her answer, and that Respondent gave her a "thumbs-up" and whispered "good." H.S. also testified that at the end of both the reading and math portions of the FSA, Respondent told the students to fill in answers to questions they had not finished. H.S. testified that Respondent did not tell students to raise their hands during the exam. H.S. could not remember if testing boards were used in administering the FSA, and she could not recall whether the window in the classroom door was covered with paper. Student T.B. T.B. testified that during the test, Respondent helped him answer a question by pointing to a sentence, and "when I flipped the page, the sentence was for an answer." He clarified that when he flipped the page of the exam, he saw another answer so "I changed it because I had the wrong one." He interpreted Respondent's action as indicating that he had gotten the question wrong, so he changed his answer. T.B. also testified that Respondent told the students during both portions of the exam that they should be on a specific question at that particular point in the exam period. He testified that Respondent also told them if they were going too fast, they needed to slow down. T.B. testified that testing boards were used in Respondent's classroom during administration of the FSA. He could not recall whether paper covered the window in the classroom door during the administration of the exam. Student A.S. A.S. testified that Respondent pointed to her exam paper and that in response, she went back and revised one of her answers on the math portion of the exam. A.S. also testified that during the exam, Respondent told the students the specific question they should be on at that particular point, and if they were not on that question, they needed to speed up or slow down. A.S. testified that in response, she sped up and finished her exam on time. A.S. also testified that after the exam period was over, Respondent told students to go back and fill in answers to questions they had not finished. A.S. testified that testing boards were used in Respondent's classroom during administration of the FSA, and that paper covered the window in the classroom door. Student S.G. S.G. testified that during the exam, Respondent told the students that they should be on a specific question at that particular point in the exam. S.G. was unable to recall many details about the 2015- 2016 FSA exam or its administration. Respondent As discussed above, the investigation that gave rise to this proceeding was initiated after one of Respondent's former students, Z.C.-B.,5/ apparently communicated that Respondent had engaged in certain conduct during administration of the 2015-2016 FSA that, if true, would violate the statutes, rules, and policies regarding administration of the FSA. Respondent offered a possible motive for Z.C.-B.'s statements. She testified that she had been asked by Z.C.-B.'s parents to provide information on a Social Security Supplemental Security Income ("SSI") application form regarding Z.C.-B.'s performance in school. Respondent stated on the form that in her view, Z.C.-B.'s school performance was "fine." Respondent surmised that because of her assessment of Z.C.-B.'s academic performance, Z.C.-B.'s family may not have qualified to receive SSI payments, so may have harbored ill will against her. She acknowledged that Z.C.-B.'s parents did not communicate to her that they "had a problem" with her statements on the SSI form. Respondent testified that she did not believe she violated any testing protocols established by statute, rule, or policy in administering the 2015-2016 school year FSA. She testified that she did not assist any students in answering any of the 2015-2016 FSA test items. She testified that she did not linger at any student's desk long enough to read the FSA exam questions, and that she did not read the questions or know any questions on the exams in advance of administering them. She also denied giving any non-verbal cues to the students during administration of the exam, other than generally giving them a "thumbs-up" to relax them and keep them on task. She did not recall whether she had given any students any verbal cues during the exam. She denied telling the students to speed up, slow down, or raise their hands if they were on a specific question at a particular time during the exam. She denied changing any of the students' answers on the exam. She testified that she did not recall tapping on any student's desk, but stated that if she had, it would have been to re-focus the student's attention to taking the exam. She also denied having reviewed the questions on the 2015-2016 FSA exam with the students after it had been administered. Respondent testified that she did not use testing boards during the administration of the FSA.6/ She testified that the window in the classroom door was partially covered with paper and a magnetic frame containing a sign indicating that testing was being conducted. Progressive Discipline The Collective Bargaining Agreement between the Palm Beach County School District and the Palm Beach County Classroom Teachers Association (July 1, 2015 – June 30, 2016)("CBA"), titled "Discipline of Employees (Progressive Discipline)," article II, section M, establishes a disciplinary system under which discipline is administered "progressively." Under this system, discipline is imposed sequentially, beginning with a verbal reprimand with written notation; then advancing to a written reprimand; then advancing to suspension without pay; and culminating in termination of employment. This sequential imposition of discipline applies "[e]xcept in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations" as to warrant deviating from the sequence. CBA, art. II, § M., ¶ 7. (emphasis added). As noted above, Respondent has not previously been subject to discipline. However, she is an experienced teacher who previously administered standardized tests to students over her years of teaching. Further, and most important, Respondent received extensive training in the proper administration of the 2015-2016 FSA. Additionally, she received, and was charged with reviewing, understanding, and following, the FSA Manual, the Test Administrator Prohibited Activities Agreement, and the Test Administration and Security Agreement——all of which expressly prohibited engaging in conduct that constituted assisting students in answering test questions, giving students verbal or non-verbal cues, or interfering with students' responses on the exam. Under these circumstances, it is determined that Respondent's conduct constituted a clearly flagrant and purposeful violation of Petitioner's rules and regulations. 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). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). 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. Petitioner has met its burden in this proceeding to show, by clear and convincing evidence, that Respondent engaged in conduct with which she was charged in the Amended Petition. Nine students testified at the final hearing. All of them described various actions on Respondent's part that, as described, violated established FSA administration protocol. Even though the students' descriptions of Respondent's conduct in administering the FSA were not uniformly consistent, the undersigned finds the students to be credible and persuasive witnesses. The undersigned ascribes the discrepancies in the students' testimony——which, on balance, concerned minor or collateral details7/——to the fact that the students were testifying about events that had occurred approximately one year earlier, and also because not all of the students had the same interactions with Respondent during the FSA. Key to this credibility determination is that many of the students' testimonial descriptions were precise and explicit, and were strikingly similar and remarkably consistent regarding certain conduct in which Respondent is alleged to have engaged. Specifically, several students testified, credibly, that during the exam, Respondent pointed to questions on their exam papers or touched their exam papers. Some of the students perceived her actions as a prompt or cue, and in response, changed an answer. Several students also credibly testified that during the exam, Respondent whispered to them about a question or response, saying "good job" or indicating that they should check an answer. Some students saw Respondent whisper to other students in the class during the exam. Additionally, several students credibly testified that Respondent verbally paced the class by telling them, during the exam, that they should be on a specific question at that particular time, or that they should slow down or speed up in answering the questions. Some students also credibly testified that after the exam period was over, Respondent allowed students to fill in answers to questions they had not finished. Several students testified that they saw Respondent give a "thumbs up" during the exam. Some students credibly testified that Respondent specifically made that gesture to them, and that they interpreted the gesture as meaning they were doing a good job or that they had answered a particular question correctly. One student also credibly testified that Respondent rubbed her back during the exam, which she interpreted as indicating that she had answered a question correctly. As discussed above, Respondent denied having engaged in the conduct alleged in the Amended Petition, other than generally giving a "thumbs up" during the exam to relax the students. Although Respondent denied having engaged in the conduct alleged in this proceeding, it is determined that the evidence in the record clearly and convincingly establishes that in administering the 2015-2016 FSA, Respondent engaged in certain conduct alleged in the Amended Petition. Specifically, the evidence clearly and convincingly shows that Respondent engaged in the following conduct: pointing to wrong answers; giving a "thumbs up" for the right answer; rubbing students on the back to indicate that an answer had been corrected; telling students that their answer was wrong, or words to that effect; telling students their answer was good or correct, or words to that effect; telling students to bubble in answers if they were not finished when the exam period was done; and whispering to students during the exam. As further discussed below, these actions violate the following statutes, rules, and policies: section 1008.24(1)(c), (f), and (g), Florida Statutes8/,9/; Florida Administrative Code Rule 6A-10.042(1)(c), (d), and (f); Florida Administrative Code Rule 6A-10.081(1)(b) and (c), (2)(a)1., (2)(b)2., and (2)(c)1.; Florida Administrative Code Rule 6A-5.056(2); School Board Rule 1.013(1); and School Board Policy 3.02.4.a., b., g., and j. and 3.02.5.c.iii. and 5.i.10/ As discussed below, Respondent's conduct in violating rule 6A-10.081 and Petitioner's policies also constitutes misconduct in office under rule 6A-5.056. Based on the foregoing, the undersigned finds, as a matter of ultimate fact, that there is just cause, as defined in section 1012.33, to suspend Respondent without pay and to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order suspending Respondent, Ilissa Sanders, without pay for 15 days and terminating her employment. DONE AND ENTERED this 24th day of July, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2017.
