The Issue The issue presented is whether Petitioner's application for licensure as an assisted living facility should be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered granting Petitioner's application for a license to operate an ALF, subject only to Petitioner providing the required inspection report from the Palm Beach County Public Health Unit. DONE AND ENTERED this 18th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997. COPIES FURNISHED: Brian M. O'Connell, Esquire Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell Post Office Box 4626 West Palm Beach, Florida 33401 Jennifer Stewart, Esquire Agency for Health Care Administration 3810 Inverrary Boulevard Lauderhill, Florida 33319 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001.
The Issue 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.
The Issue The issues presented are whether Respondent provided prohibited assistance to examinees in a Florida Comprehensive Assessment Test in violation of Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2002), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B- 1.006(3)(a), (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 Number 685117 that is effective through June 30, 2007 (teaching certificate). Respondent is certified to teach elementary education, including math, science, and social studies. The Brevard County School District (District) has employed Respondent as a teacher for 14 years. In March 2003, the District employed Respondent as a fifth-grade teacher at Gemini Elementary School (Gemini). At Gemini, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth graders. A student identified in the record as L.H. was upset after the first day of the FCAT exam. She told her mother that night that she felt like she had cheated because of assistance she received from Respondent during the FCAT. The next day, the mother of L.H. reported the allegation to administrators at Gemini. The administrators immediately replaced Respondent as a proctor, conducted an investigation, invalidated the test scores of 26 students, and subsequently transferred Respondent to Endeavor Elementary School (Endeavor). While the results of the investigation were pending, District employees conducted a public meeting to allow parents to voice their concerns over the invalidation of FCAT results. District employees did not address the specific facts surrounding the invalidation of the test results due to the pending investigation. However, the matter gained public attention as a result of the actions of District employees. District employees rely, in part, on FCAT scores to determine whether fifth-grade students progress to the sixth grade. In March 2003, Gemini fifth graders generally needed a passing score on the FCAT to progress to the next level. The District also needed to test at least 95 percent of its fifth- grade students or face applicable sanctions. The invalidation of the FCAT scores did not prevent any of the 26 students from progressing to the sixth grade. Nor did the invalidation of the FCAT scores prevent the District from testing 95 percent of the students in the District. On May 17, 2005, Petitioner issued an Amended Administrative Complaint (Complaint). The Complaint alleges, inter alia, that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2002). The statute makes it a violation for Respondent to knowingly or willfully coach an examinee during the FCAT or alter or interfere with the response of an examinee. Respondent signed an FCAT Test Administration Security Agreement (security agreement) indicating that she had read and understood the statutes and rules related to the administration of the FCAT. A test manual and training that proctors received before the FCAT directed Respondent to read test directions to examinees and provide no additional help. No finding is made that Respondent failed to follow test manual and training directions. The Complaint does not allege that Respondent failed to "follow test administration directions specified in . . . test . . . manuals. . . " within the meaning of Subsection 100824(1)(f), Florida Statutes (2002). Evidence of what transpired in Respondent's examination room in March 2003 consists of the testimony of five students and the written statement of another student, all of whom Respondent proctored. Incriminatory evidence consists primarily of the testimony of four students. Two students testified at the formal hearing, and two testified by deposition. The rest of the incriminatory evidence enters the record as a written statement from a fifth student completed in April 2003.1 Exculpatory evidence consists of the testimony of a sixth student who testified during the formal hearing. The six students are identified in the record, respectively, as T.M., L.M., S.O., J.C., L.H., and W.D. They were approximately 11 years old in March 2003. The five students who testified were approximately 13 years old at the time of the formal hearing, and approximately two years had passed since they took the FCAT. None of the students were enrolled in Gemini at the time of the hearing. For reasons discussed in the Conclusions of Law, it is legally insufficient for incriminatory evidence to merely show that Respondent provided assistance "by any means" or "in any way." The testimony and written statement must be clear and convincing that Respondent committed a specific act that is statutorily prohibited because it coaches an examinee or alters or interferes with the examinee's response (prohibited assistance).2 Incriminatory evidence must satisfy two standards to be clear and convincing. The two standards have been judicially differentiated as a qualitative standard and a quantitative standard.3 The qualitative standard requires incriminatory evidence to satisfy several requirements. The five students who testified and provided a written statement for Petitioner must be credible. The memory of each student must be clear and lack confusion. The content of the testimony and written statement must describe what was said and done during the FCAT examination precisely and explicitly and must distinctly recall material facts. The testimony and written statement must be direct, unequivocal, and consistent.4 Incriminatory evidence opining that Respondent assisted an examinee is conclusory if it is not substantiated by precise and explicit details that are distinctly remembered by the student and are sufficient for the trier of fact to independently determine whether the conduct of Respondent provided prohibited assistance to an examinee. Conclusory testimony fails the qualitative standard, is not clear and convincing, and invades the province of the trier of fact by denying the trier of fact an evidential basis to independently determine whether the specific acts committed during the FCAT amounted to prohibited assistance.5 Incriminatory evidence must also satisfy a quantitative standard. The sum total of incriminatory evidence must be of sufficient weight that it produces in the mind of the trier of fact a firm conviction, without hesitation, as to the truth of the factual allegations in the Complaint.6 The trier of fact bases the remaining findings on a determination of whether it is clear and convincing from the testimony and written statement of the six students that Respondent provided prohibited assistance to an examinee. The trier of fact first weighs the incriminatory evidence to identify evidence that satisfies the qualitative standard (qualitative evidence) and then determines whether the qualitative evidence satisfies the quantitative standard. The testimony of S.O. was credible, but the trier of fact was unable to assess the credibility of T.M. and L.M. by observing their demeanor and candor. The content of the testimony and written statement is conclusory. The incriminatory evidence lacks the precise and explicit detail needed for the trier of fact to independently substantiate the conclusions of the students. S.O., T.M., and L.M., each stated in conclusory fashion that Respondent provided assistance to the respective examinee on one question in the science portion of the FCAT. However, none of the students distinctly remembered their respective question; the answer each provided; or the details of the conduct or statements of Respondent.7 It is less than clear and convincing that the answer each student provided was any different from the answer the student would have provided without the alleged assistance from Respondent. The conclusory statements by S.O., T.M., and L.M. are tantamount to opinions on an ultimate issue of fact without precise and explicit details required for the trier of fact to independently find that the statements and conduct of Respondent concerning a specific question and answer provided prohibited assistance. Such conclusory evidence effectively invades the province of the trier of fact. The testimony of J.C. is sufficiently specific to satisfy the qualitative standard for clear and convincing evidence. J.C. testified that he asked Respondent what a waxing crescent moon is, and Respondent stated it is a one-fifth moon to the left. However, J.C. testified by deposition, and the trier of fact is unable to determine the credibility of J.C. by assessing the demeanor and candor of the witness. Moreover, it is less than clear and convincing that Respondent provided J.C. with the answer to the question, coached J.C., or altered or interfered with the response of J.C.8 There is no evidence that the response J.C. provided