The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has been a Florida-certified teacher. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board). Respondent is a dedicated educator who has a passion for teaching. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/ The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/ It contains multiple choice questions testing basic skills in reading/communications and mathematics. It has been administered since the 1980's and has always been a "secure" test. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/ Having to replace one of these "editions" because of a breach of security would entail "significant cost." Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator. The importance of maintaining test security was emphasized during the training. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials. The training materials repeatedly warned that test administrators were not to open the test booklets. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Give examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet; Coach examinees during testing or alter or interfere with examinees' responses in any way; Make answer keys available to examinees; Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing; Fail to follow test administration directions specified in the test administration manuals; or Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule. Rule 6A-10.042, Florida Administrative Code, provides as follows: Maintenance of Test Security Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. Examinees shall not be given answer keys by any person. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following: All test materials shall be kept in secure, locked storage prior to and after administration of any test. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations. (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43, 45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that item. 7/ Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya. She did not try to hide from Ms. Noya that she was looking at an open test booklet. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day). Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 9th day of September, 2002.
The Issue Whether or not Respondent employer has committed an unlawful employment practice in violation of the Human Rights Act of 1977, as amended, by termination of Petitioner's employment on the basis of her sex (female) or by retaliatory discharge for Petitioner's participation in another female employee's Equal Employment Opportunity Claim.
Findings Of Fact Respondent Florida Power Corporation (FPC) is an electrical utility engaged in the generation, transmission, and distribution of electricity. At all times material, it qualified as an "employer" under the relevant statutes. Petitioner Karen Austin, a white female, was initially employed by FPC in May 1985 at its Crystal River, Florida, production site. The Crystal River production site consists of five generating units-- one nuclear unit and four coal-fired units. The coal-fired units are Units 1 and 2 located on the south side and Units 4 and 5 located on the north side. FPC maintains a five-shift rotation in coal handling with a shift supervisor responsible for each shift of employees. The five shift supervisors report directly to John Price, Site Operations Superintendent, who is responsible for all coal handling operations at the Crystal River site. Mr. Price reports to Ed Carnahan, Crystal River Coal Plant Site Support Manager, and Mr. Carnahan reports to R.C. Bonner, Site Director, Fossil Operations. Danny Douglas, Assistant Site Support Manager, is also a supervisor of Mr. Price. From June 1987 until her termination from employment on October 13, 1988, Petitioner worked as an assistant fuel handler, which is the entry level position in the coal handling department. She was the only female in this job description on her shift. Lynn Graves-Donaldson testified to overhearing some generalized adverse comments from unidentified male shift supervisors and coworkers about not wanting to train or work with a female when Petitioner was promoted in 1987 to assistant fuel handler. While employed as an assistant fuel handler, Petitioner reported directly to J. D. Stephens, who reported directly to John Price. Petitioner's employment relationship with FPC was regulated by the collective bargaining agreement between FPC and the International Brotherhood of Electrical Workers (IBEW). In January 1988, John Price and other management personnel began receiving telephone calls from local businesses complaining that Petitioner had written and given them bad checks. Writing bad checks is a violation of FPC policy. Section 7.3 of FPC's Human Resources Manual states, "Employees who do not handle their personal or financial affairs without reflecting discredit upon themselves and the company are not desirable employees, and are, therefore, subject to discharge." The codified policy does not facially discriminate, by sex or otherwise, against any employee or class of employee. As one of the largest employers in Crystal River, a small community, FPC attempts to maintain good community relations with its "clients." Due to its self-cast good neighbor/good utility role, FPC pays greater attention to the private, off-job site activities of its employees than many other employers would. In so doing, its management personnel regularly rely on hearsay in the nature of complaints, gossip, and newspaper articles in the administration of its policy codified in the FPC Human Resources Manual. FPC tries to follow a progressive discipline procedure, depending on the severity of the offense against its codified policy. With employee problems such as writing bad checks, the steps generally consist of an informal talk by the employee's immediate supervisor; a counselling session; an oral reprimand; a written reprimand; and suspension without pay and/or termination. On one occasion, John Price counselled a male employee (race not in evidence) concerning bad checks, and that employee paid up with no further disciplinary action. FPC has also discharged male employees for violations of its policy. Richard Brown (Black male) and Richard Frankie (white male) were discharged by FPC on February 6, 1985 and May 5, 1986, respectively, for failing to handle their financial affairs without reflecting discredit upon themselves and the company. The precise job status of these male employees is not in evidence, but all employees, regardless of job description, are subject to the rules and policy contained in the FPC Human Resources Manual, and so these employees may be considered employees who are "substantially similar" to the Petitioner for purposes of this proceeding. After receiving the initial complaints about Petitioner's financial affairs, John Price asked J. D. Stephens, Petitioner's immediate supervisor, to discuss the problem with Petitioner. Mr. Stephens subsequently reported back to Mr. Price that he had talked with Petitioner on February 23, 1988 and she agreed to take care of the debts occasioned by her bad checks. However, weighing the credible evidence as a whole, it is found unlikely that such a conversation ever occurred between Mr. Stephens and Petitioner or at least that it occurred on that date. In the course of his testimony, Mr. Stephens' candor and demeanor on this subject did not comport with that of a truthful person. Moreover, in the course of hearing, it became clear that Mr. Stephens had made false reports or had failed to transmit relevant employee information to Mr. Price on other occasions. Also, Petitioner was not regularly on the plant premises during this period of time due to her recuperation from a work-related hiatal hernia. Nonetheless, Mr. Price believed Mr. Stephens' representation at the time it was made in February or March of 1988. In February 1988, FPC had received a complaint from The Jeanery that Petitioner had written that business a check on a closed account. The Jeanery made a second complaint to FPC by letter dated March 3, 1988, and since Petitioner had failed to correct the problem, Mr. Price personally conducted a counseling session with Petitioner on March 31, 1988 to discuss the complaint from The Jeanery and the other complaints that FPC had received from local businesses. At their March 31, 1988 meeting, Mr. Price showed Petitioner Section 7.3 of FPC's Human Resources Manual which states that employees who fail to handle their financial affairs without reflecting discredit upon themselves and the company will be subject to discharge. Petitioner acknowledged to Mr. Price that she understood FPC's policy and would take care of the debt to The Jeanery. Following their March 31 meeting, Mr. Price received additional complaints from local businesses that Petitioner was continuing to write bad checks. On May 31, 1988, Mr. Price received a complaint from Jan's Uniforms that Petitioner had written that business a bad check. Mr. Price also received similar complaints from the Denim Patch, Cindy's Beauty Salon, Chest and Drawers, and Publix Supermarket. On July 6, 1988, FPC received a complaint from Joan's Consignment Boutique that Petitioner had written that business a check on an FPC credit union account which had previously been closed. Two days later, on July 8, 1988, Mr. Price received a bad check complaint from One Hour Photo. After receiving the call from One Hour Photo, Mr. Price called Petitioner, informed her of the complaint, and told her to go pay the debt. On July 9, 1988, Mr. Price received a complaint from Meineke Muffler that Petitioner had written that business a check on a closed account. Due to the number of bad check complaints since the March 31 meeting, Mr. Price determined that further disciplinary action against Petitioner was warranted. He scheduled a meeting with Petitioner, J. D. Stephens, and Sid Miller, Petitioner's union representative, on July 11, 1988 at 10:45 a.m. During this meeting, Mr. Price explained to Petitioner that FPC had received numerous complaints since their March 31 meeting, and he provided her copies of some of his notes detailing the complaints. Petitioner established that Mr. Price did not give Petitioner all of his notes, but that fact is not dispositive in this proceeding since it does not substantially affect the situation for which he ultimately held Petitioner responsible. (See, Findings of Fact 37-41, infra.) Mr. Price also issued Petitioner an oral reprimand and told her that her job was in jeopardy if she did not straighten out her bad check problem. Petitioner told Mr. Price during their July 11 meeting that she was not writing the bad checks and that the checks were being written by her husband or his girlfriend. Although Mr. Price told Petitioner that the checks were in her name and it was her responsibility to correct the problem, Mr. Price later the same day telephoned Claudia Keiser with One Hour Photo to verify whether Petitioner had written the bad check. Ms. Keiser described the Petitioner as the person who had written the check and also gave Mr. Price the driver's license number that had been given to her by the party who had written the check. Mr. Price confirmed to his satisfaction that the number given him by Claudia Keiser was Petitioner's driver's license number. Mr. Price also contacted Jan's Uniforms to verify that it was Petitioner who had actually written the bad check to that business and was satisfied after that telephone conversation that Petitioner had, indeed, given the foregoing businesses the bad checks they had complained about to FPC. Without making further inquiry, John Price also extended his disbelief of Petitioner's explanation concerning her husband and his girlfriend to all the other complaints against Petitioner of which he was aware, which disbelief contributed to his growing impression that Petitioner was not cooperating in resolving her bad check problem. Despite the issuance of the July 11 oral reprimand to Petitioner, FPC received additional complaints from One Hour Photo on July 11, Meineke Muffler on July 29, and Jan's Uniforms on August 1 that Petitioner had still not satisfied her debts. On August 4, 1988, Mr. Price prepared a written reprimand for Petitioner due to her failure to handle her financial affairs without reflecting discredit upon herself and the company. The written reprimand was presented to Petitioner on August 10, 1988. The written reprimand specified that Petitioner had fourteen days, until August 24, in which to make restitution to the businesses that had registered complaints and to provide FPC proof of restitution. The letter also notified Petitioner that any further complaints or failure to comply with the letter would result in termination of her employment. As of August 10, 1988, Mr. Price understood "further complaints" to mean any complaints regarding checks that were written after August 4, the date of the written reprimand. At some point, a misunderstanding occurred between Petitioner and Mr. Price as to whether he had required her to show him receipts for payment of her debts. At some point, Petitioner explained to Mr. Price that she could not pay off all her debts immediately and in full. On August 23, Petitioner again met with Mr. Price and provided proof that she had made payments to five of the 10 businesses to whom he had required she make restitution by August 24. One or more of the 10 businesses were closed or the accounts were closed out. Petitioner told Mr. Price that she was unable to contact the remaining businesses because her car was in the shop. At that point, Mr. Price orally altered the written reprimand and told Petitioner that he would accept a telephone call from the remaining businesses or other proof from her that she was attempting restitution to the remaining businesses rather than proof of full, immediate restitution to all the businesses. Petitioner also questioned Mr. Price during the August 23 meeting as to what "any further complaints" meant. As of that date, Mr. Price explained to Petitioner that from that point on he understood the questioned term to mean a complaint regarding a new bad check that had been written after August 4 or a complaint that Petitioner was not making restitution pursuant to the payment schedule that she had arranged with each business concerning the old bad checks written prior to August 4. Mr. Price told Petitioner that he considered complaints from businesses on those grounds to constitute a "further complaint," for which Petitioner could be discharged. Mr. Price initiated an August 24 meeting by asking to see Petitioner's receipts. Petitioner submitted proof on August 24 that she had arranged payment schedules with three businesses. At their August 24 meeting, Petitioner also raised her safety concerns about male employees arriving at work intoxicated. Mr. Price regarded her accusations concerning safety hazards to be digression or distraction, refused to discuss the safety issues raised by Petitioner at that time, and concentrated the conversation on her bad checks. At that time, Mr. Price still doubted Petitioner's credibility and resented that Petitioner had not initiated an earlier meeting to show him her receipts. The discussion between Petitioner and Mr. Price became very heated on this occasion, and each screamed at the other. At some point in the conversation, Mr. Price said, "You are doing just fine for a single woman working full-time with two children to raise." Petitioner's perception of this comment was that it was derogatory or discriminatory of her as a working woman. Mr. Price's perception was that the comment was either conciliatory or innocuous. At the August 24 meeting, Petitioner also presented extenuating circumstances why she had not finalized arrangements with the remaining two businesses. Within a few days, she submitted proof for the remaining two businesses. This late compliance by Petitioner substantially met the terms of Mr. Price's prior requirements, and he accepted Petitioner's slightly late compliance as fulfilling her obligations at that point. Although it was not specifically put into words by Mr. Price, it was intended by him that any failure on Petitioner's part to complete her restitution schedules would result in her termination. He did not specifically request her to bring receipts for each payment she made but he expected her to make a fair attempt at restitution and be able to prove it. Mr. Price later asked Mr. Stephens to get further receipts from Petitioner. It is undisputed that Mr. Stephens asked Petitioner if she had her receipts. Apparently a further misunderstanding arose between Petitioner and Mr. Price as to whether Mr. Price was going to pick up the receipts from her in the coal yard or whether he was requiring Petitioner to bring them to him in his centralized office. This misunderstanding was occasioned by the principals relaying their positions through the conduit of Mr. Stephens. Whether Mr. Stephens intended to picture Petitioner in a bad light for Mr. Price or whether it was Petitioner's mere lack of initiative in voluntarily taking receipts to Mr. Price which fueled Mr. Price's perception that Petitioner was uncooperative and was avoiding him is not entirely clear from this record, but, in fact, Petitioner did not bring any receipts to Mr. Price when J. D. Stephens merely asked her if she had them. Mr. Price felt her behavior confirmed his belief that Petitioner was not credible and that she also was resisting his authority. FPC received a telephone call from Don's Pharmacy on September 21 regarding Petitioner's failure to make her payment on September 14 pursuant to the agreed-upon payment schedule. Subsequent to August 24, Mr. Price also received complaints that Petitioner was not paying other businesses as she had agreed to do. Mr. Price then contacted other businesses with whom Petitioner had made payment arrangements and was told that she had not made any payments since the first one. Most businesses had been paid something on September 15. Mr. Price regarded these telephone conversations, whether initiated by the businesses or by himself, as "complaints" under the terms of his last understanding with Petitioner and as coming from businesses that were "more or less clients of FPC." (TR 153-156) After receiving this hearsay information, Mr. Price formed the conclusion that Petitioner had shown him receipts or had had creditors telephone him to indicate their acquiescence in a repayment schedule but that thereafter she simply did not faithfully make the scheduled payments. Prior to her termination, Petitioner never gave Mr. Price a repayment schedule for every business she owed, and he never knew for sure what those repayment schedules might be. No exhibit in evidence discloses what the payment schedules really were. No creditor testified to any due date for Petitioner's payments under their restitution schedule. In September and October 1988, Mr. Price and other managers simply relied on the hearsay statements of business people in the community whom they contacted or who contacted them. Some of their information could have been inaccurate or could have related to accounts that did not fit Mr. Price's final August 23-24 definition of "complaints." However, Petitioner did not testify and did not otherwise refute any of Mr. Price's expressed motivations for her termination, and the evidence is insufficient to establish that she had actually timely met all her payments to all of the businesses which had been contemplated by Mr. Price's final definition of "complaints." It is also clear that some of FPC's managers' time was still being taken up with some complaints from the community about Petitioner. Mr. Price and Danny Douglas, Assistant Site Support Manager, determined to their satisfaction that Petitioner was not complying with her payment schedules and that further counselling sessions or ultimatums from FPC's management to Petitioner would be useless. Likewise, they concluded that assigning Petitioner a suspension without pay would not help her pay her creditors