Findings Of Fact The underlying case for which attorneys fees in the undisputed amount of $2,775.00 are sought involved a 1992 application by Union Trucking, Inc. for recertification by the Florida Department of Transportation (FDOT) as a disadvantaged business enterprise (DBE). Union Trucking, Inc. had originally been certified by FDOT in 1988, and upon successive applications for certification, had been recertified by FDOT in 1989, 1990 and 1991. Recertification was applied for on July 20, 1992 and denied on December 14, 1992. A request for formal hearing followed on January 15, 1993 and the case proceeded before the Division of Administrative Hearings (DOAH) until FDOT recertified Union Trucking, Inc. on October 15, 1993. On November 17, 1993, DOAH hearing officer P. Michael Ruff entered an order relinquishing jurisdiction, which resulted in FDOT's December 17, 1993 final order. FDOT's final order was entered on the grounds that certification had been granted, did not alter the recertification terms, and dismissed the request for formal hearing. On February 14, 1994, less than sixty days after entry of the FDOT final order, Petitioner filed its original "Application for Award of Attorneys Fees Pursuant to F.S. 57.111," hereafter "petition." On March 2, 1994, FDOT filed a response, which, although no motion to dismiss was filed, addressed assorted insufficiencies of the petition. FDOT's response did not raise any timeliness bar. An order of dismissal with leave to amend within fifteen days was entered by the undersigned hearing officer on April 21, 1994. The amended petition was filed May 11, 1994, and FDOT filed its response on May 26, 1994, still not asserting any timeliness bar. At formal hearing, the parties stipulated that the only issue for consideration was whether or not FDOT had been substantially justified in denying the 1992 recertification. Otherwise, it was undisputed that Petitioner is a small business party; that FDOT was not merely a nominal party; that the employment, amount of fee, and hours worked by Petitioner's counsel were as stated in the pleadings, and that there were no "unusual circumstances" as contemplated within the applicable statute and rule. The undersigned hearing officer suggested that the parties include in their post-hearing proposals arguments directed to timeliness, vel non, of the attorney's fee and costs petition, and thus, whether or not DOAH has jurisdiction of this case. With regard to the "substantial justification" issue, it is necessary to review the DBE process since 1991. Union Trucking, Inc.'s 1991 application for recertification was received by FDOT on April 30, 1991. Documents submitted to FDOT by Union Trucking, Inc. in conjunction with the 1991 application revealed that Petitioner corporation had undergone an ownership change on April 1, 1991, approximately 29 days prior to submittal of the 1991 application, which ownership change had transferred 49 percent of Union Trucking, Inc.'s corporate stock from Denise Willis to Robin P. Wilson; that the new owner, Robin P. Wilson, did not list any employment on her resume other than at Pritchett Trucking, Inc.; that Union Trucking, Inc. had a business relationship with Pritchett Trucking, Inc.; and that the new 49 percent owner of Union Trucking, Inc., Robin P. Wilson, is the daughter of Marvin Pritchett, owner of Pritchett Trucking, Inc. Marvin Pritchett is a white American male. Robin Pritchett Wilson is a white American female. Denise Willis, who previously owned the 49 percent of Union Trucking, Inc. stock which was transferred to Robin Wilson is also a white American female, and the stepdaughter of Marvin Pritchett. From Union Trucking, Inc.'s inception and at all times material, 51 percent of Union Trucking, Inc.'s stock has been owned by Warren Lee, a black American male. At all times material, Union Trucking, Inc. has been 100 percent owned by disadvantaged classes (female and black). At all times material, FDOT did not break down its disadvantaged certifications as to "black" versus "female" for purposes of categorizing DBE status, but only looked to whether or not at least 51 percent of the stock was owned by a member(s) of a disadvantaged class. FDOT has no rule specifically requiring that all owners work in the business, only that day to day control be in the hands of the disadvantaged class. FDOT conducted an on-site visit to Union Trucking, Inc. on July 22, 1991, at which time FDOT requested additional information as to Robin Wilson's employment with Union Trucking, Inc. and was notified that Robin Wilson spent approximately one to two hours per day working for Union Trucking, Inc. FDOT also inquired about Union Trucking Inc.'s business relationship with Pritchett Trucking, Inc. and received the explanation that the relationship was "like any lease owner with the company they lease with." DBE personnel at FDOT did not understand what this response meant, but they did not inquire further in 1991. Instead, the FDOT DBE certification committee voted to recertify Union Trucking, Inc. with a special monitor, because there were undefined "concerns" and unidentified "feelings" about the eligibility of Union Trucking, Inc. At formal hearing, FDOT personnel were very clear that recertification in 1991 with a "special monitor" meant that when Union Trucking, Inc. came up for recertification in 1992, an on-site review must be conducted. Prior to receiving Union Trucking, Inc.'s July 20, 1992 application for recertification, FDOT was notified by the Department of General Services (DGS) that DGS also had "concerns" about Union Trucking, Inc. On September 10, 1992, DGS notified FDOT that DGS had denied Union Trucking, Inc.'s application to DGS for Minority Business Enterprise (MBE) certification, that the DGS denial had been upheld at a DOAH hearing, and that FDOT would be provided a copy of the DOAH hearing officer's recommended order. FDOT subsequently received a copy of that recommended order which had been entered September 9, 1992. FDOT's Minority Programs Office Manager testified that, in his opinion, the recommended order in the DGS case (Exhibit DOT 9) "verified" the FDOT "concerns" expressed during the 1991 FDOT recertification process, but he defined those concerns as independent financing. The FDOT DBE certification committee chairperson testified that the recommended order addressed concerns expressed during the 1991 FDOT recertification process, but he defined the concerns differently, as lack of independency from familial relationships, i.e. control, and financial relationships of family corporations. Both men considered FDOT's and DGS' rules to be substantially similar. In fact, the September 9, 1992 recommended order to DGS involved a different agency (DGS) than FDOT, a different statute (Section 287.0943 F.S.) than the one authorizing FDOT's DBE program and different rules (Rules 13A- 2.005(4)(a) and (b) and 13A-4 F.A.C.) than the ones administered by FDOT. FDOT is required to operate under Section 337.135 F.S. and administer Rules 14-78.002 and 14-78.005 F.A.C. Also, the recommended order focused on a legal conclusion that Union Trucking, Inc. was financially dependent, or at least at the time of its corporate "start-up" in 1986 was financially dependent, upon Pritchett Trucking, Inc. The recommended order stated, in pertinent part, as follows: . . . co-owner of the applicant is Pritchett's daughter and a natural subject of his goodwill and generosity, such a relationship is prohibited by the statute, [referring to Section 287.0943 F.S.] Similarly, her service as a director of Pritchett corporation, carrying on Union's business from her desk at Pritchett Trucking is natural, but estab- lishes a prohibited relationship. [Bracketed material added her for clarification]. Upon receipt of the DGS recommended order, FDOT did not seek further explanatory