to the question was any different from the response he would have provided in the absence of the alleged assistance from Respondent. The testimony of L.H. is credible and sufficiently detailed to satisfy the qualitative standard for clear and convincing evidence. L.H. testified that Respondent answered an inquiry from L.H. by stating that the test question has nothing to do with the sun and the moon and to take away all the answers about the sun and the moon. L.H. testified that only one answer remained. The testimony of L.H. also provided sufficient detail to enable the trier of fact to make an independent finding as to whether the effect of the alleged assistance was to coach L.H. or to alter or interfere with the response given by L.H. The testimony of L.H. is the only evidence from Petitioner that satisfies the qualitative standard for clear and convincing evidence. However, the testimony of L.H. is not quantitatively sufficient to be clear and convincing evidence. For reasons stated in the Conclusions of Law, the testimony of one fact witness that is not corroborated by other clear and convincing evidence is not legally sufficient to be clear and convincing. Even if uncorroborated testimony were legally sufficient, the testimony of L.H. does not satisfy the quantitative standard for clear and convincing evidence because it is in apparent conflict with exculpatory testimony from W.D. W.D. testified that Respondent refused to assist him during the FCAT and did not assist anyone else.9 The testimony of W.D. conflicts with that of L.H. if they took the FCAT together. Respondent was the proctor for L.H. and W.D. on the first day of the FCAT. Petitioner did not place W.D. in a different room from L.H. by clear and convincing evidence.10 Evidence that supports a reasonable inference that L.H. and W.D. were in the same room, although not a preponderance of the evidence, is sufficient to create hesitancy in the mind of the trier of fact and preclude a firm conviction that Respondent committed specific acts prohibited by Subsection 1008.24(1)(c), Florida Statutes (2002), and Florida Administrative Code Rule 6A-10.042(1)(c) and (d). If it were determined that Respondent violated the preceding statute and rule, it is less than clear and convincing that the violation was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2002). No applicable rule 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 alleged prohibited assistance 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 alleged prohibited assistance satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the alleged 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 (2002). After District employees investigated the incident and invalidated the test scores of 26 students, the District did not terminate the employment of Respondent. Rather, the District transferred Respondent to Endeavor. It is clear and convincing from the testimony of District personnel, administrators at Gemini, fellow teachers, parents, and students, and from previous job evaluations, that Respondent has been and continues to be an excellent teacher. Respondent brings out the best in students. Respondent has a wonderful rapport with students, instills in students the desire to learn, and inspires the imagination of students. Respondent emanates genuine enthusiasm in the classroom as well as a fun loving attitude. Respondent goes out of her way to make sure that children with learning problems achieve their goals and gain satisfaction. Respondent is very good at explaining difficult subjects to students. Respondent tutors students after school. Respondent is able to identify and focus on unique qualities in each student. Respondent does not display bias or prejudice toward any student. Respondent uses a reward system for classroom discipline that is effective and ensures an attentive class. Respondent is very calm in the classroom. Respondent never loses her temper or yells at students. Respondent is professional, consistent, structured, fair, compassionate, nurturing, and punctual. Respondent is intelligent, reliable, and dedicated. Respondent spends a great deal of time preparing her lessons and for her work with students. Respondent teaches math, science, and social studies and is a valuable asset to the District. Any notoriety surrounding the events in March 2003 arose from the action of District employees. For reasons stated in the Conclusions of Law, Petitioner cannot penalize the teaching certificate of Respondent on the ground that the alleged prohibited assistance became notorious through the actions of District employees. The alleged prohibited assistance did not violate relevant standards of professional conduct within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2002). The evidence is less than clear and convincing that Respondent possessed the culpable intent required in Florida Administrative Code Rule 6B-1.006(3)(e), (4)(b), or (5)(a). L.H. was very upset over the events in March 2003 and over the criticism she received from other students for complaining about Respondent to school officials. However, the evidence is less than clear and convincing that the alleged prohibited assistance failed to protect L.H. from conditions harmful to the learning or mental or physical health or safety of L.H. within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a). There is no evidence that public scorn threatened the safety of L.H. or interfered with what L.H. learned at Gemini. L.H. achieved her educational goals and progressed to the sixth grade. Nor is there any evidence that L.H. suffered any identifiable mental or physical impairment as a result of the alleged assistance from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 11th day of August, 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 11th day of August, 2005.
The Issue The issue is whether the Respondent is guilty of the allegations contained in the Administrative Complaints and, if so, what disciplinary actions should be taken against him, if any.
Findings Of Fact Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, David M. Kenton, M.D., was and is at all times material a physician licensed in the State of Florida, having been issued license number ME 0037023. Dr. Kenton's office address is 1701 West Hillsborough Boulevard, Suite 101, Deerfield Beach, Florida. Mobile Health Corporation is a corporation organized pursuant to the laws of the State of Florida. Factual Background Mobile Health Corporation operates what is known as a multiphasic health testing center. This facility is licensed by the Florida Department of Health and Rehabilitative Services (HRS) pursuant to the Florida Multiphasic Health Testing Center Law, Section 483.28, et. seq., Florida Statutes (1989). A multiphasic health testing center is defined in the Florida Statutes as a fixed or mobile facility where specimens are taken from the human body for delivery to registered clinical laboratories for analysis and where certain measurements such as height and weight determinations, blood pressure determinations, limited audio and visual tests, and electrocardiograms are made, Section 483.288, Florida Statutes (1989). At all times material, Mobile Health Corporation (Mobile Health) was licensed by the Department of Health and Rehabilitative Services pursuant to License Number 00163, effective June 30, 1989. Pursuant to its license with HRS, Mobile Health was authorized to provide certain diagnostic tests which included carotid doppler blood flow analysis, heart echocardiography, ultrasounds, mammography, and clinical laboratory tests. The president of Mobile Health was Christine Byrum. As president, she had the responsibilities to provide for the day- to-day operations and management of the business, and the duties incident to management, marketing, and operations of the company. Dr. Kenton was at all times material the vice president and treasurer of Mobile Health Corporation, and had employment responsibilities as the medical director for the corporation. Dr. Kenton was responsible for assuring the proper clinical operation of Mobile Health. A copy of Dr. Kenton's job description was attached to the Amended Stipulated Facts as Exhibit A. It states: GENERAL STATEMENT With broad general direction, he/she will perform administrative duties for the mobile test unit. He/She is responsible for directing work methods, quality control of procedures performed and interpretation. DUTIES: Is responsible for quality of examination performed and the quality of interpretation of studies. Will keep abreast of new procedures, equipment, products and methods, will review and express an opinion of new equipment evaluation and applications. Evaluates site problems relating to quality control, staffing problems, work method procedures, safety and any medical and/or legal interests. Will mediate problems of the Physician staff, such as salary adjustments, discipline and medical/legal matters. Dr. Kenton, as part of his duties as medical director, signed all requests by Mobile Health for analysis to be conducted by clinical laboratories with respect to specimens collected at the center. Dr. Kenton reviewed the clinical laboratory analysis, together with the results of any measurements or other testing procedures performed at Mobile Health. Dr. Kenton read, interpreted, and signed all those results before they were sent by Mobile Health to its patients. Dr. Kenton was responsible to supervise the quality of laboratories used for clinical