or resolve the problem of complaints to FPC management about her bad checks or relieve the impression she was creating in the business community. Accordingly, with the concurrence of Ed Carnahan, Petitioner was terminated from her employment with FPC on October 13, 1988 for violating company policy, which requires all employees to handle their financial affairs in a manner which does not reflect discredit upon themselves and the company. Sometime between September 20, 1988 and her discharge on October 13, 1988, Petitioner was interviewed by FPC Human Resources Representative Dotty Wertz. Ms. Wertz interviewed Petitioner and approximately eight or nine other female employees as part of an internal company equal employment opportunity (EEO) investigation into a sexual harassment complaint filed by a female employee, Talesa Lloyd, against her supervisor, Jimmy Hitson. Ms. Wertz interviewed Petitioner at the request of Talesa Lloyd. Petitioner was formerly a subordinate of Mr. Hitson, but did not work for him in September or October of 1988. Four or five of the eight or nine female employees interviewed by Dotty Wertz made negative comments about Mr. Hitson. Petitioner was one of those who made such negative comments. FPC ultimately took disciplinary action against Mr. Hitson. The nature of FPC's internal discipline against Mr. Hitson is not in evidence, but apparently it was something short of termination. Talesa Lloyd had been a temporary worker at FPC when she lodged her sexual harassment claim, and she was invited back to work by FPC despite her claim. However, Mrs. Lloyd told FPC that she chose not to go back to work until she heard the outcome of her claim. That information was never reported to her, and she testified at formal hearing herein that she considered the outcome of her claim to be unfavorable to her and the internal complaint procedure in general to be unsatisfactory because no one had ever revealed the outcome of her claim to her, because Ms. Wertz refused to show her Ms. Wertz' report, and because Ms. Wertz told her that Ms. Wertz had been required by the company to rewrite her report. After her interviews, Ms. Wertz disclosed the results of her investigation to management, but did not orally identify to John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens those female employees she had interviewed or what information each individual had provided to her. Ms. Wertz also did not discuss the contents of any of her interviews with John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens, but Mr. Price admitted that he knew before he fired Petitioner that Ms. Wertz had interviewed Petitioner. Mr. Price denied knowing what Petitioner had said to Ms. Wertz. Given the physical layout of the employer's plant and the way in which Ms. Wertz made contact with the Petitioner, it may be reasonably inferred that one or more of her other supervisors also knew that Petitioner had been interviewed by Ms. Wertz and for what reason and further knew that several interviewees had commented unfavorably on Mr. Hitson. Ms. Wertz testified that Mr. Hitson himself could have seen her report and figured out who said what about him, but since Ms. Wertz' report did not attribute comments by name of interviewee, probably only Mr. Hitson or Ms. Wertz could have been sure who said what from reading the report. Mr. Price denied reading the report. There is no evidence that any of Petitioner's other supervisors read the report. Therefore, it is pure speculation that any affected manager knew, prior to her termination, that the Petitioner's comments about Mr. Hitson had been unfavorable. Todd Lemieux is employed by FPC as an assistant fuel handler (as was Petitioner) at its Crystal River site and has held that position approximately five years. In June 1988, Mr. Lemieux came to Mr. Price and reported that he had been arrested for driving under the influence of alcohol (DUI) and would have to serve some time in jail. At that time, Mr. Lemieux' work performance was excellent; he had never missed a day from work or taken any time off, and he had never been the subject of any FPC disciplinary action. Since this was the first community offense made known to FPC, Lemieux was allowed to use all of his accrued vacation and holiday time and a two-week job suspension without pay to serve his jail sentence. Lemieux was not terminated because he had an excellent work record, because he took the initiative of approaching his supervisor to report the violation, and because it was his first disciplinary offense with the company. However, in Lemieux' case, FPC's progressive discipline system of talk, counselling, oral reprimand, and written reprimand was not used, and Lemieux was given a written reprimand letter informing him that any further incidents of that nature would result in termination. Petitioner attempted to show that FPC had accommodated Mr. Lemieux despite a driver's license suspension which affected his work and two prior DUI convictions. Ed Carnahan testified that although he knew about Mr. Lemieux' two prior DUI charges as of the date of formal hearing, he did not know about them when Mr. Lemieux was disciplined in 1988. John Price was under the impression Mr. Lemieux received a permit to drive for employment purposes during his license suspension. John Argernon was employed by FPC as a fuel handler at its Crystal River site. Mr. Argernon was counselled by Mr. Price about his off duty alcohol abuse because Mr. Argernon was frequently tardy arriving at work and because he often used sick leave due to his drinking problem. Mr. Argernon subsequently participated in the FPC Employee Help Program for alcoholism, which FPC offers only one time to all employees at company expense while that employee draws full pay. Mr. Argernon quit the FPC Help Program before graduation, and thereafter, when FPC discovered further evidence of Argernon's alcohol abuse, he was terminated. Several managers, including John Price, had heard gossip that Petitioner was "at Charter" (a rehabilitation facility) during part of the spring of 1988 when the complaints concerning her bad checks reached crisis proportions, but they regarded that situation as confidential and did not probe behind the gossip. No evidence established that Petitioner specifically requested and was denied admission to the FPC Help Program for stress or bad check writing. Mr. Carnahan counselled with Mr. Argernon regarding spouse abuse after reading in the newspaper that Argernon's wife had brought such charges against him but did not pursue the issue since Mr. Carnahan was later informed either by Mr. Argernon or by another supervisor that the spouse abuse charges against Mr. Argernon had been dropped. Mr. Carnahan admittedly did not personally follow up on the matter to verify Mr. Argernon's truth and veracity or lack thereof on the subject of spouse abuse. Mr. Price did not discipline Mr. Argernon for spouse abuse because at the time he did not have any evidence that Argernon was guilty of spouse abuse. At the time Mr. Price recommended Petitioner's termination, he had been warned by Petitioner about intoxicated employees (see Finding of Fact 34) but he had no specific knowledge that Fred Fluchel, a white male fuel handler, had violated any company policy. Mr. Price first learned of a possible rule violation by Mr. Fluchel when Petitioner alleged in her initial charges, dated November 14, 1988, that on one occasion, Mr. Fluchel had come to work drunk and had driven his own pickup truck, containing two underage passengers, into a coal pile on the plant site. At that time, Mr. Price had questioned J. D. Stephens about Petitioner's allegation and Mr. Stephens had told Mr. Price that he was not aware that Mr. Fluchel had violated company policy as alleged. Mr. Price thereafter relied on Mr. Stephens' representation without further investigation. However, two days prior to the formal hearing herein, Mr. Price determined, contrary to Mr. Stephens' prior representations, that Mr. Fluchel had, indeed, violated company policy in such a drunken truck-driving incident on the job site, and Mr. Price testified at formal hearing that appropriate disciplinary action will now be taken against Mr. Fluchel. Such disciplinary action against Mr. Fluchel had not been taken by FPC as of the date of formal hearing herein. Messrs. Lemieux, Argernon, and Fluchel constitute employees "substantially similar" to Petitioner. Jim DeNicola, a white male, is employed as a Senior Maintenance Supervisor at FPC's Crystal River facility. He is not in a union bargaining unit like Petitioner. Also, his job description is supervisory and dissimilar in substance and authority to Petitioner's, but since FPC's Human Resource Manual applied to him as it did to all other FPC employees, including Petitioner, he may be considered an employee who is "substantially similar" to Petitioner for purposes of this proceeding. In 1985, before Petitioner was promoted to assistant fuel handler, Mr. DeNicola borrowed some furniture from FPC for his personal use. In so doing, he required at least two female employees, Petitioner and Lynne Graves-Donaldson, to assist in moving the furniture from the FPC plant site to his home. Both Mrs. Graves-Donaldson, who testified, and Petitioner, who did not testify, perceived that Mr. DeNicola's actions were stealing at worst, and at best, were done without permission of appropriate supervisors. Mrs. Graves-Donaldson expressed no concerns that she was asked to do heavy labor or that moving the furniture amounted to FPC employees doing Mr. DeNicola's personal business on company time. Mr. DeNicola returned the furniture to the FPC site after he no longer needed it. Mr. DeNicola was not disciplined by FPC for borrowing the furniture. Although some of Mr. DeNicola's middle management peers and some superiors apparently "looked the other way" over the furniture borrowing episode because Mr. DeNicola was going through a divorce, and although others did not know that he was borrowing the furniture at all, the evidence as a whole also does not reveal that FPC has any specific policy on such a subject or that the incident got any publicity in the community or had any effect on community perception of FPC.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a final order dismissing Petitioner's Petition for Relief and denying the relief sought thereby. DONE and ENTERED this 20th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 20th day of June, 1991.
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
The Issue Whether Respondent should be subject to demotion for directing staff to violate testing protocols related to the administration of the February 28, 2012, FCAT Writes test (FCAT test); for subsequently failing to report violations that were known to Respondent at the time of the administration of the FCAT test; and for making inappropriate comments to staff regarding the investigation of the reported violations, as alleged in Petitioner?s January 3, 2013, Notice of Discipline and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent, Sharon Sanders, was the principal at Windy Hill, a Duval County public school. She has been in the field of education for approximately 35 years, and has been with the Duval County public school system for 13 or 14 years. Ms. Sanders had been the principal at Windy Hill for four-and-a-half years prior to her demotion, and previously served as the principal at Holiday Hill Elementary School for four years, with an intervening stint of a year or so as the school district?s executive director of language arts. Since the demotion that forms the basis for this proceeding, Ms. Sanders has been the assistant principal at Landmark Middle School. In her 35 years of service as an educator prior to the incidents that are the subject of this proceeding, Ms. Sanders had not been subject to any disciplinary action. On March 6, 2012, the Duval County school district launched the investigation that resulted in the January 3, 2013, issuance of the Notice of Discipline. The investigators assigned by the school district were Mr. Thomas Scott, the district assessment coordinator, and Ms. Jessica Altman, a school district investigator. General FCAT Testing Duties and Responsibilities The Florida Department of Education issued a 2011-2012 Writing Test Administration Manual (DOE Manual) to govern and direct the process of administering the FCAT test. In order to ensure that the appropriate personnel were familiar with its contents, the DOE Manual provided that “[e]ven experienced district and school assessment coordinators and test administrators are responsible for reading and becoming familiar with all information in this manual.” Ms. Sanders was not a district or school assessment coordinator, or a test administrator. The DOE Manual establishes duties and responsibilities to be performed by the district assessment coordinator, school assessment coordinators, test administrators, and proctors for ensuring that standards for testing facilities, accommodations, pre-test and post-test procedures, and test administration are met. Other than general admonitions against violating test security applicable to anyone having exposure to the test or the process of its administration, the DOE Manual imposes no duties or responsibilities regarding FCAT testing on school administrators unless they hold one of the listed positions. Ms. Sanders has never participated in FCAT testing as a member of the school administration, properly leaving duties and responsibilities for testing to the assigned school assessment coordinator and test administrators. During FCAT testing, Ms. Sanders would generally go to her office and “let the testing coordinator and the teachers handle testing because they're the ones with the training and they're the ones with the expectation that they should handle it.” Ms. Sanders? position regarding her role in the FCAT-testing process is consistent with the DOE Manual. Windy Hill FCAT Assessment Coordinator At all times pertinent to this proceeding, Kasey Williams was the assigned FCAT school assessment coordinator for Windy Hill, having held that assignment for two years prior to the February 28, 2012, FCAT Writes exam. She had assisted as co-coordinator for a year previous to her assignment. Based on Ms. Williams? experience and training, Ms. Sanders had a justifiable expectation that she would be capable of performing the responsibilities assigned to her as set forth in the DOE Manual. As a result of personal issues unrelated to her employment, Ms. Williams routinely arrived late for work. Although the Windy Hill school workday started at 7:40 a.m., Ms. Williams? normal arrival time was between 8:00 and 8:10. Ms. Sanders was willing to accommodate Ms. Williams, allowing her to work a flexible schedule “as long as she was doing her job and making sure everything was taken care of and she was willing to stay late and make sure everything was handled.” Whether she stayed late is difficult to determine, since Ms. Williams rarely signed in and out of work, a task expected of and performed by other teachers and staff. In the weeks leading up to the administration of the FCAT test, Ms. Williams? personal issues had gotten to the point that she was observed crying on numerous occasions, walking out of her office on the telephone crying, and snapping at teachers and administrators. She was planning to move out of her home on the weekend following the FCAT test. Ms. Williams? job performance was affected by her personal situation. Pre-FCAT Staff Meeting Several weeks before the FCAT test, a meeting was held in Ms. Sanders? office to discuss preparations for the FCAT test. Attendees, in addition to Ms. Sanders, were Ms. Rebecca Nelson, Mr. Chris Bacca, and Ms. Branaii Kennell. Ms. Williams, as the school assessment coordinator, had been advised of the meeting and was expected to attend. As the participants were assembling, Ms. Williams “stuck her head in” and advised that she would not be attending the meeting, but rather had an unspecified meeting “off-campus.” The purpose of the off-campus meeting was not explained. The greater weight of the evidence demonstrates that Ms. Williams knew of the pre-FCAT meeting, but chose to be elsewhere. When Ms. Williams made her brief appearance at the meeting, Ms. Sanders, consistent with her practice when teachers miss faculty or planning meetings, advised her to “make sure you get with. . . one of us and find out what you need to know.” Ms. Kennell knew that Ms. Williams was not at the meeting, but did not know why she was not there. In that regard, Ms. Sanders was not certain that Ms. Kennell had arrived for the meeting when Ms. Williams made her appearance. Items for discussion at the pre-FCAT staff meeting included where to do testing, assignment of teachers as administrators and proctors, accommodations for ESE students, the need for seating charts -- in general the “nitty-gritty things.” The issue of student seating was not discussed. Harris Hall, a large, carpeted multipurpose room with an elevated stage, was suggested as the testing location because students had been going to Harris Hall since the beginning of the year for collaborative writing labs and writer?s workshops. A consensus among the attendees developed that Harris Hall would be the setting that the children would be the most comfortable in, and would be an appropriate location for a preparatory Writer?s Camp and the FCAT testing. The plan was to have basic testing conducted on the floor level of Harris Hall, and to have ESE students test on the smaller stage level, with large flat-screen televisions and a white board used to visually separate the areas. The ESE teacher, Ms. Miller, was to be consulted to ensure that the arrangement was suitable to meet the accommodations required by her students? Individualized Education Programs (IEPs). If Ms. Miller decided that Harris Hall was not suitable to accommodate her students? IEPs, a different location would be provided. Ms. Williams did not follow up with Ms. Nelson about the meeting, and there was no evidence that she followed up with any other attendee. Ms. Williams? testimony that, by holding the pre-FCAT meeting as previously scheduled, “[m]y administrator chose to pretty much coordinate the FCAT without me” is not supported by the evidence, and is rejected. Based almost entirely on Ms. Williams? self-serving statements, Mr. Scott determined, and made part of his report, that Ms. Williams was “excluded” from the meeting. Mr. Scott?s investigatory finding is contrary to the greater weight of the evidence. Harris Hall Preparation As the FCAT test approached, and in order to ensure that Harris Hall could accommodate students for the Writer?s Camp and the FCAT test, Ms. Sanders prepared a rough sketch showing tables and chairs on the floor level and the stage of Harris Hall. Ms. Sanders gave the sketch, which included the dates on which the tables and chairs were needed, to the school custodian. The sketch was not intended to be a seating chart, but was for the purpose of making sure that tables and chairs were brought to Harris Hall so that the teachers and test administrators involved in the Writer?s Camp and the FCAT test would not have to get them on their own. It was then the responsibility of the test administrators to arrange them, and to make the final decisions as to where the children were to sit. Writer?s Camp A “Writer?s Camp” designed to familiarize students with, and prepare them for, the FCAT test has been conducted at Windy Hill for at least five years. A writer?s camp was conducted at Holiday Hill Elementary School during the period when Ms. Sanders was the principal and Ms. Nelson was the instructional coach, and was implemented at Windy Hill when Ms. Sanders and Ms. Nelson were reassigned to Windy Hill. The purpose of Writer?s Camp is to recognize the work of the students over the course of the year, and to build up their confidence through guest speakers and activities. The Windy Hill Writer?s Camp has become a model that is used at other schools in the district. Ms. Sanders had been asked