information from the applicant, as was FDOT's standard procedure under its normal operation. Further, FDOT did not follow its own specially prescribed procedure for certified DBEs with "special monitor" status, in that FDOT did not conduct a new 1992 on-site review. Instead, two months later, FDOT sent its December 14, 1992 denial letter. The FDOT employee who prepared the letter testified that the letter denial was based on her review of all the information already in FDOT's DBE file on Union Trucking, Inc., upon the audio tape of the old 1991 on-site review interview, and upon corporate records of the Secretary of State. The FDOT letter, however, closely tracked the DGS recommended order but denied recertification by FDOT on the basis of FDOT Rules 14-78.005(7)(c)1. and 2.c. and 14-78.005(7)(a) F.A.C. It also stated that Union Trucking, Inc. was not an independent business entity or a small business concern and that there was an "affiliate" relationship under FDOT rules due to "Susan [sic] Wilson." It renamed Robin Wilson and also extrapolated a great deal of financial information that appears to come directly from the DGS recommended order. As a result of FDOT's denial of its 1992 recertification application, Union Trucking, Inc. requested a formal hearing. During the progress of that case before DOAH, FDOT received a copy of an affidavit by Robin Wilson in which she stated that Union Trucking, Inc. only purchased parts and fuel from Pritchett Trucking because Pritchett's Lake Butler terminal was the least expensive and most convenient source. Ms. Wilson also stated that Union Trucking, Inc. had not received any loans from her father's companies in four to five years, and that there were no current outstanding loans. In an effort to negotiate the issues and resolve matters without formal hearing before DOAH, FDOT finally conducted an on-site review in July 1993. Documentation was provided by Union Trucking, Inc. to show that all recent transactions with any of Marvin Pritchett's companies were properly invoiced "arm's length" transactions and that Union Trucking, Inc. dealt with many other companies as well; that Union Trucking, Inc.'s old debts to Marvin Pritchett's companies had been retired with zero balances prior to Union Trucking, Inc.'s 1992 recertification application to FDOT; and that Union Trucking, Inc. had three trucks and trailers normally being used full-time in its business. Random samplings by FDOT's consultant during this on-site review confirmed the information in the possession of FDOT prior to the 1992 application for recertification, most of which had been provided and was already in FDOT's possession as early as April 30, 1991. If FDOT had inquired concerning any loans at the time it received the recommended order in September 1992, it would have determined that all loans to Union Trucking, Inc. from any of Marvin Pritchett's various enterprises had been paid off prior to Union Trucking, Inc.'s 1992 recertification application to FDOT. FDOT's consultant's report after the 1993 on-site review determined that there currently were no "affiliated" firms under FDOT rules. It also appears from the report that FDOT then accepted that Robin Wilson split her time between office management for Union Trucking, Inc., running her own company named "Robin Pritchett Trucking Inc.," and working for her father's "[Marvin] Pritchett Trucking Inc." Having clarified these matters, FDOT no longer had problems or concerns with such an arrangement. Union Trucking, Inc.'s records on file for contract work with FDOT through other contractors also reflected use of owned trucks and drivers employed by Union Trucking, Inc. FDOT then recertified Petitioner effective October 15, 1993. At the attorney's fee and costs hearing herein, FDOT presented evidence that it did not have the correct location address for Union Trucking, Inc. when its personnel went to the July 1993 on-site review. This evidence does not justify FDOT's 1992 denial. Union Trucking, Inc.'s corporate office had moved a few weeks previous to the 1993 on-site review. Since Union Trucking, Inc. and its lawyer had been in constant communication with FDOT during the litigation phase of the recertification denial case, consistently urging an on-site inspection, any failure by Union Trucking, Inc. to clarify the geographical relocation of its office in 1993 was either an oversight or an innocent miscommunication. This change of address was not noted in Union Trucking, Inc.'s 1992 reapplication because the move had not yet occurred when that reapplication was submitted in July of 1992. Obviously, FDOT did not use the 1993 failure to notify the agency of a change of address as a reason to deny recertification in 1992, and FDOT also did not consider it a sufficiently serious flaw to withhold recertification after the July 1993 on-site review. FDOT also presented evidence that Robin Wilson did not tell the agency that she owned 100 percent of another corporate entity, "Robin Pritchett (her maiden name) Trucking, Inc." until the July 1993 on-site review. FDOT's two on- site reviewers concurred that "Robin Pritchett Trucking," consisting of one truck, which was sporadically used to haul wood chips, was never any cause for FDOT's concern. Apparently, FDOT considers hauling wood products to be an entirely different industry than the hauling of highway aggregates, which is the type of work done on FDOT contracts and the type of work done by Union Trucking, Inc. While Robin Pritchett Wilson's "affiliation" with her own independent corporation, "Robin Pritchett Trucking, Inc.," possibly was the type of "affiliation" which she should have disclosed, pursuant to FDOT's DBE rule, on Union Trucking Inc.'s 1992 application for recertification by FDOT as a DBE, it is clear that FDOT did not know of this nondisclosure when the agency denied recertification in December 1992. FDOT did not deny recertification at that time for that reason. FDOT also did not consider such nondisclosure to be a sufficiently serious flaw so as to withhold recertification after the disclosure at the July 1993 on-site review. Also, FDOT never asserted that its personnel had been confused in 1992 between "Robin Pritchett Trucking, Inc." and "[Marvin] Pritchett Trucking, Inc." Therefore, this late disclosure does not justify FDOT's 1992 denial of certification. In its July 1993 on-site review, FDOT investigated but found no barrier to recertifying Union Trucking, Inc. under the statutes and rules FDOT administers. There were no barriers related to familial relationships, related to Robin Wilson's being an owner of her own corporation, related to her being a director of any corporation, related to her owning a nominal number of stock shares in Marvin Pritchett's several businesses, related to her use of Pritchett's desk or office equipment, related to Pritchett loans to Union Trucking, Inc., related to Mr. Lee's use of a special account, or related to any other factual reason cited in either FDOT's December 14, 1992 denial letter or the September 9, 1992 recommended order affecting DGS. Nonetheless, FDOT's consultant's closing comments in the 1993 on-site report sum up FDOT's continuing overall approach to Union Trucking, Inc., both before the 1993 on-site review and thereafter. This approach is to "continue to question" successful DBEs whose principals have successful families and successful corporate investments. He wrote: Because of the close family relationships and multiple companies owned or operated, this firm will continue to be questioned as to eligibility for the DBE program. Any concerns I have remaining can only be resolved through the actual job perform- ance and compliance on future projects. I strongly recommend a continued compliance report be addressed with detailed concerns to support the next certif- ication provided the firm is recertified.