laboratory tests of patients of Mobile Health. During all times material, all such tests were analyzed by a clinical laboratory licensed by the Department of Health and Rehabilitative Services. As medical director, Dr. Kenton was also responsible for the quality of the studies performed at Mobile Health, and the quality of the interpretation of medical studies. Dr. Kenton is a cardiologist, and was personally responsible for interpreting the echocardiograms performed by Mobile Health. A radiologist was under contract to Mobile Health to interpret the mammogram and ultrasound studies. At all times material, these studies were interpreted by a board certified radiologist. Dr. Kenton performed his duties as Medical Director of Mobile Health in conformance with the provisions of Section 483.308, Florida Statutes (1989). Pursuant to its license with HRS, Mobile Health was authorized by Florida's Multiphasic Health Testing Center Law to perform all medical tests which were performed at Mobile Health Corporation. Florida's Multiphasic Health Testing Center Law permitted each of these tests to be conducted by Mobile Health without a prior order from a physician. The Department of Health and Rehabilitative Services was responsible to inspect at least annually the premises and operations of all multiphasic health testing centers. Mobile Health had been subject to inspections by HRS. Mobile Health was found to be in compliance with the Florida law applicable to multiphasic health testing centers during an inspection just prior to the incidents in question. A copy of the HRS recommendation for licensure pursuant to an HRS survey conducted on June 7, 1989, disclosing "no deficiencies" was attached to the Amended Stipulated Facts as Exhibit B. The Advertisements Which Are the Subject of the Administrative Complaint On July 9, 1989, Mobile Health Corporation published an advertisement in the Tallahassee Democrat newspaper marketing its services, and advising readers that Mobile Health would be providing medical testing services in Tallahassee on July 21, 1989. On August 28, 1989, Mobile Health Corporation published an advertisement in the Panama City New Herald marketing its services, and advising residents in Panama City, Florida, that Mobile Health would be providing medical testing in Panama City on September 1, 1989. Mobile Health hired a professional advertising agency for the purpose of creating these advertisements. Dr. Kenton did not select the advertising agency, and did not advise the advertising agency pertaining to the substance or contents of the published advertisements which are the subject of these Complaints. Both the July 9, 1989, advertisement in Tallahassee and the August 29, 1989, advertisement in Panama City contained medical claims that were false, deceptive or misleading. The advertisements state in part: Test 2 - Heart Echocardiography with Doppler THIS TEST DETECTS HEART OR VALVE MALFUNCTIONS THAT COULD LEAD TO HEART ATTACKS DUE TO FATTY BLOCKAGES IN THE CORONARY ARTERIES. It is a generally accepted principle of medical practice that echocardiography has a limited role in the screening of patients for coronary artery disease because this test cannot always evaluate the presence or absence of fatty blockages. Furthermore, patients with significant coronary artery disease who have not had a prior myocardial infarction can have a normal echocardiogram. The advertisements also state in part: Test 3 - Ultrasound Screen for Prostate Cancer. THIS TEST DETECTS THE FOURTH LEADING CAUSE OF CANCER IN MEN. This safe, painless and noninvasive tests take less than 20 minutes. Mobile Health used only Suprapubic Ultrasound in its screening of patients for prostate cancer; it did not utilize Transrectal Ultrasound. It is a generally accepted principle of medical practice that Suprapubic Ultrasound is not effective in the screening of patients for prostate cancer because this test can not detect anything but the largest, most advanced cases of prostate cancer. These advertisements identified Mobile Health by name and did not identify Dr. Kenton. The advertisements contained the toll free phone number of Mobile Health. This phone number was not the phone number of Dr. Kenton's office. Although Dr. Kenton was aware generally that advertisements were being placed by Mobile Health, he did not review the advertisements which were published by Mobile Health in the Tallahassee Democrat on July 9, 1989, in the Panama City News Herald on August 28, 1989, prior to their publication. The advertisements contained a legal disclaimer as required by Section 483.305, Florida Statutes, which stated: Health screening tests may or may not alert you and your doctor to serious medical problems and are not intended to be a substitute for a physician's examination. Rule 21M-24.001(2), Florida Administrative Code, provides that: No physician shall disseminate or cause the dissemination of any advertisement or adver- tising which is in any way false, deceptive, or misleading. Any advertisement shall be deemed by the Board to be false, deceptive, or misleading if it . . . [c]ontains a mis- representation of facts . . . [m]akes only a partial disclosure of relevant facts . . . [c]reates false or unjustified expectations of beneficial assistance . . . [or] . . . [a]ppeals primarily to a layperson's fears, ignorance, or anxieties regarding his state of well being . . . [or] . . . [f]ails to con- spicuously identify the physician by name in the advertisement. There were few responses by the public to both of these advertisements. No patient has indicated any harm as a result of the advertisements or complained to DPR. The advertisements were discontinued voluntarily by Mobile Health after the deceptive nature of the advertisements were brought to its attention. There is no evidence that Dr. Kenton participated in disseminating the advertisements. Dr. Kenton did not profit as a result of these advertisements. Soon after Petitioner began its investigation into this matter, Dr. Kenton resigned as the Medical Director of Mobile Health. Mobile Health soon thereafter concluded its business operations and allowed its license with HRS to lapse. Dr. Kenton received his medical degree in 1979 from the State University of New York, Buffalo School of Medicine. He completed his internship at Jackson Memorial Hospital/University of Miami School of Medicine in 1980, and then completed his residency at the same institution in June 1982. Dr. Kenton completed a fellowship in cardiology at the Georgetown University Medical School in June 1984. Dr. Kenton is a young physician with an unblemished record. He has never previously been the subject of a DPR investigation, and has never been sued for medical malpractice. Dr. Kenton has staff privileges at several hospitals which include North Broward Medical Center and North Ridge General Hospital in Fort Lauderdale; West Boca Medical Center in Boca Raton; and Delray Community Hospital and Pinecrest Hospital in Delray Beach. The issuance of sanctions such as a written reprimand, an order of probation, or a license suspension may affect Dr. Kenton in his renewal of staff privileges at his existing hospitals, and may have adverse consequences if Dr. Kenton should apply for staff privileges at hospitals to which he is not currently on staff. The stigma of a reprimand, probation, or suspension may also adversely effect his professional standing in the local medical community and may have significant financial consequences upon Dr. Kenton. Should Dr. Kenton be found to have violated Chapter 458, Florida Statutes (1989), appropriate discipline in this matter should not exceed the imposition of a $2,500 administrative fine, plus an order requiring Dr. Kenton to cease and desist from disseminating misleading advertisements in the future, and a restriction of his medical license to prohibit him from operating any type of multiphasic mobile testing service, as defined in Section 483.288, Florida Statutes (1991), for a period of five years from the date of final action in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Kenton not guilty of the allegations found in the Administrative Complaints, and dismissing those Administrative Complaints. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June, 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June 1992. 