by Sylvia Johnson, a district school administrator, to use her program as a model for other schools. In order to implement that request, Ms. Nelson has met with principals and fourth- grade teachers at elementary schools in the district to instruct them on developing writer?s camps at their schools. The Windy Hill Writer?s Camp was generally the same as camps operated in at least six other elementary schools in the district. Writer?s Camp was to be held on February 21-24 and 27, 2013 in Harris Hall. Ms. Sanders authorized teachers who had been designated as test administrators for the FCAT test to develop the expectations for the camp, identify the speakers, develop the lessons, and plan how the students were to be broken into small groups. The agenda and schedule were developed by Ms. Nelson, Ms. Kennell, Mr. Bacca, and Ms. Hurst working as a team. Ms. Sanders did not participate in the planning. Rather, she provided the teachers and Ms. Hurst with the opportunity to work together. Consistent with the written schedule developed by the planning group, Writer?s Camp was held for several hours per day for five days preceding the FCAT test, commencing on Tuesday, February 21, 2012. Writer?s Camp did not take up the entirety of the school day, though it did focus on writing for more than the normal period. For the five days on which Writer?s Camp was held, the written schedule allotted a total of 10 hours for Writer?s Camp. The remaining 18.5 hours of the scheduled portion of the school days were to be devoted to math and science instruction, recess, lunch, “resource/common planning,” and “share time.” The written schedule generally reflected what was done on those days. During the period that Writer?s Camp was ongoing, Ms. Payne found sufficient time to teach math and science in her classroom. Ms. Kennell testified that she did not teach other subjects except to go over homework and worksheets during the days on which Writer?s Camp was held, but admitted that it is up to the teacher?s discretion as to how much time they spend on various subjects in their classroom. Ms. Boney testified that she could not teach math to her fourth-grade students because of their participation in Writer?s Camp. She acknowledged that she had up to two hours per day for subjects other than Writer?s Camp, which time included lunch, recess, and bathroom breaks. The greater weight of the competent, substantial, and credible evidence in this case indicates that there was sufficient time during the day for instruction in math and reading to take place, though not to the extent that it might have been taught without Writer?s Camp. The fact that Ms. Kennell and Ms. Boney felt that they were unable to teach other subjects appears to be a function of their own classroom organization, rather than a lack of time. After the FCAT Writes test, most teachers temporarily increased their focus on other subjects so as to equalize the time spent on each subject. A district math coach came to Windy Hill for five Fridays after the FCAT test was done for a kind of informal math camp. Ms. Payne chose to take advantage of the math coach and as a result believed that her students did not lose out on any math instruction as a result of Writer?s Camp. Ms. Boney did not opt to use the services of the district math coach for reasons that were not well explained, although Ms. Kennell and Ms. Boney had their students do “double block math” the week following Writer?s Camp so that they did not miss anything. Since the specifics of classroom instruction are up to each teacher?s discretion, the manner by which Ms. Kennell and Ms. Boney chose to make up the class time was by no means improper. There is nothing inappropriate in concentrating on writing leading up to the FCAT Writes test, as long as there is a greater emphasis on the other subjects after the FCAT Writes test is complete. In that regard, Mr. Scott acknowledged that a school may conduct a writer?s camp at the temporary expense of instruction in other subjects, as long as the time for those other subjects is balanced out with greater instruction at a later time.1/ Even though he acknowledged that a balancing of instructional time was appropriate, Mr. Scott did not discuss the Writer?s Camp with Mr. Bacca, Ms. Payne, or Ms. Nelson, did not receive or review the written schedule and curriculum, and did not ask the fourth-grade teachers whether time in Writer?s Camp had been subsequently balanced out with time devoted to other subjects. As justification for his failure to ask questions that would reasonably bear on whether the Writer?s Camp violated section 1008.22(4), Mr. Scott testified that “writing camp had been done in the past and it was not precedent . . . for there to be a math camp or for there to be a reading camp.” Mr. Scott?s assumption was without any support in the record of his investigation or of this proceeding. Despite his failure to review the written schedule or to conduct meaningful interviews regarding the issue, Mr. Scott testified as to his understanding that students “spent five days in Harris Hall preparing for the FCAT Writes by doing practice prompts and that type of thing,” and that “from what I gathered,” Writer?s Camp was all day long. Mr. Scott?s understanding of the Writer?s Camp schedule is unsupported by competent, substantial, and credible evidence in the record. What is clear from the record of this proceeding is that Writer?s Camp did not take up the entire day on the days of its administration, and that the time spent on focusing on writing before the FCAT test was “balanced out” with greater instruction in other subjects the following week. The manner in which such balancing was accomplished was within the discretion of the classroom teachers, and was not the decision of Ms. Sanders or the school administration. The School Assessment Coordinator Engages Ms. Williams was an experienced school assessment coordinator. Ms. Sanders had no reason to doubt that Ms. Williams would fail to perform her duties as the school assessment coordinator as she had done in the past in a very reliable fashion. Having assigned responsibility for the FCAT test preparations to the person designated in the DOE Manual as having such responsibility, a person she reasonably believed to be a competent member of her staff, Ms. Sanders was not remiss in having confidence that Ms. Williams would perform her duties. Ms. Williams made no effort to engage in planning for the upcoming FCAT test until February 22, 2012, the day after Writer?s Camp started, and four school days before the FCAT test was to be administered. On that date, Ms. Williams sent an e-mail to Ms. Sanders in which she stated that “[t]his one snuck up on me.”2/ She then testified at the hearing that “the FCAT always snuck up on us.” The evidence demonstrates that remainder of the staff appeared to be fully engaged in their preparations for the FCAT test, including Writer?s Camp. The only person that the FCAT “snuck up on” was the person with the greatest assigned and expected responsibilities, Ms. Williams. Ms. Sanders responded to Ms. Williams? February 22, 2012, e-mail by suggesting that Ms. Nelson would help with the selection of proctors. Proctors were thereafter selected, and were in attendance during the administration of the FCAT test. Ms. Sanders also advised Ms. Williams that Ms. Turner would “send information” to the teachers and proctors about picking up the manual on Friday, and meeting on Monday afternoon for training. Ms. Turner had no specific recollection of sending information, but it would have been consistent with her normal practice of complying with Ms. Sanders? requests to have done so. Ms. Sanders responded and assisted Ms. Williams in a reasonable and appropriate manner. Her offer of modest assistance cannot reasonably be construed as an assumption of control over the duties of the school assessment coordinator. In the days following her February 22, 2012, e-mail, Ms. Williams did little to fulfill her duties as the school assessment coordinator. The only “preparation” performed by Ms. Williams involved her effort to locate partitions that she believed should have been placed at the testing tables to create visual barriers between students. As will be discussed in detail herein, Ms. Williams? belated effort to obtain partitions was rushed and disorganized. More to the point, there is little in the way of competent, substantial, and credible evidence that Ms. Sanders was told of Ms. Williams? efforts until minutes before the test was to begin. The DOE Manual requires that the school assessment coordinator train test administrators and proctors prior to the test. Such training is typically performed well in advance of the test. Ms. Williams determined that she could fulfill her obligation to train test administrators by providing them with copies of the DOE Manual on the afternoon before the FCAT test for them to review on their own. Ms. Williams asserted that she typed up “brief training notes” to hand out with the DOE Manual, though no other witness mentioned having received notes from Ms. Williams. With her distribution of the DOE Manuals, Ms. Williams “preparations” for the FCAT test were complete. February 28, 2012 - Testing Day On the day of FCAT testing, Ms. Williams showed up for work at approximately 8:10 a.m. Ms. Williams saw no problem with arriving late to work on testing day because, with regard to the necessary preparations, “usually most of it's done prior to the morning of testing.” To the extent that FCAT preparations were done, they were done in spite of her lack of preparation. Ms. Turner encountered Ms. Williams as Ms. Williams arrived for work. It appeared to Ms. Turner that Ms. Williams was having emotional problems as she was teary-eyed and visibly upset. Ms. Turner went with Ms. Williams to her office due to her concern for Ms. Williams? well-being. Ms. Turner spoke with Ms. Williams about her needing to move, her having ongoing family issues, and it having been a rough night for her. Ms. Turner knew that Ms. Williams had responsibilities for the administration of the test, and wanted to make sure that she was alright. Ms. Williams? account of the discussion differs from that of Ms. Turner. Ms. Williams testified that Ms. Turner “spent 40 minutes in my office berating me.” She further testified that Ms. Turner instructed her to pack her things and get ready to leave campus, a statement finding no support in the investigative report or otherwise in the record of this proceeding. The preponderance of the competent, substantial, and credible evidence adduced at the hearing fails to support a finding that Ms. Turner berated Ms. Williams on the morning of the FCAT test, that she interfered with Ms. Williams? duties as school assessment coordinator, or that she suggested to Ms. Williams that she needed to leave the school campus while the FCAT test was ongoing. Ms. Williams estimated that her discussion with Ms. Turner lasted for approximately 40 minutes. Accepting Ms. Williams? time estimate, she began to distribute FCAT test materials to the test administrators at approximately 8:50 a.m. Each of the four test administrators received his or her tests and materials in turn, counted them, and signed for them. The process took, in Ms. Williams? estimation, a total of ten minutes. According to the security logs, Ms. Kennell entered Harris Hall at 8:50 a.m., Mr. Bacca and Ms. Miller at 9:00 a.m., and Ms. Nelson at 9:20 a.m. By the time Ms. Williams got to Harris Hall, the students were assembled “in the front corner with Mr. Bacca reading a book or talking to them.” Since Mr. Bacca entered Harris Hall with his materials at 9:00 a.m., the time necessary for him to put his things down, assemble a group of fourth-grade students, and start to read to them, suggests that Ms. Williams showed up well after 9:00 a.m. for the 9:30 a.m. test. The circumstances regarding Ms. Williams? appearance in Harris Hall, and the testing conditions that form the grounds for the School Board?s Notice of Discipline, will be discussed in detail herein. Ms. Williams returned to her office. Ms. Sanders then delivered her pep talk to the students. The talk was brief, whereupon Ms. Sanders went to her office. Ms. Sanders had no further involvement with the testing. At the conclusion of the pep talk, Ms. Nelson took about 17 high-performing students to Room 21 for testing because that was where they had received the majority of their writing instruction during the year. The remaining students were individually seated by the test administrators. The basic students were seated at tables at the floor level of Harris Hall, and the ESE Students were seated at tables on the stage. Ms. Miller, the ESE teacher, and the person most qualified and knowledgeable about her students? IEPs and accommodations, had no issue with her students being tested on the stage. There was no evidence that the accommodations for the ESE students included anything other than additional time for testing. Mr. Scott was critical of the arrangement, testifying that if a prompt had to be read to an ESE student, other students probably would have heard it. However, Mr. Scott did not review any of the IEPs to determine what accommodations were provided, did not know whether any verbal prompts were necessary or required, and otherwise had no evidence to suggest that the testing of the ESE students had the potential to, or did, cause a disruption to any student being tested in Harris Hall. After the students were seated, Mr. Bacca read the testing scripts to the students and testing commenced. Mr. Bacca gave the students the required warning with ten minutes remaining, and the basic testing ended as scheduled without incident. At the conclusion of basic testing, and after a short break, Ms. Miller?s ESE students resumed testing in Room 21, which had been vacated by Ms. Nelson?s students. There, they were accommodated with additional time to complete their tests. Although Mr. Scott found it unusual for students to move during the break, there was no allegation or proof that allowing the ESE students to complete their testing in Room 21 was improper or a violation of FCAT testing protocols. In any event, there is no evidence that Ms. Sanders was aware of the move. Ms. Kennell, Mr. Bacca, and Ms. Nelson took their completed test materials, which included the tests themselves, student work papers, scripts, security logs, and other documents to Ms. Williams as required. Although the test administrators were to have turned in their seating charts to Ms. Williams, they did not. Ms. Williams did not ask the test administrators about their seating charts. Further issues regarding the seating charts that form a basis for the School Board?s Notice of Discipline, will be discussed in detail herein. After basic testing was complete, Ms. Williams left the school campus. Further issues regarding Ms. Williams? departure that form a basis for the School Board?s Notice of Discipline, will be discussed in detail herein. After Ms. Williams left campus, Ms. Miller completed the FCAT testing of her ESE students. She gave the testing materials to Ms. Turner, who placed them in Ms. Williams? locked and secured office. The Investigation After the conclusion of the FCAT test, a report was made to the school district that Mr. Bacca had received information regarding the testing prompt, and that he had shared that information with other teachers. The report resulted in the initiation of an investigation to determine the merits of the complaint. The investigation was assigned to Mr. Scott and Ms. Altman. At approximately 9:30 on the morning of March 6, 2012, Mr. Scott sent an e-mail to Ms. Williams advising her that he would be coming to the school later that morning to start an investigation of the complaint. Ms. Williams was with Ms. Kennell when the e-mail was received. Ms. Kennell told Ms. Williams that she believed the investigation was related to Mr. Bacca and the testing prompt. Mr. Scott and Ms. Atwater arrived at Windy Hill at approximately 10:30 a.m. and went to see Ms. Sanders. Mr. Scott advised Ms. Sanders of the nature of his investigation, and requested Ms. Sanders? cooperation in making teachers available for interviews. Ms. Sanders agreed to do so. Ms. Sanders expressed her support for her teachers, and advised Mr. Scott of her belief that the fourth-grade teachers at Windy Hill would not cheat on the FCAT test. During their initial discussion, Ms. Sanders advised Mr. Scott of her concerns with Ms. Williams, and described some of her recent emotional difficulties. Ms. Sanders made inquiry as to the process for changing the school?s assessment coordinator before the next round of tests. Mr. Scott provided the information to Ms. Sanders, which she subsequently implemented, assigning Ellen Rubens to be the assessment coordinator for the next round of FCAT testing. Ms. Sanders walked with Mr. Scott through the school, and showed him the testing rooms. During their tour, Ms. Sanders engaged in a very general discussion of Writer?s Camp and of the reasons that Harris Hall was selected for testing. She showed Mr. Scott the student papers that remained on the walls of Harris Hall. At the time of the tour, Ms. Sanders did not know whether the papers had been covered at time of test, and Mr. Scott asked no questions about them. Mr. Scott and Ms. Atwater interviewed a number of students, along with Ms. Williams, Mr. Bacca, Ms. Payne, Ms. Kennell, and Ms. Boney. Brief questionnaires used by Mr. Scott for his teacher interviews were preserved. During the interviews, Ms. Nelson, who was a test administrator during the FCAT test and a participant in the pre- FCAT staff meeting, stuck her head into the room and asked Mr. Scott and Ms. Altman if they needed to see her. They indicated that they did not. Ms. Nelson was never interviewed. On March 8, 2012, Mr. Scott and Ms. Altman returned to Windy Hill to continue their interviews with the five teachers previously interviewed. The thrust of the investigation remained the allegation that Mr. Bacca had learned of the prompt prior to the FCAT test. Ms. Sanders allowed Mr. Scott to use her office to continue the interviews. After Ms. Kennell appeared for her interview, Ms. Sanders received a call from counsel for the Duval Teachers Union, David Hertz, who asked her to advise the teachers and the investigators that he was in route to the school, and to ask them to postpone further discussions until his arrival. Ms. Sanders did not know who called Mr. Hertz. Ms. Sanders complied with Mr. Hertz?s request, and acted appropriately in doing so. Mr. Scott believed that Ms. Sanders? act of advising the teachers of Mr. Hertz?s request was somehow improper, commenting that “[i]t?s very unusual for a principal to tell us that the Union lawyer is on their way.” He further testified that Ms. Sanders “inhibit[ed]” his investigation and “cause[d] a delay in some of the information happening quickly.” While Ms. Scott may have preferred to conduct his investigation free from the interference of the teachers? legal counsel, there is no evidence that Ms. Sanders had any intent or reason to hinder the investigation when she forwarded Mr. Hertz?s message, or that by so doing she inhibited the investigation. Rather, her actions were reasonable, appropriate, and in keeping with the legal rights of the teachers. During one of the two days that she was on campus, Ms. Altman advised Ms. Sanders to speak with her staff, instruct them not to discuss the investigation, and advise them that progressive discipline could result if they discussed the investigation amongst themselves. Further issues regarding Ms. Sanders? delivery of Ms. Altman?s message will be discussed in detail herein. On or about March 12, 2012, Mr. Hertz provided the investigators with written statements from Ms. Kennell, Mr. Bacca, and Ms. Boney. Follow-up interviews with those three teachers were conducted on March 13, 2012. Approximately two weeks after the test, and after Mr. Scott and Ms. Altman had completed their interviews, Ms. Williams discovered the Writer?s Camp papers and decorations