The Issue The issues presented are whether check marks that Respondent placed on the test booklets of some students during the second day of a Florida Comprehensive Assessment Test violated Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B-1.006(3)(a), (b), (d), and , (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009. The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie). At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class. As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency. It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise. The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860. Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage. No aggravating factors are evidenced in the record. However, several mitigating factors are in evidence. For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings. The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test. During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers. The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b). Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees. Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a). Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator. Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents. The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified. In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d). Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade. It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher. Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. None of the affected students testified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of coaching students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003), not guilty of the remaining charged violations, issuing a written reprimand to Respondent, and requiring Respondent to complete relevant training before proctoring another FCAT. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2005. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent, Department of Children and Family Services, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Julie A. Bedell. Specifically, Petitioner alleged that after she was hired, completed training, and was assigned to a section, her section supervisor terminated her probationary employment because of her age (49 years), while other younger employees were retained.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: Respondent, Department of Children and Family Services (Agency), an agency of the State of Florida, at all times material to this cause, was an "employer," as that term is defined in Section 760.02(7), Florida Statutes (2002).1 Petitioner, Julie A. Bedell (Ms. Bedell), at all times material to this cause, was 49 years old and an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes. All Agency personnel matters, at all times material to this cause in 2002, were centralized. Agency personnel was authorized, within budgetary constraints, to determine and advertise available positions, receive employment applications, evaluate and qualify each applicant, identify applicants who met minimal qualifications, and to hire qualified applicants to fill vacant positions throughout District 1, that included Fort Myers, Florida. The minimum qualifications that must be met before one becomes qualified for a permanent position as a family service counselor (FSC) with the Agency are a bachelor's degree from an accredited institution, attainment of a child protection certification, and successful completion of a one-year probation period. Child protection certification is earned after attending eight weeks of PDC training, passing a written assessment test, and successfully completing a field-based (on- the-job training) assessment evaluation. New employees must successfully complete, from the date of hire, a one-year probationary period before attaining permanent employment status. Completion of a field-based performance assessment shall occur during the one-year probationary period. At all times material, Ms. Bedell was a probationary employee. A probationary employee is one who does not have the benefit of termination only for cause, as does a permanent employee. By Agency rule probationary employees may, at the discretion of the Agency, be terminated without cause. On January 25, 2002, the Agency hired Ms. Bedell as a probationary employee in the position of a FSC. Ms. Bedell attended Human Resources (HR) orientation and there received the Agency's Employees' Handbook, containing, among other subjects, information regarding hours of work, lunch hour, breaks, and the requirement for approval from one's supervisor before variation of one's 8:00 a.m. to 5:00 p.m. work schedules.2 Thereafter, Joyce Mieses, Ms. Bedell's FSC unit supervisor, instructed and informed Ms. Bedell of policies, regulations, and operational procedures to which she was subject as a member of the FSC unit. Ms. Bedell was informed by Ms. Mieses that operational regulations included, but were not limited to: (1) employee's duty hours were limited to Monday through Friday from 8:00 a.m. to 5:00 p.m. with lunch hour from 12:00 p.m. to 1:00 p.m.; (2) employee's timesheets were to reflect 40 hours per week divided into work days of 8:00 a.m. to 5:00 p.m., Monday through Friday; (3) on those infrequent occasions when an employee was required, by demands of a particular assignment, to be at work before 8:00 a.m., or to leave work before 5:00 p.m. or work later than 5:00 p.m., prior approval from a supervisor was required; and (4) a supervisor's prior approval was required before an Agency employee could "flex" their time. Flex(ing) time is the term used to identify specific periods of approved deviation from the 8:00 a.m. to 5:00 p.m. work day (late arrivals or early departures) given an employee to equal the amount of overtime (early arrivals or late departures) previously incurred by that employee. At all times material, Ms. Bedell was aware of and fully understood the Agency's policy of prior approval by a supervisor before she would be permitted to work earlier or later than the 8:00 a.m. to 5:00 p.m. daily time constraints.3 On January 28, 2002, Ms. Bedell attended her first PDC class training session. The training sessions concluded on March 21, 2002. The PDC at USF conducted the training classes. All new employees are required to attend the PDC training classes and are placed in a "Trainee" status as required by Florida Administrative Code Rule 60L-33.003(2)(c), which, in pertinent part, required time spent in trainee status shall not count toward completion of the required one-year probationary period. Including Ms. Bedell, there were 13 probationary trainee employees in the January 28, 2002, training class. The class makeup consisted of seven trainees under the age 40 and six trainees over the age 40. The PDC training classes began at 9:00 a.m. and ended at 4:30 p.m., or earlier when excused by the instructor. The PDC service center was located approximately seven miles from the Agency office complex. One-way travel time between the two locations was approximately 15 to 20 minutes. All probationary trainees were instructed that when they are not in a PDC training classes, they are required to be in the Agency's offices doing field service activities. Nancy Jackson, district mentor coordinator for the Agency, assigned Robert Richmond, an experienced FSC employee, as Ms. Bedell's mentor. The duty of the mentor to the trainees was to provide "hands-on" assistance in areas where the trainee encountered specific problems in acclimating themselves to the procedural processes of providing FSC services. Ms. Mieses personally instructed Ms. Bedell to report to the PDC training classes at 8:00 a.m. daily and, after each class, to return to work in the FSC unit until 5:00 p.m. She also instructed Ms. Bedell that her time card must reflect 8:00 a.m. to 5:00 p.m. as time actually worked each day. Ms. Mieses instructed Ms. Bedell that her personal approval was required before Ms. Bedell could enter a time change, from the 8:00 a.m. to 5:00 p.m. as hours worked each day, on her time-card. Ms. Mieses explained to Ms. Bedell the Agency's policy regarding the use of "flex" time as a means to compensate employees for those infrequent situations where an FSC would be required to report to work before 8:00 a.m. or work after 5:00 p.m. Ms. Bedell knew and fully understood