1/Subsequently an Amended Administrative Complaint was filed on February 7, 1990. The amendment only deleted a reference to Case No. 89-05880 which had been included in the caption of the original administrative complaint by mistake. COPIES FURNISHED: Randolph P. Collette, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza - Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner has just cause to suspend Respondent, a classroom teacher, for five days without pay based upon her failure to follow the officially assigned Florida Comprehensive Assessment Test (FCAT) testing schedule, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Broward County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a seventh grade teacher at MMS, a public school in Broward County, Florida. Respondent has been employed by the School Board for approximately ten years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the collective bargaining agreement between the Broward Teacher's Union (BTU) and the School Board. Prior to teaching at MMS, Respondent taught school in Dade County for approximately 15 years. The FCAT is a test which was given annually since 1998 through the 2013-2014 school year to all Florida public school students in grades three through 11. The test measures student achievement in reading, writing, mathematics, and science based on the state's grade-level standards.2/ Respondent proctored FCAT exams since the test's inception. State, district, and school level training is provided annually to teachers, including Respondent, so they may comply with FCAT requirements and avoid potential ramifications to the school or the students for violation of those requirements. Ramifications for failing to comply with FCAT requirements include sanctions against the teacher and/or the school, and possible termination or invalidation of a school's letter grade. Teachers are specifically educated on the process of obtaining certification numbers and signing a receipt for certain materials designated to them for FCAT testing purposes. Furthermore, the teachers are provided a three-digit code which is provided to the students so that the State knows which teachers proctored which exams. The requirements and safeguards relating to properly proctoring and administering the FCAT testing are important to the integrity of such tests. 2013 FCAT The FCAT for the 2012-2013 school year was administered at MMS in April 2013. Respondent was the testing proctor during the mathematics FCAT on April 15, 2013. Respondent provided the students a testing reference sheet for the End of Course exam for an algebra class rather than the FCAT reference sheet. According to Respondent, this was the sheet that was distributed to her to provide to the students from the Guidance Department. This error was brought to Respondent's attention by students during the first session of the exam. Believing that she was not permitted to discuss the contents of the exam with the students, Respondent instructed the students to do the best they could with what they had. It is alleged that Respondent failed to follow appropriate testing procedures by not timely contacting administration or addressing the problem when the students brought it to her attention during session 1 of the FCAT Math test. Respondent's failure to address the situation, immediately, or during a scheduled break in the testing, led to the use of the wrong reference sheet for the second session as well as the first. Ultimately, the FCAT was invalidated for Respondent's students and the school district had to purchase an alternative exam for the students who were not provided the proper FCAT reference sheet. Respondent received a one-day suspension without pay, based on her failure to follow proper FCAT testing protocols, which Respondent did not contest. 2014 FCAT The FCAT testing process has been supervised by Principal Cheryl Cendon since she opened MMS as its Principal in 2002. Principal Cendon's process regarding the scheduling of FCAT testing, and assignment of teachers to groups of students to proctor, was consistent through the 2013–2014 school year. FCAT administration requires a complex schedule because of limited computer availability and teachers' scheduled planning periods and lunchtimes. The first step in this process is for Principal Cendon to prepare a draft schedule which she then shares with teaching teams to solicit their input. After receiving teacher input, Principal Cendon's second step is to meet with technical personnel to ensure that the appropriate number of computers is available for the testing as scheduled. The third step is for principal Cendon to meet with Exceptional Student Education (ESE) and English for Speakers of Other Languages (ESOL) teachers to determine whether special accommodations are required for particular students. The fourth and final step for Principal Cendon is to prepare a final schedule on colored paper to be disseminated at the FCAT teacher training session approximately two weeks prior to the beginning of testing. During Principal Cendon's tenure at MMS, teachers have often been assigned to proctor their Monday morning, first block, students for standardized testing, including for the FCAT. However, there is no requirement that teachers be assigned these groups and Principal Cendon has assigned different groups of students to teachers as needed in the past. Approximately two weeks prior to FCAT testing, the school transmits to the State a list of which students will be tested at what time, in which classroom, and by which teacher. The State then generates a ticket for each student which is provided to the students on the day of the test. On test day, teachers are required to pick up and sign out their assigned materials from a secure room monitored by Guidance. No one has the authority to modify the final schedule other than Principal Cendon. Respondent was on the "Innovators" teaching team during the 2013-2014 school year which included four other teachers. Principal Cendon met with the Innovators team for a "data chat" on February 14, 2014, to review the first draft of her FCAT schedule. At this meeting there was a discussion regarding changing the time of the testing for one lab but no discussion regarding which students were assigned to which teachers. Some members of the Innovators team, including Respondent, were not assigned their Monday morning, first block, students. On April 9, 2014, MMS teachers, including Respondent, attended FCAT training and received the final FCAT testing schedule and assignment printed on blue paper which had been prepared by Principal Cendon. This training included a PowerPoint presentation. On the fourth slide under the heading "testing reminders," teachers were instructed: Refer to schedule set up for each grade level. ASK QUESTIONS BEFORE TESTING BEGINS. Follow exact testing time and day for each session, NO DEVIATIONS. FAILURE TO COMPLY WITH THESE RULES MAY RESULT IN REPRIMAND, CRIMINAL PENALTY OR LOSS OF CERTIFICATION. Between February 14, 2014, and the first day of FCAT testing, April 23, 2014, Respondent did not request a change in the schedule from either Guidance or Principal Cendon. Respondent was concerned that she was not assigned her Monday morning block of students (Innovators E) for the 2014 FCAT. Sometime after receiving the draft schedule in February 2014, Respondent addressed her concerns with Innovators Team Leader, Kim Baker. Either before or after receiving the draft schedule, Ms. Baker briefly spoke separately to Principal Cendon and Guidance employee, Berta Hernandez-Berkowitz, and stated "we're testing our regular Monday morning groups" to which Principal Cendon and Ms. Hernandez-Berkowitz purportedly said "yes." In fact, Ms. Baker was assigned her Monday morning group of students. Respondent believes she had a similar conversation with Ms. Hernandez-Berkowitz in passing.3/ Neither Respondent nor Ms. Baker advised Principal Cendon or Ms. Hernandez-Berkowitz of their belief that the final schedule was in error because several team members were assigned students other than their Monday morning, first block. Based upon these informal and brief conversations, Respondent and Ms. Baker decided to create a different schedule for the Innovators team after distribution of the final schedule on April 9, 2014. Respondent prepared the revised schedule for the week of the FCAT because she had a teaching schedule template on her computer. Respondent disseminated it to the Innovators teachers by e-mail on or about April 14, 2014, and also advised several team members verbally prior to the FCAT on April 23 to follow the schedule which she (Respondent) created. Respondent did not send the revised schedule to Guidance or Principal Cendon. Two members of the team, Sophia Shaw and Sandy Leung, were confused by the e-mail and direction from Respondent and asked the FCAT Coordinator, Janet Jackson, prior to the test, which schedule to follow. They were instructed by Ms. Jackson to follow the blue schedule, which was the final schedule prepared by Principal Cendon. On the first morning of FCAT testing, April 23, 2014, Respondent reported to the secure room and signed out the bin of materials for Innovators E, her Monday morning group, rather than her assigned group of Innovators B. Similarly, Ms. Vargas signed out the bin of test materials for her Monday morning group, Innovators D, rather than her assigned group for FCAT, Innovators C. When Ms. Leung arrived to sign out her assigned bin for Innovators D, she initially grabbed the wrong bin for Innovators B because the materials for D had already been removed from the room by Ms. Vargas. Ms. Leung realized the error because Innovators B was assigned to Respondent. Ms. Leung brought this error to the attention of Ms. Jackson. Respondent and Ms. Vargas were instructed to immediately return to the secure room to pick up the correct materials as assigned on the final schedule prepared by Principal Cendon. When Ms. Shaw arrived to pick up her assigned materials for Group E, she found they had already been checked out by Respondent and only the materials for Group C remained. Both Ms. Leung and Ms. Shaw had to wait for their materials to be returned to the test room and be recounted before they could go to their classrooms. This resulted in a delay of the start of the test for Ms. Shaw's students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order finding that just cause exists to suspend the employment of Respondent, Nicole Pollino, without pay for a period of five days for gross insubordination. DONE AND ENTERED this 30th day of April, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2015.