that remained on the walls of Harris Hall. Ms. Williams photographed the papers, and sent the photographs to Ms. Altman. No cheating regarding the testing prompt was uncovered in the investigation. The FCAT Writes test scores were validated by DOE, and the writing scores were released and counted as part of Windy Hill?s school grade announced in June or July of 2012. At some indeterminate point, the investigation turned from one regarding the testing prompt to one directed at Ms. Sanders for alleged violations of testing conditions. After the focus of the investigation turned to Ms. Sanders, neither Mr. Scott nor Ms. Altman saw fit to conduct further interviews of Ms. Sanders or any other member of the Windy Hill staff regarding specific testing improprieties, including those for which allegations of disciplinary conduct against Ms. Sanders were sustained. The bulk of the information relied upon by the investigators to sustain allegations against Ms. Sanders came from Ms. Williams. Mr. Scott had previously worked with Ms. Williams, and believed her to be “a reliable test coordinator.” Mr. Scott glossed over the possible effect that Ms. Williams? personal issues may have had on the performance of her duties as the school assessment coordinator, testifying that in her interviews “[s]he was the same Kasey I had known the year before.” When asked about his unquestioning acceptance of Ms. Williams? statements, Mr. Scott testified as follows: Q: Because [Ms. Williams] was somebody who's been in your classes, you've worked with her, you've trained her, right? And you just assumed that she was telling you the truth, didn't you? I had no other reason to believe she was not. As will be discussed herein, Ms. Williams? had a clear self-interest in covering for her inadequacies. At the very least she had her attention directed to other concerns as the FCAT test approached, failed to make any meaningful preparations for the FCAT test, neglected her duty to train the test administrators and proctors, and knowingly falsified seating charts that she submitted to the Department of Education. Mr. Scott went to considerable effort to minimize and dismiss the failings of Ms. Williams. After having admitted that Ms. Williams should have called his office with her purported concerns, as was standard procedure for all school assessment coordinators, Mr. Scott stated that “I don't think she felt comfortable that she could do that. I had to give her a comfort level to do that without retribution.” He further testified that Ms. Williams “was a person who did not feel comfortable calling my office because of retribution, as indicated by all the teachers I spoke to, other than Mr. Bacca maybe.” Finally, he testified that “I felt that one of the reasons Kasey did not report and that they didn't, they feel there's retribution. They were very, very fearful that day in that room giving me testimony. There was -- fearful of retribution, what might happen in terms of their jobs.” There is not a scintilla of competent, substantial, and credible evidence that Ms. Sanders expressed, implied, or intimated that there would be retaliation for anything associated with the FCAT test before, during, or after its administration. Furthermore, there is no evidence of retaliatory action being meted out for anything related to the FCAT test or subsequent investigation, despite the almost ten months that passed between the commencement of the investigation and the date of the disciplinary notice. The suggestion that Ms. Williams? description of events is entitled to any degree of credibility due to her professed fears of “retaliation,” is rejected. The investigators? unquestioning acceptance of Ms. Williams? account of events -- particularly in light of their failure to interview material witnesses and to review “best-evidence” materials, including the Writer?s Camp schedule and the recording of the March 7, 2012, faculty staff meeting -- causes the undersigned to seriously question the completeness and accuracy of the conclusions drawn from the investigation. In October 2012, more than seven months after the commencement of the investigation, Ms. Altman typed her first draft report. All notes of the student and teacher interviews that formed the basis of the report were then destroyed by Ms. Altman. On or about October 20, 2012, Ms. Altman sent her first draft report to the chief human resource officer for the school district, Ms. Young, for her review and comments. Ms. Young provided written comments and returned the edited draft document to Ms. Altman. The original draft report and Ms. Young?s comments were then destroyed by Ms. Altman. The only version of the investigative report entered into evidence is the version created after the School Board voted to sustain the demotion of Ms. Sanders. Copies of the investigative report created prior to the time that the School Board voted to demote Ms. Sanders were destroyed. Upon finalization of the investigative report, Ms. Young prepared and sent a memorandum to Nikolai Vitti, the Superintendant of Schools, that provided the results of the investigation, outlined the investigators? findings, and sustained the allegations against Ms. Sanders, concluding that the evidence “proves the allegation(s) to be true. The Superintendant of Schools had the disciplinary matter referred to the School Board with a recommendation for Ms. Sanders? demotion from the position of principal, and reassignment to the position of assistant principal. The Charges On January 3, 2013, Ms. Sanders was provided with notice of her recommended demotion when she was called to Ms. Young?s office and handed the Notice of Discipline. Prior to that time, Ms. Sanders assumed that the investigation into improprieties in the FCAT Writes test was closed, since the scores had been validated and released, and the school grade announced. She did not know that she was the target of an investigation, and had been provided with no opportunity to respond or to provide information regarding her role, or lack thereof, in any of the specific allegations. Ms. Sanders, through her counsel, requested an opportunity to respond to the allegations before the School Board took action at its January 7, 2013, meeting. On the day of the School Board meeting, the request was denied. Ms. Sanders was advised that she would have an opportunity to speak at the School Board meeting. During the School Board meeting, Ms. Sanders again asked for time to respond to the allegations before action was taken. Her request, along with similar requests made by between 20 and 30 attendees, was denied. The School Board approved the report, and voted to demote Ms. Sanders to the position of assistant principal. Ms. Sanders challenged the action of the School Board, and this proceeding ensued. The Notice of Discipline alleged that Ms. Sanders “directed staff to violate testing protocols, failed to report violations that were known to her at the time of the administration of the test, and made inappropriate comments to staff regarding the investigation of the reported infractions.” The specific testing protocols alleged to have been violated by Sanders, as reflected in Ms. Young?s memorandum sustaining the allegations, are identified and addressed as follows: 1008.22(4) - Writer?s Camp The Notice of Discipline alleged that Ms. Sanders violated section 1008.22(4) by “suspending a regular program of curricula for purposes of administering practice tests or engaging in other test-preparation activities for a statewide assessment.” Ms. Sanders was never interviewed about her involvement with the Writer?s Camp, how it was set up, or how many hours of the day it was held. The circumstances of the planning and conduct of the Writer?s Camp are set forth in detail above. The evidence demonstrates that the Writer?s Camp was developed and administered for the purpose of administering practice tests and engaging in test preparation activities that were determined by Windy Hill faculty and their education consultant to be appropriate to familiarize students with the organization, format, and directions for the FCAT test. The evidence demonstrates that the Windy Hill Writer?s Camp was accepted by the district office as a model for use in other schools, and was, in fact, implemented at other Duval County schools. The assumption made by Mr. Scott that Writer?s Camp was a day-long event that subsumed the regular curricula, was made without having reviewed the actual schedule and without having interviewed material witnesses, and is contrary to the greater weight of the evidence. The increased time that was devoted to allowable FCAT test preparation activities during the five-day Writer?s Camp was balanced out with greater instruction in math and other subjects over the following weeks, a practice recognized as appropriate by Mr. Scott. The School Board has failed to prove that the Writer?s Camp was contrary to the allowable scope of activities described in section 1008.22(4)(e) by a preponderance of the competent, substantial, and credible evidence in this proceeding. 1008.24(1) - Test Security The Notice of Discipline alleged that Ms. Sanders violated section 1008.24(1) by “knowingly and willfully” violating test security rules for the following specified reasons: Failure to follow security rules for distribution and return of secure test as directed, or failure to account for all secure test materials before, during and after testing. The facts underlying this count are those related to the allegation that Ms. Sanders did not allow Ms. Williams to monitor testing rooms, and that Ms. Sanders did not allow Ms. Williams to supervise make-up administrations, both of which were pled as violations of the DOE Manual. The specific findings that apply to this count are set forth in detail in the analysis of the corresponding DOE Manual violation counts, which are incorporated as to this count. In addition to the findings of fact incorporated in this analysis, the evidence demonstrates that FCAT test materials were distributed and accounted for in compliance with applicable standards before and during the FCAT test. The only potential irregularity in the return of the completed FCAT tests was that occasioned by Ms. Williams? decision to leave campus to attend to her personal affairs before ESE testing was complete. To ensure the integrity of Ms. Miller?s test materials in Ms. Williams? absence, Ms. Turner accepted those tests and locked them in Ms. Williams? office pending her return. The evidence demonstrates that Ms. Sanders did not know of Ms. Williams? departure from campus prior to the completion of testing on February 28, 2012, nor was she advised of Ms. Turner?s acceptance of Ms. Miller?s ESE class FCAT tests. In light of the findings of fact made regarding Ms. Williams? ability to monitor testing rooms and supervise make-up administrations, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow security rules for the distribution and return of the FCAT test and testing materials as directed, or that she “knowingly and willfully” failed to account for all FCAT tests and testing materials before, during, and after testing. Failure to follow test administration directions specified in the test administration manuals The Notice of Discipline alleged that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals. The DOE Manual provides that it is the responsibility of the test administrator to administer the FCAT test in accordance with the directions. The greater weight of the competent, substantial, and credible evidence demonstrates that the test administration directions, including scripts and prompts, were followed to the letter. The only potential breach was that of Ms. Kennell, who told the students that they should not forget their conclusions as the test was winding down. There is absolutely no evidence that Ms. Sanders was advised of that possible minor irregularity. There is no evidence in the record of this proceeding that Ms. Sanders failed to follow test administration directions specified in the test administration manuals. The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals. Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. By this count, the School Board has, essentially, thrown the kitchen sink at Ms. Sanders in a broad and general count with little specificity. Thus, the undersigned concludes that the only way this count can be addressed, consistent with accepted tenets of due process, is to limit the “acts prohibited in this section” to those pled and specifically identified elsewhere. In addressing this count, the undersigned incorporates the findings of fact as to each of the acts alleged in the Notice of Discipline. In light of the findings of fact made as to each of the acts alleged in the Notice of Discipline, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” participated in, directed, aided, counseled, assisted in, or encouraged any act alleged to have violated the provisions of section 1008.22 or section 1008.24, the DOE Manual, or the educators? Code of Ethics. Violations of the DOE Manual The Notice of Discipline alleged that Ms. Sanders failed to adhere to the following requirements of the DOE Manual: School Assessment Coordinator not able to monitor testing rooms: The Notice of Discipline alleged that Ms. Sanders caused Ms. Williams, the school assessment coordinator, to be unable to monitor the testing rooms in accordance with the DOE Manual. As set forth previously herein, Ms. Williams appeared in Harris Hall on the morning of February 28, 2012, well after 9:00 a.m. Students had already assembled, and Mr. Bacca was reading to them. Ms. Sanders had entered the room, was speaking with students, and was preparing to deliver her “pep talk.” When she entered Harris Hall, Ms. Williams was still visibly upset. She began to gather, count, and place and tape partitions onto the tables, which will be discussed in greater detail herein. The evidence supports Ms. Sanders impression that Ms. Williams “was stressed out and she was stressing teachers and students out.” In order to minimize the effect of Ms. Williams? hurried efforts, and to avoid “a big discussion about whether or not we were going to use those partitions in front of the students right before their test started,” Ms. Sanders recommended that Ms. Williams return to her office in order to start to normal testing procedures. Ms. Sanders? request that Ms. Williams return to her office was driven in part by the need to have the FCAT test started on time. During the FCAT test, all of the other children at the school are on “lockdown” to minimize movement around the school and potential distractions for the fourth- grade students being tested. Essentially, everyone stays in place until basic testing is finished. Therefore, it was important that the testing be started on time so as to be completed by lunchtime. In order to ensure that testing staff can quickly locate the assessment coordinator if needed, it has been the normal FCAT testing protocol at Windy Hill for the assessment coordinator to be located at a central location when the testing is in progress, typically in the assessment coordinator?s office. It had been determined during previous tests that the assessment coordinator should not be “roaming” about the school grounds. Thus, the instruction that Ms. Williams return to her office was consistent with the standard testing protocol at Windy Hill, and was not a new or unusual practice. Windy Hill staff members not engaged in test administration are stationed in or near the assessment coordinator?s office to act as “runners” at the direction of the assessment coordinator in the event of an emergency, which can range from a student getting sick to an unauthorized person walking into the testing area. However, there is nothing to prevent the assessment coordinator from personally handling an incident. The greater weight of the evidence demonstrates that, although Ms. Sanders advised Ms. Williams to return to her office to start the testing process, she did not direct Ms. Williams “to go to her office and stay there,” or tell Ms. Williams that she could not leave her office. To the extent Ms. Williams remained in her office during the basic testing, such was consistent with the normal testing protocol at Windy Hill. Mr. Scott?s conclusions that Ms. Williams “was constrained” from performing her duties as a school assessment coordinator, and his statement that “Ms. Sanders chose to take over that responsibility [of assessment coordinator] when she sent Ms. Williams to her office,” both of which were based predominantly on Ms. Williams? statements, are contrary to the greater weight of the evidence and are rejected. Basic testing was completed prior to 11:00 a.m. Mr. Bacca, Ms. Kennell, and Ms. Nelson returned their testing materials to Ms. Williams at that time. Ms. Miller moved her ESE students to Room 21 to complete their testing so that Harris Hall could be freed up for other uses. Therefore, Ms. Miller did not return the test materials for her students to Ms. Williams when basic testing was completed. After the return of the basic testing materials, but while Ms. Miller?s ESE student tests were still out, Ms. Williams went to the office of Jennifer Green, the school?s speech pathologist.3/ Ms. Green?s office is not in the same building as Ms. Williams? office. Ms. Williams admitted that she was emotionally upset as she sat in Ms. Green?s office, but attributed it to Ms. Turner?s interaction with her earlier that morning. She further testified that she had gone to Ms. Green?s office “to ask her to take care of some things that needed to be taken care of while I was forced off campus.” Having previously found that Ms. Williams was not forced off campus by Ms. Turner, Ms. Williams? testimony that she was emotionally upset as a result of anything to do with the FCAT test or her duties as the school assessment coordinator is not accepted. Ms. Turner received the information that Ms. Williams was in Ms. Green?s office, upset and crying, and having a conversation with Ms. Green. She reported that information to Ms. Sanders, who instructed Ms. Turner that “if she?s finished testing, that?s fine with me. Tell her she can go home and do what she needs to do.” Since it was later in the day, Ms. Sanders believed that ESE testing had been completed, and could think of no reason for Ms. Williams to be in Ms. Green's office in a different building if testing had not been completed. Ms. Sanders testified credibly that her instruction to Ms. Turner was not intended to mean that Ms. Williams was to leave before testing was finished. The intent behind Ms. Sanders? instruction to Ms. Turner was one of compassion and support for Ms. Williams, allowing her to deal with what was understood by many at Windy Hill to be a difficult and troubling personal situation. There is no credible evidence that Ms. Sanders intended to restrict Ms. Williams from performing her duties as the school assessment coordinator if she was capable of doing so, or to authorize her departure from school grounds before testing was complete. After discussing the issue with Ms. Sanders, Ms. Turner spoke with Ms. Williams and told her that “if testing is finished, . . . why don't you go home. You've got some stuff going on. You're trying to move. You need to find a home, that kind of thing. Why don't you go home.” Ms. Turner testified credibly that she did not order Ms. Williams to leave the campus before testing was completed. Ms. Williams decided to act on the offer to go home. She advised Ms. Turner that she had not yet received tests from Ms. Miller. Ms. Turner, who considered herself to be a friend of Ms. Williams, and understood that she was upset and had been so since her arrival at school that morning, allowed her to leave even though the last of the tests had not been returned. Ms. Turner walked with Ms. Williams to her car. As with Ms. Sanders, Ms. Turner?s act was driven by concern for Ms. Williams? well-being. She testified credibly that she was not “marching” Ms. Williams out of the office. Ms. Turner?s account is accepted. After Ms. Williams? departure, Ms. Turner accepted the responsibility of taking delivery of Ms. Miller?s tests and testing materials in Ms. Williams? absence and, upon receipt, locked them in Ms. Williams? office for her to handle. Given the circumstances, that was the only viable course of action. There has been no suggestion in this case that any of Ms. Miller?s materials were missing, or that security was breached so as to cause the invalidation of the test scores. There is no evidence that Ms. Sanders knew that Ms. Williams left campus before testing was complete, or that Ms. Turner had agreed to accept delivery of Ms. Miller?s tests on her behalf. Ms. Sanders was never interviewed about her alleged instruction that Ms. Turner order Ms. Williams off campus while testing was ongoing. Despite the fact that Ms. Turner?s account of the incident would appear to be critical to any reasoned investigation, neither Mr. Scott nor Ms. Altman interviewed Ms. Turner. Mr. Scott -- either in an effort to discount Ms. Turner?s subsequent testimony or to minimize the effect of the failure to interview her -- testified that he “absolutely” believed, based on his “interactions with Ms. Turner” that Ms. Turner “was influenced by Ms. Sanders.” Since Mr. Scott did not interview Ms. Turner, those “interactions” are a mystery. In any event, there is no legitimate reason for an investigator to decline an interview with a material witness because of a subjective belief that the witness may have been influenced by events. Furthermore, there is no evidence to support a finding that Ms. Turner?s testimony in this case was shaded or influenced in any way by the fact that she served as Ms. Sanders? assistant principal. Although Mr. Scott understood that Ms. Turner “escorted” Ms. Williams off campus -- an understanding that is not supported by the evidence -- he was not able to determine that Ms. Sanders directed Ms. Williams to leave. In addition, Ms. Altman testified candidly that she uncovered no evidence or information that Ms. Sanders was aware that Ms. Williams left campus prior to the conclusion of the day?s testing. Mr. Scott?s determination that Ms. Sanders had taken over the testing process or assumed the responsibilities of the school assessment coordinator when she instructed Ms. Williams to return to her office, and later allowed her to go home to attend to her pressing personal affairs, is not supported by the evidence and is rejected. The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment coordinator to monitor the testing rooms. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Student Seating Seating Arrangements The Notice of Discipline alleged that Ms. Sanders failed to ensure that students were seated at least three feet from one another, and that they were not facing one another. Testing in Harris Hall4/ was done at conference-type tables. The estimated size of the tables varied from Ms. Kennel?s estimate of 8 feet in length, to Ms. Boney?s estimate of 12 to 15 feet in length. The most persuasive evidence was that provided by Mr. Scott and Ms. Sanders who described the tables as being 10 feet in length. By applying simple mathematics, six students may be seated at a table 10 feet in length without being less than three feet apart.5/ There was no persuasive evidence as to the width of the tables. The only estimates provided were those of Ms. Williams, who described the width as “maybe” three feet plus a few inches, and Ms. Kennell, who described the tables as “maybe 3 feet wide.” The lack of competent, substantial evidence as to the width of the tables constitutes a failure of proof on the part of the School Board, the size of the tables being a material element of the allegation that students were seated too closely. Ms. Kennell testified that students were seated six to a table, with one on each end, and two on each side. Her testimony was persuasive that the students on the sides were facing the students on the other side. Even though the evidence supports a finding that students were seated facing each other -- though not that they were seated too close together -- that fact alone does not prove that such a violation was attributable to Ms. Sanders. The DOE Manual makes it clear that test administrators have the direct and primary responsibility to prepare the testing facilities, and includes the instruction that the test administrators are to: Arrange the room so the each student will have enough workspace for the test materials. There must be at least three feet between students. Make sure that students are not facing each other when seated at tables and are not in seating (stadium or staggered) that allows them to easily view other students? writing. The DOE Manual also makes it the responsibility of the school assessment coordinator to “[e]nsure that students are not facing each other when seated and are not in seating (stadium or staggered) that allows them to easily view other students? writing . . . . Make sure there is at least three feet between students to prevent cheating.” Neither the DOE Manual nor any other authority cited makes it the responsibility of a school principal to make decisions regarding student seating. Ms. Sanders testified convincingly that the decision as to how students were to be seated was best made by test administrators, stating that “I would not go into a teacher's classroom and say, you need to seat your children here, here, and here. That would be something a teacher would decide.” Her understanding is consistent with the duties and responsibilities established in the DOE Manual. Ms. Sanders? hand-drawn sketch was not a seating chart, and does not support an inference that Ms. Sanders had assumed responsibility or control from the school assessment coordinator and test administrators for seating students. If Ms. Williams had made a timely request for additional resources for the FCAT test, Ms. Sanders would have directed the school custodian to provide her with help and with what was needed before the test was to begin. There were more tables and chairs in the building and, if anyone had indicated that they were needed, there was ample time to have brought them to Harris Hall. No one suggested to Ms. Sanders that the students could not be properly seated, or that additional seating was needed. Ms. Sanders did not know how the test administrators and proctors arranged seating. She gave her motivational speech on the morning of testing, and left before students were seated. Ms. Kennell testified that the “teachers were responsible for the seating of the students. That wasn?t the principal?s duty.” Mr. Scott acknowledged that the test administrator is responsible for the administration of the FCAT test. As applied to the decision to seat students at the tables, he stated “[t]hat would have been [Mr. Bacca?s] responsibility.” Ms. Altman admitted that there was no evidence that Ms. Sanders ever directed that students sit less than three feet apart. The School Board has alleged that Ms. Sanders violated the DOE Manual regarding the seating of students for testing. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Partitions Although not pled with specificity, the School Board argued that problems with seating -- if they had been proven -- could have been resolved if partitions had been used to separate students seated at the tables. Ms. Williams stated that “[w]e?ve been given permission from the District coordinator to use partitions in cases where we can?t sit them 3 feet apart.” Mr. Scott admitted that there was nothing in the DOE Manual that allows the use of dividers or partitions. Having reviewed the DOE Manual, the undersigned agrees that it does not address the issue. During the Writer?s Camp, partitions were not used to separate or divide students seated at a table. Ms. Hurst testified that it would not be appropriate to practice without dividers or partitions at tables, and then administer an exam with partitions and dividers in place. To do so would subject the students to different conditions, which would likely reflect on their performance. Ms. Williams first discussed the issue of partitions with Mr. Bacca on Friday, February 24, 2012. While Writer?s Camp was ongoing, Ms. Williams entered Harris Hall, apparently for the first time after she became aware of the FCAT test. She expressed her concern with student seating. Her concern was directed to the effect that improper seating arrangements might have on her certificate. Ms. Williams made her statements in the presence of the students who were participating in Writer?s Camp. Ms. Kennell testified that Ms. Williams “[w]asn?t any louder than she normally is.” Ms. Kennell thought that she may have been loud enough for students to hear, though she could not be certain if they did. In the investigative report, Mr. Bacca was reported to have stated that Ms. Williams expressed her concern that the decision to not use partitions would cause someone to lose their job in the presence of students, and that her statement had impacted the students in a negative way. Mr. Bacca?s statement as set forth in the investigative report is corroborated by Ms. Kennell?s testimony, both of which are accepted. By the time Mr. Bacca brought the issue of partitions to Ms. Sanders? attention, the practice testing was complete. Mr. Bacca and Ms. Sanders discussed the fact that the students had not practiced with partitions, which was a concern. Ms. Sanders recognized that dividers are not mentioned in the DOE Manual or DOE directions. She noted the size of the room, and thought that as long as the students were spaced out, they could be accommodated without dividers. There is no evidence that Mr. Bacca suggested that students could not be appropriately seated. For those reasons, it was decided that partitions would not be needed. Ms. Sanders understood that Mr. Bacca related their discussion to Ms. Williams. Ms. Williams did not thereafter seek to express her disagreement to Ms. Sanders, or to otherwise ask Ms. Sanders to explain the decision to her. Since the issue of student seating had been discussed as early as the pre-FCAT staff meeting, and since no one suggested to Ms. Sanders that students could not be seated with plenty of space, Ms. Sanders reasonably understood that the issue was being managed by the test administrators. Ms. Williams testified that she approached Ms. Sanders at a party being held at the home of “Pastor G” on Sunday, February 26, 2012, to inquire about where she could obtain some partitions. The alleged discussion was not corroborated by Ms. Sanders, who had no recollection of having had a discussion with Ms. Williams regarding partitions until the morning of the test. Given the totality of the evidence in this proceeding, the undersigned credits the testimony of Ms. Sanders. The investigative report indicates that Ms. Williams sent an e-mail to four teachers late in the evening of Sunday, February 26, 2012, indicating that she was in search of partitions to use on the following Tuesday morning. At some point prior to the FCAT test, Ms. Williams asked Ms. Turner if she knew where she could get some partitions. The most reasonable inference that can be drawn from the evidence is that the inquiry was made on Monday, February 27, 2012. Ms. Turner directed Ms. Williams to a third- grade teacher that she believed may have had some -- either Ms. Marcham or Ms. Boney. The discussion was limited to who might have had partitions, not whether or not they should be used. There is no evidence that Ms. Turner advised Ms. Sanders of the discussion. On Monday afternoon, Ms. Williams and Ms. Boney had a discussion regarding partitions. Ms. Boney had some partitions, but they were too flimsy. They discussed trying to get better ones and taping them down to the tables. In Ms. Boney?s opinion, the effort to get partitions was not planned out. By the morning of February 28, 2012, Ms. Kennell had located some pre-made partitions, and had some that had been made the day before by substitute teachers. She brought them to Harris Hall. She believed that she had plenty of time to go around and ask for more partitions. Her attempt would have been rushed, but she felt that she could have done it. Minutes before the test was to start, when Ms. Sanders had already begun speaking with students, Ms. Boney appeared in Harris Hall with some free-standing three-fold partitions. Others available on the morning of the test would have to have been taped down. Ms. Williams appeared at Harris Hall well after 9:00 a.m. on the morning of testing with the intent to set up partitions. As to the reason for her hurried and last minute efforts, Ms. Williams testified that “[w]e couldn?t set them up prior to [Tuesday morning] because we have car riders coming in and out of [Harris Hall] every day.” That purported reason is not consistent with the evidence as to the availability of partitions prior to the morning of the FCAT test. Ms. Williams did not know whether the number of partitions gathered up by Ms. Kennell and Ms. Boney was sufficient. Even as she was directed to return to her office, Ms. Williams stated to Ms. Sanders that “I don't know if there are enough partitions.” There is no competent, substantial evidence that, even if partitions were necessary, Ms. Williams had arranged for a sufficient number to be available before testing was to begin. Ms. Williams expressed her belief that in the few minutes remaining before testing was to begin, she could have counted out the partitions, gotten more if necessary, and placed the partitions and taped them to the tables without distracting students or disrupting test procedures. Ms. Williams? belief is far-fetched. After her arrival in Harris Hall, Ms. Williams commenced gathering up and placing partitions, not knowing whether there were enough to go around, in a hurried and agitated manner. Ms. Sanders justifiably felt that Ms. Williams? actions were detrimental to the students, and she did not want them to be upset before the testing began. Ms. Sanders instruction to Ms. Williams to return to her office so that testing could commence was an appropriate way of dealing with the issue given Ms. Williams rushed and disruptive efforts. It was not done with intent or effect of taking over the duties of the school assessment coordinator, or of assuming the responsibility of seating students. There is no evidence that Ms. Sanders? decision to forego the use of partitions was made with any understanding that students could not be appropriately seated at the tables and chairs available. She did not believe that partitions were allowed by the DOE Manual -- which they do not appear to be -- and was not aware of Mr. Scott?s ad hoc determination that they were allowable. There is no evidence that Ms. Sanders acted in any way except that calculated to be in the best interests of the students. Her actions were not designed or intended to encourage cheating amongst the students, to influence the test results, or for any improper purpose. The School Board did not allege the issue of partitions as a separate basis for its disciplinary decision apart from that of student seating. To the extent the issue is determined to be included as a basis for discipline, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that the decision to forego the use of partitions was unreasonable or improper under the circumstances, or that the decision violated any provision of the DOE Manual. Visual aids not removed or covered in testing room The Notice of Discipline alleged that Ms. Sanders failed to ensure that visual aids in Harris Hall were removed or covered prior to the administration of the test. During Writer?s Camp, students practiced writing and did sample tests. As the camp progressed, certain pieces that were done by students were taped to the wall of Harris Hall, along with maps and materials related to local colleges and universities, and a large sign that said “Mapping Our Way to a “6”!” The papers and decorations from Writer?s Camp remained on the wall on the day of testing and after. As indicated previously, it is regarded as a sound practice for a school assessment coordinator to inspect the testing venue a day or two before the test, a practice acknowledged as appropriate by Mr. Scott. In that regard, the DOE Manual directs the school assessment coordinator as follows: “In your walk-through of the school prior to testing, check for and remove all unauthorized visual aids posted in classrooms or affixed to student desks.” Ms. Altman confirmed that it is the school assessment coordinator's responsibility to remove any unpermitted visual aid from the walls of the testing venue. As the trained school assessment coordinator, Ms. Williams was in the best position to recognize whether the papers and decorations were a problem, particularly since she had failed to conduct training for the test administrators and proctors that may have refreshed their knowledge of the issue. Ms. Williams testified that she could not inspect Harris Hall on the Monday prior to the test because students were, according to the schedule, having Writer?s Camp until 11:00 a.m. She testified that she could not perform her duty of walking through Harris Hall after Writer?s Camp was done for the day because “I believe I had a meeting off campus, so I was going to do things Tuesday morning.” That explanation is not credible. Ms. Williams met with Ms. Boney to discuss partitions, and distributed the DOE Manuals to test administrators on the Monday afternoon prior to the FCAT test. There was no suggestion that a purported “meeting off campus” interfered with those on-campus activities. The evidence demonstrates that Ms. Williams had time to inspect Harris Hall if she had been interested enough to do so. Instead, she neglected her duty to inspect Harris Hall in any meaningful or timely manner prior to testing. Ms. Williams stated that she had no time to notice the items on the wall upon her appearance in Harris Hall on February 28, 2012, because she was told by Ms. Sanders to leave. Ms. Williams? suggestion that in the few minutes before testing was to commence she could have performed all of her duties regarding the testing venue that she should have done days in advance is unrealistic and rejected. Furthermore, there was no testimony as to how the assembled students may have reacted to a rushed and hurried act of tearing down their work, but common sense suggests that it would have been distracting at best, and likely upsetting to some. The DOE Manual provides that it is the responsibility of the test administrator to: Remove or cover all visual aids on student desks or displayed in the room, including word lists, spelling lists, word definitions, punctuation charts, transitional devices, organizational patterns, etc. Students may not have access to any unauthorized aids. Discuss any concerns with your school assessment coordinator. Ms. Kennell stated that the materials were not something that would be used by a teacher for instructing children. She understood that there were to be no instructional materials on the walls, but saw no need to take down the papers and decorations. Ms. Nelson was in Harris Hall a few days before the administration of the FCAT test to make sure the room was ready for testing. Ms. Nelson could not recall what was on the walls, but had she seen anything inappropriate, she would have taken it down or covered it up. Ms. Boney testified that she thought the materials were testing violations, but did not see fit to remove them because “[i]t wasn't my duty to take them off.” Not only did Ms. Boney take no steps to act on her purported concern, she did not tell anyone of her belief that the papers and decorations might be a violation. When Ms. Sanders entered Harris Hall on the morning of the test, her purpose was to deliver her “pep talk” to the children and leave. She did not inspect the room, and did not notice what was on the walls. No one, including Ms. Boney, suggested to Ms. Sanders that there was anything posted that would have been a concern. Having had an opportunity to review the photographs of the papers and decorations, Ms. Sanders