that to flex one's 8:00 a.m. to 5:00 p.m., 40-hour-per-week work time meant to either come in late or leave early on a specific day. Notwithstanding Ms. Mieses instructions and Ms. Bedell's understanding of both timecard entries and prior approval before deviation from established time constraints, during the period from January 28, 2002, through April 1, 2002, the record evidence established that Ms. Bedell, without approval by Ms. Mieses, intentionally skipped her scheduled lunch hour (12:00 p.m. to 1:00 p.m.) on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Ms. Bedell left work at 4:00 p.m. on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Each unapproved, early departure from work by Ms. Bedell was a separate cause for her termination. Ms. Bedell intended not to request and, in fact, did not request Ms. Mieses' approval before she skipped her lunch hours and "flexed" her time by departing early from work. Ms. Bedell deliberately chose to ignore the Agency's prior approval policy requirement before skipping lunch and flexing her time. Ms. Bedell repeated her established pattern of disregarding prior supervisor approval policy through her tenure with the Agency. Ms. Bedell acknowledged her intention to not follow instructions given by Ms. Mieses, with which she did not agree.4 On several occasions, Ms. Mieses counseled with Ms. Bedell and warned her about her failure to follow instructions regarding prior approval before deviations from standard procedures. Ms. Mieses instructed Ms. Bedell to discontinue that practice. Notwithstanding the conferences and warnings, on February 27, 2002, again without prior approval, Ms. Bedell worked 30 minutes of unnecessary overtime as an observer with an experienced FSC on a home visit. "Unnecessary" overtime is the term used to identify time spent on FSC tasks beyond the time that the supervisor, based upon the task(s) and the experiences of others FCSs, had predetermined was sufficient time to accomplish a given task(s). Ms. Bedell ignored her supervisor's instruction of a one-hour observation period and chose to stay longer on this home visit. On March 20, 2002, Ms. Bedell knowingly recorded an incorrect time on her timesheet. She recorded that the PDC class ended at 5:00 p.m., when in fact, the PDC class ended at 3:30 p.m. When Ms. Mieses asked Ms. Bedell about the "class ending time" discrepancy, Ms. Bedell intentionally misled Ms. Mieses by insisting that she was "in" class until 5:00 p.m. on March 20, 2002. The PDC class instructor subsequently advised Ms. Mieses that she dismissed the class and all students departed the PDC facility at 3:30 p.m. on March 20, 2002. Ms. Mieses informed Ms. Bedell by e-mail that the PDC instructor confirmed that she released the class and all trainees were out of the facility classroom at 3:30 p.m. on March 20, 2002. After receiving the e-mail, Ms. Bedell retracted her position and corrected her timesheet. Ms. Bedell's misrepresentation of the time class ended on March 20, 2002, and her entry thereof on her time card provided two separate causes for termination: (1) intentional misrepresentation (lying); and (2) falsification of state records. She was again counseled but not formally disciplined for these offenses. On March 21, 2002, Ms. Bedell was assigned her first case file. The file contained ten pages of pre-service intervention information. When a case is brought to the attention of the FSC unit, an investigation is undertaken, a home visit (or court visit if necessary) is arranged, and a situation specific case plan is developed by the assigned FSC, followed by a staffing comprised of all parties within the chain of operations to review, modify, and refine the case plan to accommodate the needs of the family. On March 22, 2002, Ms. Bedell, without approval, came to work before 8:00 a.m. (no specific time in the record) to allegedly review the ten pages in her case file. At approximately 3:30 p.m. that afternoon, Ms. Bedell entered Ms. Mieses office and announced that she was leaving for the day because she came in early to review her case file. Ms. Mieses' attempt to stop Ms. Bedell from leaving work early (flexing her time) was ignored by Ms. Bedell as she left the FSC unit in direct violation of Ms. Mieses' instruction not to do so. Three days later, March 25, 2002, Ms. Bedell received her second case. This case was also assigned after pre-service intervention. Ms. Bedell discussed her second case with her mentor, and he determined that Ms. Bedell should use another case plan as a model from which to learn how to develop and draft her "first" case plan. Mr. Richmond informed Ms. Mieses of his training decision, and she promptly e-mailed a finished case plan to Ms. Bedell to assist her in developing and drafting her first case plan. Gary Evanoff, another experienced FSC unit co-worker, in keeping with the FSC unit's team approach, demonstrated to Ms. Bedell how to split her computer screen displaying the two case plans using the model case plan as a guide for drafting the proposed case plan. These additional training instructions and directions from experienced FSC unit co-workers were given to assist Ms. Bedell in the preparation of her first case plan. At all times material, the FSC unit to which Ms. Bedell was assigned had an open door policy and employed a "team approach" to train their new unit members. The team approach meant that when a new trainee enters the unit, other members of the FSC unit, the supervisor, the assigned mentor, and the field trainer undertook the joint responsibility of sharing in the overall training of their new unit co-worker. The unrefuted evidence of record demonstrated that Ms. Mieses arranged for Ms. Bedell to: (1) shadow other FSC counselors, (2) accompany other FSCs on field service activities, (3) ride along and observe home visits, (4) attend staffing(s), and (5) accompany other FSCs when court appearances were required. No co-worker in Ms. Bedell's FSC unit knew Ms. Bedell's age. Not a single witness called by Ms. Bedell observed treatment (favorable or otherwise) given to other unit employees that was not likewise given and/or made available to Ms. Bedell during her employment tenure with the Agency. Ms. Bedell would frequently interrupt Mr. Richmond as he worked at his desk. The frequency of her interruptions, the questions she asked, and the help she sought became a burdensome interference. As an experienced mentor of many other new FSC employees, Mr. Richmond surmised that Ms. Bedell came to him, in effect, for him to do for her tasks pertaining to her case, rather than attempting to do those tasks herself. Mr. Richmond opined that Ms. Bedell was not concerned with self-improvement through the process of learning from and by her mistakes. Mr. Richmond discussed his concern with Ms. Mieses and suggested that a more effective use of time for both him and Ms. Bedell would be to schedule a time for Ms. Bedell's questions. Ms. Mieses instructed Ms. Bedell to meet with Mr. Richmond and establish a schedule for mentor training meetings. Ms. Bedell did not comply with that request. Based upon the frequency of her visits and the questions she asked, Mr. Richmond concluded "compared to other mentorees at the same stage of training, she [Ms. Bedell] was not grasping basic terms and operational processes that was [sic] covered in her classroom training." He shared his observations, mentor relationship concerns, and conclusions with Ms. Mieses. Mr. Richmond never observed nor was he ever made aware of any discriminatory action taken against Ms. Bedell. He never observed nor was he ever made aware of any treatment different from the treatment of other FSC unit employees directed toward Ms. Bedell. He never considered nor was he aware of Ms. Bedell's age. Sue Carey, PDC field instructor, identified problems she observed and became aware of with Ms. Bedell's knowledge and work skills. After two home visits, Ms. Bedell voluntarily shared with Ms. Carey her "trouble liking" one family and her "trouble trusting" another family. In response to Ms. Bedell's expressed trouble (feelings and attitude) of "liking" and "trusting" families comments, Ms. Carey informed Ms. Bedell that her negative feelings and attitude (liking and trusting) towards families served by the Agency through FSC were of serious and professional concern to her and the FSC unit. Ms. Carey's follow-up field assessment