The Issue The issue in this case is whether just cause exists for Petitioner, Hernando County School Board (the “School Board” or “Board”), to terminate the employment of Respondent, Renee Koulouris.1/
Findings Of Fact The School Board is responsible for hiring, supervising, and firing all employees within the Hernando County School System. This responsibility includes taking administrative action when an employee violates any rule or policy of the Board. Mrs. Koulouris was hired by the School Board approximately 15 years ago as a fourth grade teacher. At the beginning of the 2016-2017 school year, she was transferred to a fifth grade class in order to provide assistance to a struggling team. Her principal, Mr. Piesik, described Mrs. Koulouris as a very strong teacher with very high standards. Mr. Piesik said Mrs. Koulouris ran her classroom like “a well-oiled machine.” Mrs. Koulouris has had no disciplinary actions prior to the incident at issue in the present proceeding. One of the duties of a fifth grade teacher is to administer the Florida Standards Assessment (“FSA”) tests in four different subject areas: Language Arts; Math; Writing; and Science. The tests are an integral part of a student’s education and are used to determine placement in the next grade level, i.e., which classes the student will be eligible for upon advancement to middle school. It is imperative that FSA tests are administered correctly and securely. Extra measures are taken to ensure that all students take the tests independently, without assistance from anyone. Protocols are put in place to monitor students who are taking the tests. Mrs. Koulouris attended all of the required training prior to administering the tests. She also signed the Test Administration and Security Agreement, and the Test Administrator Prohibited Activities Agreement, acknowledging her understanding of the test protocols. Some of the FSA tests are administered in the classroom; some are done in the computer lab. In either case, the teacher administering the tests must diligently follow all rules and procedures. Fairness and honesty is paramount. The Board recommends the presence of a proctor in addition to the teacher when tests are given to certain sized classes. No proctor was present when the tests at issue herein were administered. Mrs. Koulouris is accused of inappropriately assisting students during the FSA tests she administered in the 2016-2017 school year. Those tests were taken over a period of three months: The writing test was administered on February 20, 2017; the English test was given on April 19 and 22, 2017; the Science tests were given on May 1 and 2, 2017; and the Math test was done on May 5 and 9, 2017. During this same time frame, Mrs. Koulouris’ classes took a number of practice FSA tests (as well as regular tests in various subjects). Mrs. Koulouris is alleged to have assisted students by signaling them during the FSA tests to indicate that their answer to a particular question might be wrong. This was allegedly done by tapping a student or making a particular face at them. Any student so notified would then be expected to change their answer. It is also alleged that Mrs. Koulouris would stand behind students for long periods of time, tapping or nudging them if they wrote or entered an incorrect answer. If the allegations are true, Mrs. Koulouris would be in violation of the test protocols and policies. Mrs. Koulouris adamantly and credibly denied any such behavior. She describes her “assistance” to the students as follows: She explains the test-taking process. She stresses the need to concentrate and stay on track. She tells them that if they do not know an answer, to move on and come back to that question later. She reminds them to be thorough and to take their time, thinking about each question carefully. She instructs the students to go back over their work when they finish, time allowing. In order not to disturb the students while they are testing, she prefers to remain at her desk rather than walking around the room. However, she does move around the room on rare occasions, or when she sees a student who is off task, e.g., sleeping or gazing out the window. She would sometimes tap a student’s desk to get them back on track or, in some instances, to wake them up. The testimony of the two students who appeared at final hearing in this matter supports Mrs. Koulouris’ description of her normal process for administering an FSA test. In the weeks leading up to the FSA tests, Mrs. Koulouris would give a number of practice exams so that the students would become accustomed to the test format. She does help students during the practice tests, but generally for the purpose of keeping them focused, not to correct their answers. She uses facial expressions and eye contact to provide that assistance. Mrs. Koulouris’ demeanor at final hearing gave credence to her testimony. She seemed very sincere concerning her actions and her entire testimony was credible. The allegations concerning Mrs. Koulouris’ actions during the 2016-2017 FSA testing cycle came about towards the end of that school year. As she described it: Fifth grade “graduation” occurred on May 18, 2017, a Thursday, at which time awards were handed out to students based on their performance. The following day, Friday, Mrs. Koulouris was in a multipurpose room tending children who would be picked up by their parents. Other adults were present in the room. Mr. F., a fellow Suncoast teacher whose son was a student in Mrs. Koulouris’ class, approached Mrs. Koulouris. Mr. F. angrily asked why his son had not received a “gold award” at the graduation ceremony held the day before. Mrs. Koulouris explained that the child had not achieved the necessary grade point average to receive a gold award. Mr. F. told her he was very “pissed off” and that if he found out that Mrs. Koulouris did something “on purpose” to hurt his son, he would be extremely angry at her. Mrs. Koulouris felt very intimidated by Mr. F.’s demeanor and his language. She was also very surprised, as she thought she had a good relationship with the student and had been fair with him. Mrs. Koulouris reported the incident with Mr. F. to her team leader and then to the principal, Mr. Piesik. Mr. Piesik reprimanded Mr. F. for his behavior and told Mr. F. not to have any further contact with Mrs. Koulouris unless an administrator was present. On the following Monday, Mr. F. went to Mr. Piesik and reported that-–according to statements made by Mr. F.’s son over the weekend-–Mrs. Koulouris had improperly assisted her students during the FSA tests. The timing of Mr. F.’s allegation against Mrs. Koulouris is extremely suspect. The principal immediately undertook an investigation to determine whether the allegation had any merit. He prepared a list of questions to be posed to Mrs. Koulouris’ students. Mr. Piesik went to the classroom on May 23, 2017, and talked individually with several randomly selected students, asking them the questions he had prepared in advance. (Mr. F.’s son was intentionally excluded from the group of students to be questioned.) Some of the questions were very innocuous, i.e., Mr. Piesik asked about the school year and about the FSA testing in general. He then pointedly asked, “During the FSA testing, did your teacher do anything to help students get the right answers?” A few of the students apparently indicated that Mrs. Koulouris had said something about making a face or nudging them if they were off task, gave a wrong answer, or were making mistakes. Others said that no such comments were made