did not believe that they were instructional materials. Since the materials contained no information regarding the prompt that was to be the subject of the February 28, 2012, test, she saw no reason to believe that the papers would help the students to do well on the test. The papers and decorations from Writer?s Camp do not correspond to the examples of prohibited visual aids provided by the DOE, i.e., they were not word lists, spelling lists, word definitions, punctuation charts, transitional devices, or organizational patterns. The greater weight of the evidence demonstrates that the papers and decorations were not unauthorized visual aids. The School Board has failed to prove, by a preponderance of the evidence, that the materials on the walls were unauthorized visual aids, that Ms. Sanders ever saw the papers and decorations, or that Ms. Sanders, rather than the assessment coordinator or test administrators, was responsible for removing any such materials. Seating charts not properly maintained The Notice of Discipline alleged that Ms. Sanders failed to ensure that seating charts were properly maintained. The February 28, 2012 FCAT test was the first FCAT test for which student seating charts were required. During the pre-FCAT planning meeting that Ms. Williams chose to skip, the requirement that student seating charts were to be made by the test administrators was briefly discussed. Ms. Kennell testified that, despite her attendance at the pre-FCAT planning meeting, she was unaware that she had to do a seating chart because she had not received the required training from Ms. Williams. Mr. Scott testified convincingly that it is the responsibility of the school assessment coordinator to train the test administrators to make seating charts and turn them in with the completed tests, and that it is the responsibility of the school assessment coordinator to collect the seating charts at the end of testing. Ms. Williams admitted that it was purely her duty to communicate the need for seating charts to the teachers, and that she knew of nothing in the DOE Manual that created a duty on the part of a school principal to do anything with regard to seating charts. Ms. Williams did not train the test administrators to make seating charts, or to turn them in with the completed tests, nor did she collect the seating charts at the end of testing. Ms. Williams testified that she instructed the teachers “at least six times” to make sure that they prepared seating charts. Her testimony was not substantiated by any other witness, and the suggestion that she provided multiple instructions to the test administrators is not credible. The greater weight of the evidence demonstrates that Ms. Williams gave no instruction to the test administrators regarding seating charts. Ms. Nelson and Ms. Miller were able to glean sufficient information from the DOE Manual or otherwise to know that they were to prepare seating charts, and they did so. They did not, however, know enough to turn them in at the conclusion of testing with their testing materials. Mr. Bacca and Ms. Kennell did not maintain seating charts. On Friday, March 2, 2012, Ms. Williams administered the last of the make-up tests. As she prepared the tests and materials for submission to the DOE, she discovered that she did not have seating charts from any of the test administrators. She went to each of the four test administrators to ask for seating charts. Ms. Nelson and Ms. Miller gave her their charts. Mr. Bacca and Ms. Kennell did not have seating charts for the children in their classes. After make-up testing was complete, Ms. Turner was going to use the restroom located across the hall from Ms. Williams? office. Ms. Williams was having a discussion with one of the fourth-grade teachers about missing seating charts, and they made mention of the situation to Ms. Turner. Having never done a seating chart, and having not known of the requirement for seating charts until that moment, Ms. Turner advised Ms. Williams to figure out what she was supposed to do. Since she was not the school assessment coordinator or a test administrator, it was Ms. Turner?s expressed intent that the testing coordinator and the teachers having that knowledge figure out who was sitting where. Ms. Turner testified credibly that she did not suggest that Ms. Williams falsify the seating charts. Rather, she wanted it done accurately. In order to meet the requirement that she submit seating charts with the other test materials, Ms. Williams decided to make up seating charts “out of the clear blue sky.” As explanation for her falsification of the seating charts, Ms. Williams asserted that she was instructed to do so by Ms. Turner. The greater weight of the evidence demonstrates that Ms. Turner did not instruct Ms. Williams to fabricate seating charts, or to otherwise act improperly in their preparation. Ms. Turner never discussed the issue of the seating charts with Ms. Sanders. Ms. Altman testified candidly that she uncovered no evidence or suggestion that Ms. Sanders was aware of any inaccuracy or problem in the seating charts, or that Ms. Sanders was otherwise involved with them. Despite the complete lack of evidence against Ms. Sanders with regard to the seating charts, Mr. Scott testified, based solely on Ms. Williams? self-serving statements, that Ms. Williams fabricated seating charts “at the request of Administration, from my understanding.” Mr. Scott never interviewed Ms. Turner or anyone else from “Administration” who may have had information regarding such a serious allegation. The undersigned would have not the least bit of hesitation in recommending the most severe sanctions available if the evidence suggested that Ms. Sanders, or any other person in authority, instructed Ms. Williams -- either directly or by any reasonable implication -- to falsify records. However, the preponderance of competent, substantial, and credible evidence in this case demonstrates that such an instruction was never given. Rather, when asked to perform her duty as the school assessment coordinator to see to it that seating charts were provided, Ms. Williams accomplished that task by simply making them up. The School Board has alleged that Ms. Sanders failed to properly maintain seating charts for the FCAT test. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. School assessment coordinator not able to supervise make-up administrations The Notice of Discipline alleged that Ms. Sanders prevented Ms. Williams from being able to supervise make-up FCAT test administrations. After having departed for the day on February 28, 2012, Ms. Williams e-mailed Ms. Sanders to ask if she could come back, finish the make-ups, and pack up tests. Ms. Sanders responded in the affirmative. In general, it was Ms. Sanders? expectation that Ms. Williams would make sure everything for the FCAT test was properly done and turned in. Ms. Nelson administered a make-up test on the morning of February 29, 2012. Ms. Williams should have, and could have, been on campus for that test but elected not to return since all of the make-up tests had not been completed. Ms. Williams? decision was hers, not Ms. Sanders?. Ms. Williams attended a training off-campus on March 1, 2012. She returned to campus and administered a make- up test on the morning of March 2, 2012. She thereupon packed up and delivered the testing materials to the district office. The evidence does not support a finding that Ms. Sanders either prevented or discouraged Ms. Williams from supervising make-up FCAT test administrations on February 29, 2012, or otherwise. The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment coordinator to supervise make-up test administrations. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. No training for test administrators or proctors The Notice of Discipline alleged that Ms. Sanders failed to ensure that test administrators and proctors received training. The DOE Manual provides that it is the responsibility of the district assessment coordinator to “ensure that all school administrators, school assessment coordinators, test administrators and proctors receive adequate training prior to test administration.” The district assessment coordinator failed to ensure that such training occurred. The DOE Manual further provides that the school assessment coordinator is responsible for training all test administrators and proctors. The evidence demonstrates that Ms. Williams did not offer or perform training for test administrators and proctors. Neither the DOE Manual nor any other cited authority makes it the duty or responsibility of a school principal to conduct or ensure that test administrators and proctors have received training. Training of school assessment coordinators was held in mid-January, 2013 for the test to be administered in late February. The idea behind offering training well in advance is to provide plenty of time to prepare for the FCAT test and conduct the test properly. Ms. Kennell and Ms. Boney testified that training of test administrators and proctors is usually done weeks before the test. In her February 22, 2012, e-mail, Ms. Williams asked Ms. Sanders to help her to make arrangements for training. Ms. Sanders offered the modest assistance of Ms. Nelson and Ms. Turner. There is no evidence that such assistance was not provided. Under no reasonable assessment of the facts can Ms. Sanders? response to Ms. Williams be construed as an assumption of the duties of the school assessment coordinator to train test administrators and proctors. In lieu of training, Ms. Williams intended to provide copies of the DOE Manual to the fourth-grade teachers on the Friday before testing so they could read them over the weekend. She did not do so, blaming her neglect on Ms. Turner?s alleged -- but unsubstantiated -- failure to advise teachers and proctors to pick up manuals from Ms. Williams on that Friday. No test administrator or proctor received training from Ms. Williams. All Ms. Williams did to fulfill her duty was to give the test administrators copies of the DOE Manual on the afternoon before the FCAT test. The test administrators were thereafter left to their own devices. Ms. Kennell, who left campus on Monday afternoon before school let out, did not receive the DOE Manual until the morning of the FCAT test, and did not have an opportunity to read it. In her view, things were rushed and last minute. The evidence suggests that Ms. Williams did not give the test proctors, who were also entitled to training, a copy of the DOE Manual. Despite meeting with Ms. Williams on the afternoon of February 27, 2012 regarding partitions, Ms. Boney did not receive a DOE Manual or even minimal training. All Ms. Boney received was the “booklet” that she was to pass along to Ms. Kennell. Ms. Williams testified that she typed up “brief training notes,” and gave them to the test administrators along with the DOE Manuals. No other witness mentioned having received training notes. No training notes were introduced as evidence. The contents of the training notes were not described. The greater weight of the evidence indicates that training notes were not provided to test administrators. What is clear is that Ms. Williams failed to take any initiative to perform even the most rudimentary “training,” and made no meaningful effort to timely provide DOE Manuals to the test administrators and proctors, as was her job. Her failure in that regard was in spite of, and not because of, Ms. Sanders? offer of assistance. The evidence is overwhelming that Ms. Williams, due to her own neglect, failed to provide the training that was her responsibility under the DOE Manual. No one advised Ms. Sanders that Ms. Williams had not provided training. Ms. Altman, relying exclusively on Ms. Williams? account, concluded that Ms. Sanders and Ms. Nelson had prevented Ms. Williams from conducting the training. That conclusion was drawn without having interviewed Ms. Sanders or Ms. Nelson regarding FCAT training. The investigatory conclusion that Ms. Sanders prevented, prohibited, or blocked Ms. Williams from conducting FCAT training is not supported by a shred of competent, substantial, and credible evidence. Furthermore, the suggestion that Ms. Sanders either knew of or was responsible for Ms. Williams? misfeasance is without evidentiary support. The School Board has alleged that Ms. Sanders failed to properly adhere to the requirement in the DOE Manual regarding training for test administrators and proctors. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Allegation of Failing to Report Violations that were Known to Respondent at the Time of the Administration of the Test The Notice of Discipline alleged that Ms. Sanders “failed to report violations that were known to [Ms. Sanders] at the time of the administration of the test.” The evidence in this case, as recited herein, does not support a finding that Ms. Sanders failed to report violations of FCAT testing standards that were known to her at the time of the administration of the test. Ms. Sanders appointed a school assessment coordinator who, based on past performance, she trusted to competently perform her duties. Except with regard to the disputed issue of the need for partitions -- an issue that was not proven to be a violation -- no issue regarding Ms. Williams? concerns with testing conditions, or of her neglect and malfeasance regarding the FCAT test, were brought to the attention of Ms. Sanders by the faculty or staff of Windy Hill. Ms. Sanders? understanding of testing violations, until her receipt of the Notice of Discipline, was limited to the allegation that Mr. Bacca had learned of and divulged the testing prompt, an allegation that was brought to her attention after-the-fact by Mr. Scott and Ms. Altman. Ms. Sanders knew of no irregularities in the administration of the February 28, 2012, FCAT test at the time of the administration of the test. The suggestion that Ms. Sanders had taken over the duties of the school assessment coordinator, and that knowledge of alleged testing violations should be therefore imputed to her, is not supported by any competent, substantial, and credible evidence. The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders failed to report violations that were known to her at the time of the administration of the test. Allegation that Respondent Made Inappropriate Comments to Staff Regarding the Investigation of the Reported Violations The Notice of Discipline alleged that Ms. Sanders “made inappropriate comments to staff regarding the investigation of the reported violations.” On or about March 6, 2012, Ms. Altman advised Ms. Sanders of the investigation. She did not reveal the precise nature or target(s) of the investigation, only that it involved teacher improprieties related to the administration of the FCAT test. March 7, 2012, was an early release day. After students were released for the day, Ms. Sanders attended a regularly scheduled early-release staff meeting. All teachers were required to attend. The allegation that Respondent made inappropriate statements to staff came as the result of her statements at the faculty staff meeting. Since the School Board did not specify what comments were “inappropriate,” or what might make a comment “inappropriate,” the allegation is so vague and non-specific as to raise issues of a lack of meaningful notice and due process. However, having heard the recording of the meeting, reviewed the transcript, and taken testimony from attendees, the undersigned is prepared to make findings as to whether any comment might reasonably be construed as “inappropriate,” given the facts of this case. Ms. Sanders was never interviewed about her allegedly threatening and inappropriate comments. The staff meeting was taped by one of the attendees. Thus, a record of exactly what was said and not said was available. Ms. Altman testified that she learned of the recording during the investigatory interviews, and spoke to the person who had the recording. However, in one of the more baffling elements of the investigation, neither Mr. Scott nor Ms. Altman obtained a copy of the recording, and never listened to it before making their conclusions as to what was said by Ms. Sanders. Thus, Mr. Scott and Ms. Altman proceeded to form conclusions regarding statements made at the meeting without any reference to the available best evidence of that meeting. Comments Regarding Discussions of the Investigation, and Progressive Discipline for a Violation While she was on the Windy Hill campus conducting interviews, Ms. Altman advised Ms. Sanders that she should instruct her staff that they were not to discuss the investigation, and that progressive discipline could result if they discussed the investigation. Ms. Altman testified that she intended Ms. Sanders to advise only the handful of teachers that had been interviewed that they were not to discuss the investigation. Ms. Sanders testified that she understood Ms. Altman?s advice to be that she was “to pull my staff together and have a conversation with them about an open investigation and that -- how serious that was and that they were not to talk about [the] open investigation.” Ms. Sanders? interpretation was reasonable. She thereafter complied with Ms. Altman?s advice. When Ms. Sanders appeared at the staff meeting, she was very emotional as a result of the allegations directed towards the fourth-grade teachers. She expressed her trust that the fourth-grade teachers had done nothing improper, and asked the faculty to rally their support. Ms. Sanders dutifully related Ms. Altman?s instruction that faculty members were not to discuss the investigation. Ms. Sanders included co-workers, friends, and family in her admonition. The instruction that faculty could not discuss the matter with family members may have been overly restrictive, but it was not improper or inappropriate. Ms. Sanders believed it to be warranted, given the seriousness of the allegations, and it was a restriction that she complied with herself. Ms. Sanders also related Ms. Altman?s instruction that discussing the investigation could result in progressive discipline. Progressive discipline is a means of administering discipline in steps, starting with a verbal warning, then a written reprimand, proceeding to suspension, and eventually termination. Based on her knowledge of other investigations, Ms. Sanders viewed the instruction provided to the faculty as a first-step verbal warning of the prohibited conduct. She understood that a breach of the prohibition would thus be subject to discipline at the next step. Ms. Sanders? expression of her understanding, which was given in an effort to keep her teachers from getting into trouble, was not inappropriate. Due to the vagueness of the School Board allegation, certain of the conclusions and statements referenced in the investigative report and witness testimony must be addressed. Ms. Boney testified that Ms. Sanders privately asked her to pray before the staff meeting, and publically asked her to pray at the end of the meeting. Ms. Sanders did not corroborate Ms. Boney?s testimony regarding a pre-meeting prayer, and such a private request -- if made -- was not during the faculty meeting and would not support the allegation as pled. The recording of the faculty meeting, which is the best evidence of the meeting, provides no evidence of a request having been made during the meeting. Thus, the allegation that Ms. Sanders asked Ms. Boney to pray, such as it is, is not supported by a preponderance of the evidence. Ms. Williams testified that Ms. Sanders stated that “nothing was anonymous and she would find out who made the phone call.” A simple review of the recording would have revealed her statement to be false. Ms. Sanders commented on the fact that the complaint was made anonymously, and stated her understanding that calls made to the district office were not anonymous to the district because the district used caller ID. Contrary to Ms. Williams? account, Ms. Sanders plainly stated during the meeting that “I don?t know who the individual is, and, frankly, I don?t want to know . . . . And