review of April 1, 2002, described Ms. Bedell's knowledge of basic terms and operational processes contained in the two cases assigned to her as "extremely limited." Ms. Carey never observed nor was she ever made aware of any discriminatory action taken against Ms. Bedell. She never observed nor was she ever made aware of any treatment different from the treatment afforded other FSC unit employees directed toward Ms. Bedell. Ms. Carey never considered nor did she know Ms. Bedell's age. Ms. Bedell voluntarily chose to share and express her "feelings" and "attitude" about families she encountered with Ms. Carey, but she never shared or expressed her job-related "feelings" (of frustrations) and "attitude" resulting from a lack of or a denial of training; from derogatory, age-related remarks made to her; and discrimination by different treatment because of her age with Ms. Carey. The unrefuted evidence demonstrated that throughout her probationary employment tenure with the Agency, Ms. Bedell received the same standard training as other probationary trainees, regardless of the age of the trainee. There is no record evidence to substantiate a single instance where another probationary-trainee received "training" (assistance and or directions) that had intentionally not been made available or intentionally denied to Ms. Bedell. Ms. Bedell's allegation of disparaging age-based remarks made to her by a Jim Robertson, fellow trainee, during their PDC class on February 14, 2002, is not supported by evidence of record. Mr. Robertson denied knowledge of Ms. Bedell's age and denied making disparaging, age-based remarks to Ms. Bedell at any time during her employment tenure. On or about March 28, 2002, Ms. Mieses, through discussions and conversations with Mr. Richmond, Ms. Carey, and others, concluded that a structured, 8:00 a.m.-to-5:00 p.m., office job would probably better suit Ms. Bedell's personality. After further consideration of Ms. Bedell's demonstrated lack of respect for policies, her difficulty and refusal to following instructions, her ineffective utilization of her time, her limited grasp of basic FSC terminology, and her lack of acclimation to the FSC processes, all of which are common to a FSC worker with an assigned case load, Ms. Mieses submitted Ms. Bedell's name to the licensing unit supervisor for consideration as a candidate for a position in the licensing unit. It is within Ms. Mieses' supervisory authority to recommend the transfer placement of her unit personnel to positions she believes they may be best suited. The licensing unit office worked from 8:00 a.m. to 5:00 p.m. daily. Licensing was primarily an in-house unit with little or no out-of-office field activities or family interactions. Ms. Mieses, though not required, informed Ms. Bedell that her name was forwarded to the licensing unit supervisor who was responsible for making the selection. She explained to Ms. Bedell why she believed the potential transfer to the licensing unit would be in her best interest. At the time Ms. Bedell was informed of the potential transfer, she expressed no concerns of disparate treatment. She expressed no concerns that the possible transfer was made "because of her age." The licensing unit supervisor, however, had two candidates from which to choose from among the group of employees initially hired with Ms. Bedell and determined the other candidate, not Ms. Bedell, was the best suited candidate for the position. The licensing unit supervisor made her choice based primarily on two factors; first, the chosen candidate's long and stable work history of having taught in public schools for over 20 years, and second, the chosen candidate's long and varied experiences dealing with children and their families.5 The ages of the two candidates were not considered by the supervisor of licensing in filling the position. It is significant, however, that the candidate chosen by the licensing supervisor was both within the same protected class as Ms. Bedell and older than Ms. Bedell. The person chosen by licensing voluntarily resigned from the Agency after working in the unit a short period of time. Ms. Bedell's allegation and argument that the Agency's subsequent acceptance of the licensing unit candidate's resignation and not affording her the opportunity or option to resign before termination demonstrated discrimination (different treatment) is not based on fact. Voluntary resignation was available to Ms. Bedell throughout her tenure with the Agency. It was her post-termination attempt to broker a "resignation" that aborted her negotiations with HR. Her proposal consisted of tendering her resignation in exchange for the Agency either withdrawing from or sealing in her personnel file the termination letter. The post-termination negotiations failed.6 On April 1, 2002, Ms. Mieses provided Rita Young, district operations program manager and her supervisor, a documented outline of instances of insubordination, specific failures and refusals to follow instructions by Ms. Bedell. Based upon her many years as a FSC supervisor, Ms. Mieses' concerns resulted from Ms. Bedell's job-related inabilities and her repeated refusals to follow instructions and directions during her probationary employment period. Based upon Ms. Bedell's failures and refusals to follow instructions, Ms. Mieses concluded that once Ms. Bedell was in the field working as a permanent employee, she would continue her pattern of failing and refusing to follow instructions and directions. Ms. Mieses was convinced that Ms. Bedell's demonstrated propensity for disobedience of Agency policy would adversely affect the safety of children and families served by the FSC unit and the Agency. Based on her observations of Ms. Bedell's characteristic traits, her experiences with Ms. Bedell's lack of respect for supervisory authority, Ms. Bedell's demonstrated inability to follow directions, and Ms. Bedell's propensity to do things her way, Ms. Mieses recommended Ms. Bedell's termination as a probationary employee to her supervisor, Rita Young. Ms. Young possessed authority to disagree and overturn Ms. Mieses' recommendation. Ms. Young did not overturn the recommended termination. Ms. Young made the final decision to terminate Ms. Bedell and, following protocol, directed Deanna Gilkerson to forward the termination decision and supporting information to HR for review. Machel Poier, HR employee, relying upon the experience and knowledge of staff, agreed with staff's recommendation to terminate Ms. Bedell. Ms. Poier conferred with her supervisor, Coral Conner, who also agreed with staff's recommendation to terminate Ms. Bedell. Thereafter, Ms. Poier prepared the probationary termination form and sent it to Ms. Gilkerson for her signature, officially terminating Ms. Bedell's employment at the close of business on April 2, 2002. The documentation process, the review process, and the final decision making processes were in full accord with Agency protocol, policy, and procedures for termination of a probationary employee by the Agency. Ms. Bedell did not produce, through the testimonies of her witnesses, nor through admitted documentation, evidence that her age (even "if" known at the time) was considered by and/or a concern of Ms. Mieses, Ms. Young, Ms. Gilkerson, Ms. Poier, or Ms. Conner in their concurrence with recommendations to terminate her probationary employment with the Agency. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, evidence of discrimination by treatment afforded other younger (and/or same age) employees that was different from the treatment afforded her. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, that her supervisor, FSC unit co-workers, or any other Agency employee denied, prevented, or hindered her access to her obtaining probationary employee training that was offered during her tenure with the Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING Petitioner's, Julie A. Bedell, Petition for Relief based on age discrimination against Respondent, Department of Children and Family Services. DONE AND ENTERED this 26th day of March 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 26th day of March, 2004.
The Issue The issue to be determined is whether Respondent, Angel Casady (Ms. Casady or Respondent), violated section 1012.795(1)(d) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint, and if so, what penalty shall be imposed?