by Mrs. Koulouris. Mr. Piesik compiled the students’ answers to his queries and contacted two school district administrators: Matthew Goldrick, supervisor for professional standards; and Linda Pierce, supervisor of assessment and accountability. The administrators suggested Mr. Piesik continue his investigation of the matter. Next, Mr. Piesik drafted a form containing three statements and one question. The singular question on the form was, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” He placed “Yes” and “No” lines beneath the question to record the students’ responses. The three statements drafted for inclusion on the form were: (1) “Yes I knew Mrs. Koulouris was helping students on the test.” (2) “Mrs. Koulouris did NOT help me on the test.” (3) “Mrs. Koulouris helped me on the test by giving a tap or a look so I knew I needed to change my answers.” Beneath the question and statements were these words: “Please indicate which test she helped you on. Math – Reading - Science.” On the following day, May 24, 2017, Mr. Piesik interviewed all 22 of the students who had undergone FSA testing with Mrs. Koulouris, including Mr. F.’s son. This time, the principal used his newly created form containing the one question and three statements. If the student agreed with a statement when it was read to him or her, Mr. Piesik would place a check next to the statement. He would circle either yes or no after asking the question, depending on the student’s answer. The principal testified that “all 22 students” answered “Yes” to the question of whether Mrs. Koulouris said she would tap them if their answer was wrong. Of those students, 12 said Mrs. Koulouris was “helping students” during the test, seven indicated they had been helped, and 13 said Mrs. Koulouris did not help them. However, some of the same students who said their teacher was helping students when asked on May 24, 2017, had said just the opposite on May 23, 2017. The discrepancy in their answers leads to the conclusion that the questions, as posed, were either unclear to the students or were unintentionally leading in nature. By way of example, student C.M.F., who had presumably answered “Yes” to the question posed on May 24, 2014, as to whether Mrs. Koulouris had helped students during the FSA testing (since all students had responded that way), said in her deposition that she misunderstood the question Mr. Piesik had asked her, that it was “all a misunderstanding.” She maturely opined that, “So, it is very commonly known that people cannot understand something because it was worded a way that they thought it would mean something else. And I thought what the principal, Mr. Piesik, said, he had asked me if she had helped with the – if Mrs. Koulouris had helped with the test, but he didn’t say the specific FSA so I thought he was talking about tests in general. And sometimes she would explain, like rephrase stuff and explain it to us for the normal tests, but never for the FSA.” This sort of equivocation renders the students’ statements virtually uncredible. Two of the students testified at final hearing. Their testimony was insufficient to adequately corroborate the hearsay evidence found in the written forms. Student A.S. said at final hearing that “before tests” Mrs. Koulouris would tell us she would tap students on the shoulder if they were “way off track” and you “needed to get back in the game.” However, she did not remember any student being touched during the FSA tests. A.S.’s testimony was too equivocal to establish whether or not Mrs. Koulouris had assisted any students during the FSA tests. It is notable that the School Board did not cite to any of A.S.’s testimony from final hearing, but instead relied upon the less certain and unclear statements made by students in their depositions, which are both hearsay in nature and less credible than live testimony. Student A.W.’s memory of the events was even more clouded. She believes she remembers one student messing up the order of his responses (i.e., answering up and down rather than side to side on the answer sheet) and Mrs. Koulouris helped him get realigned, but does not believe Mrs. Koulouris otherwise assisted anyone during the tests. When confronted with her response to the principal’s form questions, A.W. simply could not remember being asked the questions or how she responded. On May 23, 2017, Mr. Piesik had asked her the question from his form, “During the FSA testing, did your teacher do anything to help students get the right answers?” She responded, “No.” On May 24, 2017, she answered “Yes” to the question, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” At final hearing, A.W. answered “No” to the question, “Did you see or hear Mrs. Koulouris make the statement, ‘If I look at you funny or strange or if I give you a tap on the shoulder, that means you need to change your answers’?” Again, the testimony was inconsistent and was not sufficient support to corroborate or affirm the information found in the forms.2/ The truth of whether Mrs. Koulouris helped students on the FSA tests cannot be established by Petitioner’s evidence, the supposed student responses as tallied by Mr. Piesik, due to their hearsay nature and various discrepancies. When considering how the allegation against Mrs. Koulouris first arose, i.e., after her confrontation with her fellow teacher, Mr. F., and the equivocal testimony of the students, there is insufficient basis to support the allegations against her. Findings of Ultimate Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Accordingly, whether conduct alleged in an administrative complaint violates the laws, rules and policies set forth in the charging document is a factual, not legal, determination. The Board has not met its burden in this case of proving that Mrs. Koulouris engaged in the conduct for which she was charged. Although Mr. Piesik testified as to his conclusion based on interviews with students, that conclusion was not corroborated by the students’ testimony. The double hearsay nature of the students’ responses to Mr. Piesik’s questions, coupled with the vague recollections of students actually testifying, is wholly insufficient to satisfy the Board’s burden of proof. It is clear Mrs. Koulouris gave her students instructions about how to take the FSA tests, administered practice test at which the strict FSA rules were not applicable, monitored the tests and redirected students who were sleeping or otherwise distracted, and sometimes walked around the classroom. But the evidence is woefully short of proving wrongdoing or improper assistance to students. Notably, the deposition transcripts offered into evidence jointly by the parties were not helpful to the finder of fact. The students’ responses to questions were vague and disjointed. Each of the parties interpreted the students’ statements differently, each seeming to think the statements supported their position in this matter. Besides the obvious hearsay nature of the evidence, the statements were nebulous, and lacking clarity or persuasiveness. The students contradicted each other, some could not even remember where they were sitting during testing, and their memories seemed, at best, confused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Hernando County School Board, finding no cause to terminate the employment of Respondent, Renee Koulouris, as there is insufficient evidence that she violated statutes, rules or policies regarding the administration of FSA tests. DONE AND ENTERED this 3rd day of April, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2018.