they?re not going to tell me who it is. . .” Furthermore, the meeting concluded with her stating that “[t]his is not going to become a witch hunt. This is no longer about the person who called in the report. We?re going to walk out this door and get back up because what?s done is done.” Thus, any suggestion that Ms. Sanders intended to ferret out the source of the phone call as stated by Ms. Williams is completely unfounded. Ms. Kennell testified that Ms. Sanders said that if any “snoops” came on campus, the teachers should not talk to them but should ask for a lawyer, a statement that was memorialized in the investigative report. The statement has no basis in fact. The instruction given by Ms. Sanders was clearly that staff was not to discuss the investigation with “family, your friends, your neighbors,” or with other staff members. There was no reference to lawyers at all. Having listened to the recording and read the transcript, and having heard testimony from attendees, the undersigned finds nothing to support that Ms. Sanders suggested in any way that staff was not to cooperate with the investigation. Ms. Young testified that “some of the comments were inappropriate . . . the tone of the conversation and certainly that the way the message was received by those who have shared this information was very threatening.” Although she read the transcript,6/ Ms. Young admitted that she had not listened to the recording of the meeting. She was therefore in no position to gain a sense of the tone of the conversation. Had she listened to the recording, she would have heard expressions of support and determination, laughter, and positive comments from a faculty faced with difficult circumstances. While Ms. Sanders was emotional and upset, and tended to repeatedly drive home Ms. Altman?s instructions, her comments, taken in their entirety and in context were not inappropriate or threatening. If some perceived Ms. Sanders? comments as threatening, it was not due to the substance or delivery of the comments themselves. Ms. Young also testified that Ms. Sanders? statements caused “great concern by the teachers that there would be some type of retribution.” There is no evidence whatsoever in the record of this proceeding that would support an attribution of retaliatory intent or conduct on the part of Ms. Sanders, and the suggestion that faculty members had legitimate and well- founded fears of retaliation is rejected. The allegation regarding Ms. Sanders? statements at the March 7, 2012, faculty meeting appears to be directed to the supposition that she made her statements with the intent to intimidate staff or to discourage others from reporting illegal conduct regarding the FCAT. That conclusion cannot be reasonably drawn from the record. Having heard the recording of the meeting, and the testimony of the participants, it is clear that Ms. Sanders delivered an accurate accounting of what she had been told to do by Ms. Altman. There is no competent, substantial, and credible evidence in the record of this proceeding that Ms. Sanders would not cooperate, or would encourage others to not cooperate with the investigation. Furthermore, if staff was “intimidated,” their intimidation was due to their own subjective but incorrect impressions of Ms. Sanders? comments. The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding a prohibition against discussing the investigation, and the discipline for a breach of the prohibition. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Comments Regarding Ms. Sanders? Faith, including Biblical References The School Board also appears to contend that Ms. Sanders? references to her faith, including recitation of verses from the Bible, constituted a violation of standards applicable to school administrators. How such comments might be construed as being ones “regarding the investigation of the reported violations” is unclear. In any event, both Mr. Scott and Ms. Young testified that references to religion and scripture at a faculty staff meeting were “inappropriate.” The only standard referenced in the Notice of Discipline to which a reference to one?s faith and to scripture might reasonably apply is rule 6B-1.001(3), which has since been transferred to rule 6A-10.080(3), and which provides that: Aware of the importance of maintaining the respect and confidence of one?s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Thus, the School Board?s allegation suggests that Ms. Sanders? references to her faith and scripture was conduct that was, to a degree, unethical. The March 7, 2012, faculty staff meeting, coming close on the heels of her being notified of the allegation that a member or members of her staff had been alleged to have cheated in the administration of the FCAT, was a troubling matter for Ms. Sanders. Ms. Sanders acknowledged that she was very emotional by what she perceived as an unwarranted complaint against a group that she regarded as her “family.” She expressed concern not only for the fourth-grade teachers involved, but for the effect that allegations of cheating would have on the students at Windy Hill. In dealing with the issue, Ms. Sanders presented a description of her beliefs. She made it clear that she was not trying to tell anyone what to believe, but was offering it “because this is the only way I know that I can do this job everyday.” The context and words of her comments made it clear that she was not proselytizing. Rather, as stated by Ms. Sanders, “it was not to persuade them. It was to let them know this is bad, I'm upset, you're upset . . . . But this is who I am. If you don't believe what I believe, that's okay.” The undersigned recognizes the historical precedent and importance of the doctrine generally known as the separation of church and state, which derives from the establishment clause of the United States Constitution7/ and the Florida Constitution.8/ The question in this case, however, is not whether Ms. Sanders? comments may have violated the establishment clause -- a question best suited for resolution by the judicial branch -- but whether a non-proselytizing reference to one?s faith and to scripture, delivered in a meeting of adult faculty and in the context of a trying and emotional occurrence, results in a conclusion that an educator has failed to strive to “achieve and sustain the highest degree of ethical conduct” so as to warrant the imposition of disciplinary sanctions. Ms. Sanders stated that, she had done the best of her ability to handle a very difficult situation. It is clear that her quoting of scripture was not intended to bring anyone to her point of view. Though her emotion and concerns could have, and perhaps should have, been channeled differently, neither the substance nor the delivery of her comments at the March 7, 2012, faculty meeting was “inappropriate” under the circumstances, nor were they less than “ethical conduct.” The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding the investigation of the reported violations as a result of her references to her faith and to scripture so as to violate applicable provisions of the Code of Ethics. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Violations of the Code of Ethics Rule 6B-1.001(2) The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(2), which has been transferred and now exists as rule 6A-10.080(2). That rule provides that: The educator?s primary professional concern will always be for the student and for the development of the student?s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that Ms. Sanders? actions were motivated by her professional and personal concern for the students at Windy Hill, particularly those involved in the FCAT test. The greater weight of the evidence also demonstrates that Ms. Sanders? actions with regard to the February 28, 2012, FCAT test and the subsequent investigation of alleged testing irregularities constituted a reasonable and appropriate exercise of her best professional judgment and integrity. There is no competent, substantial and credible evidence to the contrary. The School Board has alleged that Ms. Sanders failed to direct her primary professional concern to the students at Windy Hill and for the development of the students? potential, and that she failed to exercise her best professional judgment and integrity. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Rule 6B-1.001(3) The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(3), which has been transferred and now exists as rule 6A-10.080(3). That rule provides that: Aware of the importance of maintaining the respect and confidence of one?s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that, with regard to the February 28, 2012, FCAT test and the subsequent investigation of alleged testing irregularities, Ms. Sanders acted in a manner that was designed to, and did, achieve and sustain the highest degree of ethical conduct. There is no competent, substantial and credible evidence to the contrary. Given the facts of this case, there is no reason why Ms. Sanders should not have the respect and confidence of her colleagues, of students, of parents, and of other members of the community. The School Board has alleged that Ms. Sanders failed to achieve and sustain the highest degree of ethical conduct, and that her actions resulted in a loss of the respect and confidence of her colleagues, of students, of parents, and of other members of the community. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Conclusion The School Board failed to prove the allegations in the Notice of Discipline by a preponderance of competent, substantial evidence. Ms. Sanders did everything expected or required of a principal in administering the FCAT test and in responding to allegations of irregularities. She was, however, faced with a school assessment coordinator who thoroughly neglected her duties, and who was all too willing to deflect personal responsibility for her failings onto others. Far from trying to find a scapegoat, Ms. Sanders? defense of the allegations in this case was warranted and effective. Thus, the Notice of Discipline and other charges that form the basis of this proceeding should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order dismissing the Notice of Discipline in its entirety. DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013.
The Issue The issue is whether Respondent, Department of Children and Family Services, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Julie A. Bedell. Specifically, Petitioner alleged that after she was hired, completed training, and was assigned to a section, her section supervisor terminated her probationary employment because of her age (49 years), while other younger employees were retained.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: Respondent, Department of Children and Family Services (Agency), an agency of the State of Florida, at all times material to this cause, was an "employer," as that term is defined in Section 760.02(7), Florida Statutes (2002).1 Petitioner, Julie A. Bedell (Ms. Bedell), at all times material to this cause, was 49 years old and an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes. All Agency personnel matters, at all times material to this cause in 2002, were centralized. Agency personnel was authorized, within budgetary constraints, to determine and advertise available positions, receive employment applications, evaluate and qualify each applicant, identify applicants who met minimal qualifications, and to hire qualified applicants to fill vacant positions throughout District 1, that included Fort Myers, Florida. The minimum qualifications that must be met before one becomes qualified for a permanent position as a family service counselor (FSC) with the Agency are a bachelor's degree from an accredited institution, attainment of a child protection certification, and successful completion of a one-year probation period. Child protection certification is earned after attending eight weeks of PDC training, passing a written assessment test, and successfully completing a field-based (on- the-job training) assessment evaluation. New employees must successfully complete, from the date of hire, a one-year probationary period before attaining permanent employment status. Completion of a field-based performance assessment shall occur during the one-year probationary period. At all times material, Ms. Bedell was a probationary employee. A probationary employee is one who does not have the benefit of termination only for cause, as does a permanent employee. By Agency rule probationary employees may, at the discretion of the Agency, be terminated without cause. On January 25, 2002, the Agency hired Ms. Bedell as a probationary employee in the position of a FSC. Ms. Bedell attended Human Resources (HR) orientation and there received the Agency's Employees' Handbook, containing, among other subjects, information regarding hours of work, lunch hour, breaks, and the requirement for approval from one's supervisor before variation of one's 8:00 a.m. to 5:00 p.m. work schedules.2 Thereafter, Joyce Mieses, Ms. Bedell's FSC unit supervisor, instructed and informed Ms. Bedell of policies, regulations, and operational procedures to which she was subject as a member of the FSC unit. Ms. Bedell was informed by Ms. Mieses that operational regulations included, but were not limited to: (1) employee's duty hours were limited to Monday through Friday from 8:00 a.m. to 5:00 p.m. with lunch hour from 12:00 p.m. to 1:00 p.m.; (2) employee's timesheets were to reflect 40 hours per week divided into work days of 8:00 a.m. to 5:00 p.m., Monday through Friday; (3) on those infrequent occasions when an employee was required, by demands of a particular assignment, to be at work before 8:00 a.m., or to leave work before 5:00 p.m. or work later than 5:00 p.m., prior approval from a supervisor was required; and (4) a supervisor's prior approval was required before an Agency employee could "flex" their time. Flex(ing) time is the term used to identify specific periods of approved deviation from the 8:00 a.m. to 5:00 p.m. work day (late arrivals or early departures) given an employee to equal the amount of overtime (early arrivals or late departures) previously incurred by that employee. At all times material, Ms. Bedell was aware of and fully understood the Agency's policy of prior approval by a supervisor before she would be permitted to work earlier or later than the 8:00 a.m. to 5:00 p.m. daily time constraints.3 On January 28, 2002, Ms. Bedell attended her first PDC class training session. The training sessions concluded on March 21, 2002. The PDC at USF conducted the training classes. All new employees are required to attend the PDC training classes and are placed in a "Trainee" status as required by Florida Administrative Code Rule 60L-33.003(2)(c), which, in pertinent part, required time spent in trainee status shall not count toward completion of the required one-year probationary period. Including Ms. Bedell, there were 13 probationary trainee employees in the January 28, 2002, training class. The class makeup consisted of seven trainees under the age 40 and six trainees over the age 40. The PDC training classes began at 9:00 a.m. and ended at 4:30 p.m., or earlier when excused by the instructor. The PDC service center was located approximately seven miles from the Agency office complex. One-way travel time between the two locations was approximately 15 to 20 minutes. All probationary trainees were instructed that when they are not in a PDC training classes, they are required to be in the Agency's offices doing field service activities. Nancy Jackson, district mentor coordinator for the Agency, assigned Robert Richmond, an experienced FSC employee, as Ms. Bedell's mentor. The duty of the mentor to the trainees was to provide "hands-on" assistance in areas where the trainee encountered specific problems in acclimating themselves to the procedural processes of providing FSC services. Ms. Mieses personally instructed Ms. Bedell to report to the PDC training classes at 8:00 a.m. daily and, after each class, to return to work in the FSC unit until 5:00 p.m. She also instructed Ms. Bedell that her time card must reflect 8:00 a.m. to 5:00 p.m. as time actually worked each day. Ms. Mieses instructed Ms. Bedell that her personal approval was required before Ms. Bedell could enter a time change, from the 8:00 a.m. to 5:00 p.m. as hours worked each day, on her time-card. Ms. Mieses explained to Ms. Bedell the Agency's policy regarding the use of "flex" time as a means to compensate employees for those infrequent situations where an FSC would be required to report to work before 8:00 a.m. or work after 5:00 p.m. Ms. Bedell knew and fully understood that to flex one's 8:00 a.m. to 5:00 p.m., 40-hour-per-week work time meant to either come in late or leave early on a specific day. Notwithstanding Ms. Mieses instructions and Ms. Bedell's understanding of both timecard entries and prior approval before deviation from established time constraints, during the period from January 28, 2002, through April 1, 2002, the record evidence established that Ms. Bedell, without approval by Ms. Mieses, intentionally skipped her scheduled lunch hour (12:00 p.m. to 1:00 p.m.) on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Ms. Bedell left work at 4:00 p.m. on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Each unapproved, early departure from work by Ms. Bedell was a separate cause for her termination. Ms. Bedell intended not to request and, in fact, did not request Ms. Mieses' approval before she skipped her lunch hours and "flexed" her time by departing early from work. Ms. Bedell deliberately chose to ignore the Agency's prior approval policy requirement before skipping lunch and flexing her time. Ms. Bedell repeated her established pattern of disregarding prior supervisor approval policy through her tenure with the Agency. Ms. Bedell acknowledged her intention to not follow instructions given by Ms. Mieses, with which she did not agree.4 On several occasions, Ms. Mieses counseled with Ms. Bedell and warned her about her failure to follow instructions regarding prior approval before deviations from standard procedures. Ms. Mieses instructed Ms. Bedell to discontinue that practice. Notwithstanding the conferences and warnings, on February 27, 2002, again without prior approval, Ms. Bedell worked 30 minutes of unnecessary overtime as an observer with an experienced FSC on a home visit. "Unnecessary" overtime is the term used to identify time spent on FSC tasks beyond the time that the supervisor, based upon the task(s) and the experiences of others FCSs, had predetermined was sufficient time to accomplish a given task(s). Ms. Bedell ignored her supervisor's instruction of a one-hour observation period and chose to stay longer on this home visit. On March 20, 2002, Ms. Bedell knowingly recorded an incorrect time on her timesheet. She recorded that the PDC class ended at 5:00 p.m., when in fact, the PDC class ended at 3:30 p.m. When Ms. Mieses asked Ms. Bedell about the "class ending time" discrepancy, Ms. Bedell intentionally misled Ms. Mieses by insisting that she was "in" class until 5:00 p.m. on March 20, 2002. The PDC class instructor subsequently advised Ms. Mieses that she dismissed the class and all students departed the PDC facility at 3:30 p.m. on March 20, 2002. Ms. Mieses informed Ms. Bedell by e-mail that the PDC instructor confirmed that she released the class and all trainees were out of the facility classroom at 3:30 p.m. on March 20, 2002. After receiving the e-mail, Ms. Bedell retracted her position and corrected her timesheet. Ms. Bedell's misrepresentation of the time class ended on March 20, 2002, and her entry thereof on her time card provided two separate causes for termination: (1) intentional misrepresentation (lying); and (2) falsification of state records. She was again counseled but not formally disciplined for these offenses. On March 21, 2002, Ms. Bedell was assigned her first case file. The file contained ten pages of pre-service intervention information. When