Findings Of Fact Respondent is a teacher licensed by the Florida Department of Education, and has been issued Florida Educator’s Certificate 1204471. The certificate covers the area of elementary education, and is valid through June 30, 2015. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an associate teacher at Breakfast Pointe Academy in Panama City, Florida. Breakfast Pointe is a K-8 school in the Bay County School District. Respondent worked in a fourth-grade “overflow” classroom with lead teacher, Joy Chonko. An overflow classroom is a classroom that has more than 25 students because the actual number of enrolled students exceeded the projection for the grade level. In that instance, the lead teacher is assigned an associate teacher to assist her. Ms. Chonko’s classroom had between 30 and 37 students. Ms. Chonko is in the fourth year of her teaching career. She worked for two years in Montana before moving to the Panama City area and starting at Breakfast Pointe. The events giving rise to this case occurred during her first year at Breakfast Pointe. Ms. Chonko is generally regarded as a good teacher. According to her principal, Denise Kelley, her students and their parents love her, and she is always going the “extra mile” to help them, both in and out of the classroom. She is very involved with both students and other teachers on her grade level, and those teachers wanted her to return so that they could continue working as a team. When asked if she recommended her return, Ms. Kelley’s response was “absolutely.” Ms. Chonko was assigned to an overflow class a few weeks into the school year, and an associate teacher was assigned to help her. However, in December 2012, that teacher was let go because she was not performing the duties assigned to her. Respondent previously worked at Northside Elementary School and was let go from that assignment, and then placed at Breakfast Pointe in Ms. Chonko’s class. Ms. Chonko described the relationship between the two women as cooperative, like team teachers.1/ She did not think of Ms. Casady as a subordinate, although it is clear from Ms. Casady’s job description that she was to work under the direction of one or more lead teachers. Further, it is clear from the assignments in the classroom that Ms. Chonko shouldered the bulk of the instruction responsibilities. For at least part of the spring semester, Ms. Chonko taught language arts, social studies, and science, with Ms. Casady assisting her, while Ms. Casady taught math with Ms. Chonko’s assistance. On March 5, 2013, there was a meeting with Ms. Kelley, Ms. Chonko, Ms. Casady, and Leah Margulies, a classroom coach, to address Ms. Casady’s role in the classroom. The plan at that time was for Ms. Chonko to continue teaching the language arts, social studies, and science classes. Ms. Casady was to observe, with Ms. Margulies, another fourth-grade teacher at Breakfast Pointe teaching math; another teacher off-campus teaching math; and Ms. Chonko teaching math. Then Ms. Chonko would teach math on Mondays, Wednesdays, and Fridays, while Ms. Casady taught math on Tuesdays and Thursdays.2/ All of these observations were planned to help Ms. Casady improve her teaching skills. In April 2013, both Ms. Chonko and Ms. Casady were involved in the administration of the FCAT. Both teachers participated in the training for those who administered the exam, and were given a testing administration manual. Included in the manual are the Prohibited Activities Agreement and the Test Security Agreement, which teachers are to sign and date once training is completed. The Test Administration and Security Agreement includes the following text: Examples of prohibited activities are listed below: Reading or reviewing the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. Inappropriate actions by district or school personnel will result in further investigation and possible loss of teacher certification. I, , have received adequate training regarding the administration of the Spring 2013 Florida Comprehensive Assessment Test (FCAT/ FCAT 2.0) and have read the Florida Test Security Statute and State Board of Education Rule in Appendix B and the information and instructions provided in all applicable sections of the Spring 2013 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the FCAT/FCAT 2.0 according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented. Respondent signed the Security Agreement on April 9, 2013. Respondent also signed the Test Administrator Prohibited Activities Agreement on April 9, 2013. This document provided in pertinent part: It is important for you, as a test administrator of a statewide assessment, to know that the following activities are prohibited. Engaging in such activities may result in an investigation, loss of teaching certification, and/or prosecution for violation of the law. Please read the following list of prohibited activities and sign your name on the signature line at the bottom of this page indicating that you understand these actions and their consequences: * * * I understand that during the test I may not: * * * Give students more time than is allotted for the session (unless the student has an extended time accommodation) * * * Instruct students to test in a session other than the one designated for that day/allotted testing time (going on to Session 2 during Session 1, reviewing work in Session 1 during Session 2) Coach students during testing regarding test-taking strategies * * * I understand that after testing I may not: * * * Discuss the content of the test with anyone, including students or other school personnel The FCAT is a very structured test. Administrators are given the actual script to use as instructions for the test. The Script for Administering Grade 4 Reading, Session 2, includes the following directions to be given orally to students: You may not change any answers from Session 1. Remove all materials from your desk except a No. 2 pencil. You’ll have 70 minutes to complete Session 2 of the Reading test. Open your test and answer book to Session 2 on page 33. The session number is at the top of each page. You may work only in Session 2. Remember the following: * * * When you have finished, check through your answers in this session only to make sure you have filled in only one bubble for each question. Try to answer every question. If you aren’t sure how to answer a question, skip it and keep going. After you have answered all the other questions, go back and answer any questions you skipped in this session only. When you come to the STOP sign, you have finished Session 2. If you complete Session 2 before time is called, go back and check your work. Do not go back and work in Session 1. Please remember that during this test session you MUST NOT work in Session 1 talk to other students or make any disturbance look at another student’s test and answer book allow another student to look at your test and answer book ask for help answering any test questions give help to another student in answering test questions have notes or scratch paper have any electronic or recording devices in your possession at any time, including breaks, even if you do not use them fail to follow any other instructions given After the test you may not discuss the test items with anyone. You have 10 minutes to finish Session 2. Remember, do not go back to Session 1. Administration of the FCAT began on Monday, April 15, 2013. Although Ms. Chonko and Ms. Casady would see each other and talk in the mornings each day before the testing began, they had separate groups of children for testing, and were not testing in the same classroom. N.C. was a fourth-grade student in Ms. Chonko’s classroom. Ms. Chonko described him as a very respectful, polite, hard-working student who presented no discipline problems. She could not remember specific grades but thought he was a good student. N.C. described his grades as good, although when asked for more specifics, he said he got As, Bs, Cs, and maybe a couple of Ds.3/ N.C. was in the group of students to whom Ms. Chonko administered the FCAT. Session 1 of the reading portion of the FCAT was administered Monday, April 15, 2013. After testing for the day was over, N.C. told Ms. Chonko that he did not finish all of the questions in Session 1, and asked if he would be able to finish the session. Ms. Chonko told him he would not be able to go back into Session 1, that Monday was for Session 1, and Tuesday they would be doing Session 2. Ms. Chonko was not overly concerned that N.C. did not finish, because she recognized that with a timed test not all children are going to finish.4/ Tuesday morning, Ms. Chonko mentioned her conversation with N.C. to Ms. Casady. Ms. Casady told Ms. Chonko she should tell N.C. to go back and finish Session 1. Ms. Chonko reminded Ms. Casady that it was against the rules to do so. Ms. Chonko did not see Ms. Casady speak to N.C. after their conversation Tuesday morning, and she thought the issue was over. However, on Wednesday, April 17, Ms. Casady told her that she had encouraged N.C. to go back and finish the questions he did not complete on Monday. The following day, Ms. Casady told her that N.C. had in fact gone back and finished Session 1. Ms. Chonko believed that there was a violation of the testing protocol, and she reported it to her principal, Ms. Kelley, on Thursday afternoon. According to Ms. Kelley, Ms. Chonko appeared hesitant, but came to her office on Thursday, saying, “I think I need to tell you something.” Ms. Chonko told Ms. Kelley about N.C. going back into Session 1. Ms. Kelley asked Ms. Chonko to write a statement regarding the incident, which she did. She also called Camilla Hudson, the District’s