The Issue Whether Respondent's proposed decision to award a contract to Florida Youth Academy, Inc., pursuant to Request for Proposals No. F4G01, is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On June 19, 2001, the Department issued and advertised RFP No. F4G01 for the design, implementation, and operation of a moderate risk residential program with a daily capacity of 30 youthful female offenders who have been committed to the Department after having been assessed and classified as a medium risk to public safety. This was an on-going program, and PEMHS was the incumbent contractor. PEMHS and FYA submitted proposals, which were opened on July 24, 2001. Three qualified agency employees, Mary Mills, Nicholas Lefrancois, and Jennifer Gallman, were given the assignment of evaluating the proposals in accordance with the requirements of the RFP and an evaluation score sheet providing evaluation and scoring criteria. The evaluators worked separately and returned their completed score sheets to Genanne Wilson, the contract administrator who developed the RFP. Ms. Wilson tabulated the scores. On August 31, 2001, the Department posted the tabulations for the RFP, recommending the contract be awarded to FYA. FYA received 328 points, and PEMHS received 288 points. FYA's score was corrected to 303 points when it was discovered that Ms. Wilson had applied an incorrect weighting factor to the points awarded FYA for CMBE participation. The correction did not affect the outcome of the process. PEMHS filed a formal written protest on September 14, 2001, and an amended formal written protest on October 19, 2001. Section L of the RFP set forth the proposal award criteria. Subsection L.1 described the RFP's sole "Fatal Item" as follows: Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration. Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgment Form (PUR 7033)? _____ Yes No If the above item is marked "NO" the evaluation of this proposal will STOP! The referenced Form PUR 7033 is prescribed by the Department of Management Services, Division of Purchasing, for inclusion in all agency RFPs. Rule 60A-1.002(7)(c), Florida Administrative Code. The form lists 17 separate General Conditions applicable to all contracts, provides potential vendors with information as to posting of proposal tabulations, and, most importantly, provides space for a manual signature by an authorized representative of the prospective vendor, stating the vendor's assent to the following statement: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a Proposal for the same services, supplies or equipment and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a Proposal to an agency for the State of Florida, the Proposer offers and agrees that if the Proposal is accepted, the Proposer will convey, sell, assign or transfer to the State of Florida, all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Antitrust Laws of the United States and the State of Florida for the price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the Proposer. The vendor's manual signature on Form PUR 7033 binds the vendor to the terms of its proposal, should it prevail at the end of the evaluation process. The RFP was made available to vendors via download from the Department's Internet web page. The web page allowed the downloading of the Form PUR 7033, but also allowed the downloading of a form similar but not identical to Form PUR 7033. This second form included the language quoted above binding the vendor to its proposal and the space for the manual signature assenting to those terms, but did not include the 17 General Conditions found on the Form PUR 7033. The proposal submitted by FYA employed the second form, not the Form PUR 7033. It included the manual signature of Dr. Devyani Desai, the president and chief executive officer of FYA, indisputably a person authorized to bind FYA to its proposal. PEMHS' protest contends that, given the strict language of the "Fatal Item" RFP term, FYA's proposal should have been rejected out of hand for failure to include the mandatory Form PUR 7033. Genanne Wilson, the contract administrator, was the person charged with deciding whether the FYA proposal should be rejected. She consulted a Department attorney, who advised her that the second form was acceptable and met the criterion for submission of a Form PUR 7033. Based on that advice, Ms. Wilson distributed the FYA proposal to the three evaluators for scoring. The evaluators' score sheets contained a space calling for them to confirm the presence of the Form PUR 7033, but the testimony at the hearing established that the evaluators relied on Ms. Wilson for that information. Mr. Lefrancois testified that he assumed he would not have received the proposals for evaluation at all had they not contained the Form PUR 7033. The seventeen General Conditions set forth on Form PUR 7033 are commonly referred to as the "boilerplate" language included in any contract issued pursuant to an RFP. They include the terms of submission and opening of proposals, bid protest procedures, terms of invoicing and payment, conflict of interest notices, public records requirements, and contractual restrictions regarding assignment, default, advertising, liability, and cancellation. All of the substantive areas of the General Conditions were set forth in substance, if not precisely the same form, within the RFP itself. While pressing its claim that the literal language of the RFP should apply to disqualify FYA's proposal, PEMHS offered no evidence that FYA gained any competitive advantage by submitting the alternative form that it downloaded from the Department's own web site. No party contended that the submission of the alternative form would release FYA from any of the General Conditions. The Department has modified Form PUR 7033 to include blank signature spaces to be signed in the event the bidder enters into a contract with the Department. PEMHS argued that FYA's failure to include the modified Form PUR 7033 meant that FYA and the Department would be unable to finalize the contract by signature. PEMHS offered no statutory or rule citation that would require the contract to be executed on the modified Form PUR 7033, or that would prohibit the Department from drafting a separate document for the parties to sign in execution of their contract. Greg Chown, the Department's director of contracts, testified that the lack of a signature page in the bid documents would not prevent the Department from subsequently entering into a contract with a successful bidder. In summary, FYA filled out and submitted a form provided by the Department. The form bound FYA to its proposal just as the Form PUR 7033 bound PEMHS to its proposal. FYA gained no competitive advantage by submitting the alternative form. The RFP labeled submission of the Form PUR 7033 a "Fatal Item," but the clear intent of this requirement was to ensure a firm commitment by the vendor, not to trap an unwary bidder who inadvertently downloaded the alternative form from the Department's own web page. The alternative form signed by FYA's president complied with the substance of the "Fatal Item" requirement. In view of all the evidence, FYA's failure to submit a Form PUR 7033 was at most a minor irregularity, properly waived by the Department in the interest of preserving competition in a situation in which only two proposals were received. Section K.3.3 of the RFP provided that the bidder must present "a letter of intent to enter into local interagency agreements required in program objectives: submit cooperative agreement(s) or contract(s) with local school districts describing the manner in which education services shall be provided in performance of this contract." PEMHS contended that one evaluator, Mr. Lefrancois, awarded FYA a "satisfactory" score of three points for this item despite the fact that FYA did not submit the required cooperative agreement or contract.1 In response to Section K.3.3, FYA submitted a letter from Frank Potjunas, the supervisor of dropout prevention services for Pinellas County Schools. The letter, addressed to FYA's president, stated: It has come to my attention that you are applying to the Department of Juvenile Justice to provide a 30 bed residential program for moderate risk girls at your Largo facility. As a Pinellas County School administrator and a member of Florida Youth Academy's Advisory Council, I have spent many days at your program. I have worked closely with the FYA administration and staff and I am aware of the services and care you provide to at-risk youth. I support your application, and if I can be of any further help please let me know. PEMHS contended that the above letter did not constitute either a letter of intent or an actual contract as contemplated by Section K.3.3 of the RFP, and that Mr. Lefrancois therefore erred in awarding FYA three points for this item. PEMHS also pointed out that evaluator Mary Mills agreed that the FYA response was inadequate and that she awarded FYA only two points for this item. The third evaluator, Jennifer Gallman, also awarded FYA three points for this item. She testified that a cooperative agreement signed by all parties would be an ideal submission, but that only the incumbent bidder can realistically be expected to have such an agreement in place. A bidder who does not enjoy the advantage of incumbency should demonstrate that it has made contacts within the community and enlisted support for its prospective program. Ms. Gallman was satisfied that the letter quoted above satisfied Section K.3.3 when read in conjunction with its accompanying text in the FYA proposal: Florida Youth Academy intends to modify existing cooperative agreement [sic] with the Pinellas County School Board to provide onsite dropout prevention programming for these additional beds. There will be one classroom for every 19 youth. A letter of intent from Pinellas County School System is included in this submittal. In summary, the issue raised by PEMHS regarding Section K.3.3 amounts to no more than a minor difference of opinion among the evaluators. Two of the evaluators found FYA's response "adequate" and awarded three points. One of the evaluators found FYA's response "poor" and awarded two points. Either opinion is rational and defensible. Nothing in the FYA response to Section K.3.3 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. Section K.4 of the RFP, entitled "Organizational Capability," required the bidder to submit seven items: An organization chart identifying relationships between dedicated program staff and corporate staff, along with a narrative detailing the capacity of program staff to accomplish program objectives. A synopsis of corporate qualifications indicating ability to manage and meet performance objectives of the proposed program, including copies of corporate documents. A plan to illustrate adequate internal administrative review and monitoring services to assure performance for the program. A resume for each professional staff member to include name, position titles, certifications and qualifications of those providing service. A staffing plan to include name, position titles, and weekly hours allocated to ensure quality service delivery. Narrative description that outlines the arrangements that will be in existence at the time of contract award to rent, purchase or otherwise acquire the needed facilities, equipment or other resources required to perform the contract. Narrative outlining the Offeror's ability to perform the contractual services taking into consideration any existing contracts with the Department, other state agencies or any other agency in which the Offeror has entered into a contractual relationship.2 PEMHS contended that FYA's proposal did not address items 3 and 5 of Section K.4, but that two of the evaluators nonetheless awarded FYA an "adequate" score of three points for this section, while the third evaluator awarded a "poor" score of two points. While FYA's proposal did not separately set out the "plans" referenced in items 3 and 5, a fair reading of the proposal as a whole could lead a rational evaluator to conclude that FYA addressed the substance of those items. As with the dispute over the scoring of Section K.3.3, this issue involves a minor difference of opinion among the evaluators as to the adequacy of FYA's response. Two of the evaluators, judging the proposal in its entirety, determined that FYA adequately addressed the requirements of Section K.4. One evaluator disagreed, finding the response "poor." Either opinion is rational and defensible. Nothing in the FYA response to Section K.4 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. PEMHS complained that evaluator Mary Mills changed her score for two items in her evaluation of PEMHS' proposal. The evidence established that in one instance, Ms. Mills lowered the score from three points to two. In the other instance, Ms. Mills raised the score from two points to three. The evidence further established that Ms. Mills made these changes on her own, prior to submitting her completed evaluation to Ms. Wilson. In each instance, her completed review of the entire PEMHS proposal caused Ms. Mills to reconsider the score she had preliminarily awarded. PEMHS failed to establish that Ms. Mills did anything inconsistent with the duties of a conscientious evaluator. Finally, PEMHS alleged that FYA submitted false information concerning its past performance. Section K.4.1 of the RFP set forth the requirement for documentation of past performance: The Offeror shall submit documentation to support the following: An established history of program implementation within the fiscal constraints of any previous contracts. Achieved measurable results in educational achievements by participants. Satisfactory or higher ratings in a similar program Quality Assurance Evaluation. Involvement by the community in which the program is located indicating the community's support for the continuation of the program, such as local boards, volunteers, local financial or in-kind support, and support by local governmental organizations. Any documentation to support the program's recidivism rates for clients served. The corresponding section of the score sheet provided a possible five points for each of the five aspects of past performance listed in Section K.4, for a possible total of 25 points. Each of the evaluators awarded FYA an "adequate" score of three points for each of the items, except for the item corresponding to "satisfactory or higher ratings in a similar program Quality Assurance Evaluation." For this item, Mr. Lefrancois and Ms. Gallman awarded FYA a "very good" score of four points. Each of them noted that the superior rating on this item was based on FYA's having operated other programs that had achieved "deemed" status, the highest rating available under Quality Assurance Evaluations conducted by the Department. PEMHS alleged that the experience claimed by FYA in its proposal is actually that of another company, Florida Health Facilities, L.P., the assets of which FYA acquired in 2000. PEMHS claims that it was misleading, if not actually false, for FYA to claim credit for accomplishments achieved prior to 2000, and that the evaluators' crediting FYA with those accomplishments fatally undermined the integrity of the procurement process. Contrary to PEMHS' implication, FYA's proposal made no effort to disguise the facts. It stated, in pertinent part: Dr. Devyani N. Desai is the President & CEO of Florida Youth Academy, Inc., which was formed in September 2000 to acquire Florida Health Facilities' business and property. (p. 36) * * * Florida Youth Academy operates 132 beds at the Largo facility, which has received deemed status every year since 1998. It also leases Wilson Youth Academy facility at Land O'Lakes of 32 moderate risk beds. This facility has also received deemed status since 1999. Through the change of ownership FYA has retained all the key management personnel. (p. 37) * * * As noted in the Organizational Capability section of this proposal, FYA programs formerly owned and operated by Florida Health Facilities, L.P., has been [sic] a proven provider of female and female [sic] services for the State, and also the Circuit 6 service area. Along with general program implementation, Florida Youth Academy has also been successful in maintaining financial stability and utilizing the per diem dollars within the constraints of the contract. The formalized report of the audit for year 2000 will be made available upon request. Examples of FYA's ability to provide quality program [sic] is outlined below: FYA currently operates four treatment programs, with varying levels of care. The programs consist of 96 High Risk, 18 Moderate Risk, 18 Low Risk and additional 32 Moderate Risk program [sic] located in another county. Three of the four residential commitment programs have received excellent quality Assurance rating with deemed status results for a consecutive two-year period. (p. 37-38) * * * The facilities have received five year's [sic] of Quality Assurance surveying. Each year ongoing improvements have been evident through increasing scores and achievement of deemed status ratings. Since program development, all levels of care have been proven to be effective at implementing which [sic] meet and exceed QA standards. In the most recent survey of 2000, all the programs achieved and/or maintained deemed status reporting . . . . (p. 38) * * * The current programs at the facility of Florida Youth Academy were previously owned and operated by Florida Health Facilities, L.P. The programs have been operated consistently through change of ownership. The recidivism rate at FYA is below average for comparable programs. The most recent experience is 28% and 30% for High Risk and Moderate Risk programs respectively. (p. 38) PEMHS' implication that FYA submitted false information is unfounded. As the quoted examples from its proposal indicate, FYA directly stated that it had acquired the assets of Florida Health Facilities in 2000, and emphasized that it had made strong efforts to maintain continuity of personnel and services during the transition. PEMHS offered no evidence to document that FYA has failed to maintain the documented quality of the "deemed" facilities it now owns. It was not arbitrary, capricious, or contrary to competition for the evaluators to accept FYA's representations as to the historical and continuing quality of the programs it acquired, absent any evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a moderate risk residential program in Pinellas County for 30 female offenders, pursuant to RFP No. F4G01, to Florida Youth Academy, Inc., and dismissing the protest of Personal Enrichment Through Medical Services, Inc. DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2001.