assessment coordinator, and Sharon Michalik, the executive director for human resources for the District. After direction from Ms. Hudson, Ms. Kelley and the assistant principal, Ms. Weatherly, interviewed N.C. and asked him to write a statement as well. A Testing Incident Report was prepared by Ms. Kelley and Ms. Bailey, the school’s testing coordinator, and N.C.’s FCAT reading score was invalidated. N.C. was interviewed by Ms. Kelley and Ms. Weatherly on Friday, April 19, 2013. N.C. confirmed that he told Ms. Chonko that he did not finish Session 1 and that she told him he could not work in Session 1 anymore. He told Ms. Casady on Tuesday morning that he had not finished the first session, and she told him, “if you are at one minute, you should always mark them B or C.” She also told him if you have enough time after session 2, you should go back and mark B or C. N.C. told Ms. Kelley and Ms. Weatherly that after he finished Session 2, he went back and marked the unanswered questions in Session 1 with the answer “B.” The testing coordinator confirmed that the last six questions of Session 1 were marked B. N.C.’s statement was prepared in Ms. Kelley’s office. He identified it at hearing and testified that the contents of the statement were true. N.C. also testified that he liked both Ms. Chonko and Ms. Casady and that Ms. Casady had never written him up for disciplinary problems. N.C.’s statement reads as follows: I didn’t finish session 1 reading I had 6 questions left Mrs. Chonko told me to work in session 2 I told Mrs. Cassady that I didn’t finsh she said if I’m not finshed and thairs 1 minute left I should mark B or C. She also said if I had a enough time left after session 2 I should go back in session 1 and mark the questions that I didn’t finish B or C. And I did mark them B.5/ There was no problem with the group of students for whom Ms. Casady administered the FCAT. Ms. Michalik came to Breakfast Pointe on Friday, April 19, 2013. She interviewed Ms. Chonko, and then, with Ms. Kelley and Ms. Weatherly present, interviewed Ms. Casady. The meeting was lengthy. Its purpose was to inform Ms. Casady of the investigation and give her an opportunity to present her side of the story. At the beginning of the meeting, Ms. Casady did not seem all that concerned, but as the meeting progressed and she realized that others viewed the matter more seriously and that there could be repercussions for what happened, she became quite upset. She denied that the incident occurred and said that Ms. Chonko was a “nervous wreck” about students not finishing the test, and that the two of them were trying to brainstorm ways the boys could finish. According to Ms. Michalik, Ms. Casady said that she thought it would be fine if the boys went back into Session 1 as long as no one knew. Ms. Casady also expressed frustration over the incident, stating that she could not understand why it was “such a big deal over two FCAT questions and a fourth grader.” When Ms. Michalik asked her why she would not have known about the prohibition on going back, since it is in the testing manual, she said that while she did attend the training, she did not study the manual’s script for day two until she read it on the second day of testing. During the meeting, Respondent also claimed that it was N.C.’s father who told him to go back into Session 1 on the second day of testing. While N.C.’s father told him that if he was not going to be able to finish a session, to answer B or C for remaining questions, he never told him to go back and finish during another session of the test, and never told anyone that he had given such advice. It was clear after the meeting that Ms. Casady was very upset with Ms. Chonko, and Ms. Kelley and Ms. Michalik decided it would not be best for the two women to be in the same room with the students.6/ Ms. Michalik elected to transfer Ms. Casady to another school. There was an unanticipated opening as a media specialist at another school due to the death of an employee, so she was transferred there for the rest of the school year. She was not recommended for return the following year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Education Practices Commission enter a Final Order finding Respondent guilty of Counts two and three of the Administrative Complaint. It is further recommended that the Commission suspend Respondent’s educator’s certificate for one year; impose an administrative fine of $500; and that upon reinstatement, Respondent serve three years of probation, subject to terms and conditions determined by the Commission. DONE AND ENTERED this 28th day of July, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2014.
The Issue Whether Petitioner should be given credit for certain answers provided on the State Officers Certification Examination (officers certification examination).
Findings Of Fact Petitioner, James H. Hall, Jr., took the officers certification examination and, thereafter, challenged certain answers to questions on the examination. Specifically, challenged questions were numbered 40, 49, 63, 89, 112, 115, 156, 143, 203, and 211. At hearing, Petitioner withdrew his challenges to questions 143 and 211, leaving eight questions to be challenged. The Commission is the state agency charged with the responsibility of administering officers certification examinations and establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2005).1 The officers certification examination is a multiple- choice examination with four answer choices for each question. Only one of the proposed answers is deemed correct. The answer deemed to be correct is the best of the four answer choices. The content of all the questions on the officers certification examination are derived from the basic recruit curriculum and from objectives that come from a job task analysis. The objectives appear in the beginning of every lesson of the curriculum. The curriculum materials are available to all applicants who take the officers certification examination. All the questions on the officers certification examination have been validated and field tested. Question 40 was clear and unambiguous and asked applicants to identify immunizations required for law enforcement officers. The correct answer to the Question 40 is (a). Petitioner selected answer choice (c), based on his belief as to what communicable disease officers should and could be vaccinated against. The correct answer to Question 40 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 69 percent of all test takers who have answered this question have answered it correctly. Petitioner's reason for choosing (c) as the answer to Question 40 does not constitute persuasive evidence establishing that the answer he chose is correct. Question 49 was clear and unambiguous and required the applicants to demonstrate knowledge and application of the phonetic alphabet used by the Federal Communications Commission and the United States military. The correct answer to Question 49 is (a). Petitioner selected answer (c), based on his belief that the response next to that choice "flowed, that it didn't have too many syllables in it." The correct answer to Question 49 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 89 percent of all test takers who have answered this question have answered the question correctly. Petitioner's rationale for selecting answer (c) does not constitute persuasive evidence establishing that the answer he chose is correct. Question 63 was clear and unambiguous and required the applicants to demonstrate their understanding of various mental disorders. The correct answer to the question is (d). Petitioner selected answer (a). The correct answer is included in the curriculum material and is not the answer chosen by Petitioner. The question is statistically valid, and 91 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 89 is clear and unambiguous and required applicants to know what an officer should do when a suspect is shot. The correct answer is (b). Petitioner selected answer choice (c). The correct answer is included in the curriculum material and is not the same answer selected by Petitioner. Question 89 is statistically valid, and 90 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 112 is clear and unambiguous and required applicants to demonstrate knowledge relative to parties at a traffic crash scene. The correct answer to the question is (d). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 115 is clear and unambiguous and required the applicant to demonstrate knowledge of the officers' duty regarding the Miranda warning. The correct answer choice is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 85 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 156 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the consent given by an adult needing assistance. The correct answer for Question 156 is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 73 percent of all persons who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 203 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the officers' responsibility in domestic violence incidents. The correct answer for Question 203 is (c). Petitioner selected the answer choice (d). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who have answered this question have answered the question correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Florida Department of Law Enforcement enter a final order rejecting Petitioner's challenge to the scoring on Questions 40, 49, 63, 89, 112, 115, 156, and 203 and dismissing the Petition. DONE AND ENTERED this 31st day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2006.
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.