a case is brought to the attention of the FSC unit, an investigation is undertaken, a home visit (or court visit if necessary) is arranged, and a situation specific case plan is developed by the assigned FSC, followed by a staffing comprised of all parties within the chain of operations to review, modify, and refine the case plan to accommodate the needs of the family. On March 22, 2002, Ms. Bedell, without approval, came to work before 8:00 a.m. (no specific time in the record) to allegedly review the ten pages in her case file. At approximately 3:30 p.m. that afternoon, Ms. Bedell entered Ms. Mieses office and announced that she was leaving for the day because she came in early to review her case file. Ms. Mieses' attempt to stop Ms. Bedell from leaving work early (flexing her time) was ignored by Ms. Bedell as she left the FSC unit in direct violation of Ms. Mieses' instruction not to do so. Three days later, March 25, 2002, Ms. Bedell received her second case. This case was also assigned after pre-service intervention. Ms. Bedell discussed her second case with her mentor, and he determined that Ms. Bedell should use another case plan as a model from which to learn how to develop and draft her "first" case plan. Mr. Richmond informed Ms. Mieses of his training decision, and she promptly e-mailed a finished case plan to Ms. Bedell to assist her in developing and drafting her first case plan. Gary Evanoff, another experienced FSC unit co-worker, in keeping with the FSC unit's team approach, demonstrated to Ms. Bedell how to split her computer screen displaying the two case plans using the model case plan as a guide for drafting the proposed case plan. These additional training instructions and directions from experienced FSC unit co-workers were given to assist Ms. Bedell in the preparation of her first case plan. At all times material, the FSC unit to which Ms. Bedell was assigned had an open door policy and employed a "team approach" to train their new unit members. The team approach meant that when a new trainee enters the unit, other members of the FSC unit, the supervisor, the assigned mentor, and the field trainer undertook the joint responsibility of sharing in the overall training of their new unit co-worker. The unrefuted evidence of record demonstrated that Ms. Mieses arranged for Ms. Bedell to: (1) shadow other FSC counselors, (2) accompany other FSCs on field service activities, (3) ride along and observe home visits, (4) attend staffing(s), and (5) accompany other FSCs when court appearances were required. No co-worker in Ms. Bedell's FSC unit knew Ms. Bedell's age. Not a single witness called by Ms. Bedell observed treatment (favorable or otherwise) given to other unit employees that was not likewise given and/or made available to Ms. Bedell during her employment tenure with the Agency. Ms. Bedell would frequently interrupt Mr. Richmond as he worked at his desk. The frequency of her interruptions, the questions she asked, and the help she sought became a burdensome interference. As an experienced mentor of many other new FSC employees, Mr. Richmond surmised that Ms. Bedell came to him, in effect, for him to do for her tasks pertaining to her case, rather than attempting to do those tasks herself. Mr. Richmond opined that Ms. Bedell was not concerned with self-improvement through the process of learning from and by her mistakes. Mr. Richmond discussed his concern with Ms. Mieses and suggested that a more effective use of time for both him and Ms. Bedell would be to schedule a time for Ms. Bedell's questions. Ms. Mieses instructed Ms. Bedell to meet with Mr. Richmond and establish a schedule for mentor training meetings. Ms. Bedell did not comply with that request. Based upon the frequency of her visits and the questions she asked, Mr. Richmond concluded "compared to other mentorees at the same stage of training, she [Ms. Bedell] was not grasping basic terms and operational processes that was [sic] covered in her classroom training." He shared his observations, mentor relationship concerns, and conclusions with Ms. Mieses. Mr. Richmond never observed nor was he ever made aware of any discriminatory action taken against Ms. Bedell. He never observed nor was he ever made aware of any treatment different from the treatment of other FSC unit employees directed toward Ms. Bedell. He never considered nor was he aware of Ms. Bedell's age. Sue Carey, PDC field instructor, identified problems she observed and became aware of with Ms. Bedell's knowledge and work skills. After two home visits, Ms. Bedell voluntarily shared with Ms. Carey her "trouble liking" one family and her "trouble trusting" another family. In response to Ms. Bedell's expressed trouble (feelings and attitude) of "liking" and "trusting" families comments, Ms. Carey informed Ms. Bedell that her negative feelings and attitude (liking and trusting) towards families served by the Agency through FSC were of serious and professional concern to her and the FSC unit. Ms. Carey's follow-up field assessment review of April 1, 2002, described Ms. Bedell's knowledge of basic terms and operational processes contained in the two cases assigned to her as "extremely limited." Ms. Carey never observed nor was she ever made aware of any discriminatory action taken against Ms. Bedell. She never observed nor was she ever made aware of any treatment different from the treatment afforded other FSC unit employees directed toward Ms. Bedell. Ms. Carey never considered nor did she know Ms. Bedell's age. Ms. Bedell voluntarily chose to share and express her "feelings" and "attitude" about families she encountered with Ms. Carey, but she never shared or expressed her job-related "feelings" (of frustrations) and "attitude" resulting from a lack of or a denial of training; from derogatory, age-related remarks made to her; and discrimination by different treatment because of her age with Ms. Carey. The unrefuted evidence demonstrated that throughout her probationary employment tenure with the Agency, Ms. Bedell received the same standard training as other probationary trainees, regardless of the age of the trainee. There is no record evidence to substantiate a single instance where another probationary-trainee received "training" (assistance and or directions) that had intentionally not been made available or intentionally denied to Ms. Bedell. Ms. Bedell's allegation of disparaging age-based remarks made to her by a Jim Robertson, fellow trainee, during their PDC class on February 14, 2002, is not supported by evidence of record. Mr. Robertson denied knowledge of Ms. Bedell's age and denied making disparaging, age-based remarks to Ms. Bedell at any time during her employment tenure. On or about March 28, 2002, Ms. Mieses, through discussions and conversations with Mr. Richmond, Ms. Carey, and others, concluded that a structured, 8:00 a.m.-to-5:00 p.m., office job would probably better suit Ms. Bedell's personality. After further consideration of Ms. Bedell's demonstrated lack of respect for policies, her difficulty and refusal to following instructions, her ineffective utilization of her time, her limited grasp of basic FSC terminology, and her lack of acclimation to the FSC processes, all of which are common to a FSC worker with an assigned case load, Ms. Mieses submitted Ms. Bedell's name to the licensing unit supervisor for consideration as a candidate for a position in the licensing unit. It is within Ms. Mieses' supervisory authority to recommend the transfer placement of her unit personnel to positions she believes they may be best suited. The licensing unit office worked from 8:00 a.m. to 5:00 p.m. daily. Licensing was primarily an in-house unit with little or no out-of-office field activities or family interactions. Ms. Mieses, though not required, informed Ms. Bedell that her name was forwarded to the licensing unit supervisor who was responsible for making the selection. She explained to Ms. Bedell why she believed the potential transfer to the licensing unit would be in her best interest. At the time Ms. Bedell was informed of the potential transfer, she expressed no concerns of disparate treatment. She expressed no concerns that the possible transfer was made "because of her age." The licensing unit supervisor, however, had two candidates from which to choose from among the group of employees initially hired with Ms. Bedell and determined the other candidate, not Ms. Bedell, was the best suited candidate for the position. The licensing unit supervisor made her choice based primarily on two factors; first, the chosen candidate's long and stable work history of having taught in public schools for over 20 years, and second, the chosen candidate's long and varied experiences dealing with children and their families.5 The ages of the two candidates were not considered by the supervisor of licensing in filling the position. It is significant, however, that the candidate chosen by the licensing supervisor was both within the same protected class as Ms. Bedell and older than Ms. Bedell. The person chosen by licensing voluntarily resigned from the Agency after working in the unit a short period of time. Ms. Bedell's allegation and argument that the Agency's subsequent acceptance of the licensing unit candidate's resignation and not affording her the opportunity or option to resign before termination demonstrated discrimination (different treatment) is not based on fact. Voluntary resignation was available to Ms. Bedell throughout her tenure with the Agency. It was her post-termination attempt to broker a "resignation" that aborted her negotiations with HR. Her proposal consisted of tendering her resignation in exchange for the Agency either withdrawing from or sealing in her personnel file the termination letter. The post-termination negotiations failed.6 On April 1, 2002, Ms. Mieses provided Rita Young, district operations program manager and her supervisor, a documented outline of instances of insubordination, specific failures and refusals to follow instructions by Ms. Bedell. Based upon her many years as a FSC supervisor, Ms. Mieses' concerns resulted from Ms. Bedell's job-related inabilities and her repeated refusals to follow instructions and directions during her probationary employment period. Based upon Ms. Bedell's failures and refusals to follow instructions, Ms. Mieses concluded that once Ms. Bedell was in the field working as a permanent employee, she would continue her pattern of failing and refusing to follow instructions and directions. Ms. Mieses was convinced that Ms. Bedell's demonstrated propensity for disobedience of Agency policy would adversely affect the safety of children and families served by the FSC unit and the Agency. Based on her observations of Ms. Bedell's characteristic traits, her experiences with Ms. Bedell's lack of respect for supervisory authority, Ms. Bedell's demonstrated inability to follow directions, and Ms. Bedell's propensity to do things her way, Ms. Mieses recommended Ms. Bedell's termination as a probationary employee to her supervisor, Rita Young. Ms. Young possessed authority to disagree and overturn Ms. Mieses' recommendation. Ms. Young did not overturn the recommended termination. Ms. Young made the final decision to terminate Ms. Bedell and, following protocol, directed Deanna Gilkerson to forward the termination decision and supporting information to HR for review. Machel Poier, HR employee, relying upon the experience and knowledge of staff, agreed with staff's recommendation to terminate Ms. Bedell. Ms. Poier conferred with her supervisor, Coral Conner, who also agreed with staff's recommendation to terminate Ms. Bedell. Thereafter, Ms. Poier prepared the probationary termination form and sent it to Ms. Gilkerson for her signature, officially terminating Ms. Bedell's employment at the close of business on April 2, 2002. The documentation process, the review process, and the final decision making processes were in full accord with Agency protocol, policy, and procedures for termination of a probationary employee by the Agency. Ms. Bedell did not produce, through the testimonies of her witnesses, nor through admitted documentation, evidence that her age (even "if" known at the time) was considered by and/or a concern of Ms. Mieses, Ms. Young, Ms. Gilkerson, Ms. Poier, or Ms. Conner in their concurrence with recommendations to terminate her probationary employment with the Agency. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, evidence of discrimination by treatment afforded other younger (and/or same age) employees that was different from the treatment afforded her. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, that her supervisor, FSC unit co-workers, or any other Agency employee denied, prevented, or hindered her access to her obtaining probationary employee training that was offered during her tenure with the Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING Petitioner's, Julie A. Bedell, Petition for Relief based on age discrimination against Respondent, Department of Children and Family Services. DONE AND ENTERED this 26th day of March 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2004.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue The issues presented are whether check marks that Respondent placed on the test booklets of some students during the second day of a Florida Comprehensive Assessment Test violated Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B-1.006(3)(a), (b), (d), and , (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009. The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie). At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class. As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency. It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise. The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860. Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage. No aggravating factors are evidenced in the record. However, several mitigating factors are in evidence. For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings. The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test. During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers. The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b). Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees. Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a). Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator. Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents. The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified. In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d). Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade. It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher. Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. None of the affected students testified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of coaching students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003), not guilty of the remaining charged violations, issuing a written reprimand to Respondent, and requiring Respondent to complete relevant training before proctoring another FCAT. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2005. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue At issue in this proceeding is whether Petitioner's application for a license to operate an Assisted Living Facility should be approved.
Findings Of Fact Petitioner's application and the Agency's denial On or about September 5, 1997, Petitioner, Gwendolyn Whittingham, submitted an application to Respondent, Agency for Health Care Administration (Agency), for initial licensure of a 4-bed Assisted Living Facility (ALF) to be known as Gwen's Heavenly Resort, and to be located at 15560 Northwest 26th Avenue, Opa Locka, Florida. Respondent was named as the owner and proposed administrator. Pertinent to this case, item VIIA on the application, entitled "Criminal Abuse History," required that Petitioner answer yes or no to the following question by checking the appropriate box: Has any owner, administrator, partner, or director ever been arrested for -- or convicted of-- a crime involving injury to persons, or involving financial or business management (e.g. assault, battery, embezzlement, or fraud)? The question further provided: If the answer . . . is "YES" attach a separate letter of explanation stating the charges, dates of arrest/conviction, and disposition for each incident. Check will be made for each applicant. Petitioner did not check either the "YES" box or the "NO" box, but wrote in the words "No Injury." Also pertinent to this case, item VIII of the application provided the following "application checklist" for an initial licensure application: Are all sections on this application completed? Is the application signed & notarized below? Completed Attachment A - Statement of Operations? Completed Attachment B - Statement of Assets & Liabilities? Completed Attachment C - Zoning Certificate? Have you attached Proof of Business Liability Insurance? Have you submitted the correct fee? The check list included the following cautionary statement: Please note that your application may be denied for failure to submit the documentation required above. Item IX of the application called for the signature of the owner or administrator, and that the application be notarized. The following affirmation was required: The undersigned hereby swears (or affirms) that the statements in this application, and its attachments, are true and correct and that to the best of my knowledge and belief all persons in ownership or employment are of good moral character, and that the ownership possesses sufficient funds to operate this facility in a satisfactory manner. Apart from not responding directly to item VIIA, the application submitted by Petitioner (Respondent's Exhibit 7) was not signed and notarized; did not include a "Statement of Operations"; did not include a "Statement of Assets & Liabilities"; did not include a "Zoning Certificate" verified by the local government authority; and did not include "Proof of Business Liability Insurance." Moreover, Petitioner did not sign the application form for the "Florida Protective Services System Background Check" she submitted, and the fee she submitted ($138.00) was, as discussed infra, not adequate. By letter of September 16, 1997, the Agency advised Petitioner that it had received her application and the fee she had tendered. The letter further advised Petitioner that: The application submitted was found to be incomplete. The information or documentation requested below must be received back in this office by 10/07/97 or your application will be denied. APPLICATION The application form you submitted has not been in use by this Agency in over six years. This form is not acceptable. A current application form is enclosed. Please complete the current application form and have it notarized. FEE The fee submitted is incorrect because you submitted an outdated application package. The correct fee cannot be determined until you submit a current application form. The current application fee is $253 plus $33 for each private pay bed. If a bed is to be designated for a recipient of OSS services, there is no per bed fee. Please refigure the fee due and submit the remaining balance due. INSURANCE You must submit proof of current business liability insurance coverage for the operation of the Assisted Living Facility. A copy of a certificate of insurance form or a copy of the policy declarations page that includes the facility name, street address, type of facility, type of insurance issued, and the beginning and ending effective dates of coverage. Binders are not acceptable. (Please do not send the entire policy.) Since you are unsure of the effective date of the license, you may submit proof that insurance coverage will begin at a future date. However, no license will be issued until proof of insurance has been provided. FIRE SAFETY Please contact the local fire marshal's office that has jurisdiction over the physical location of the facility. A satisfactory fire safety inspection must be completed before you can be licensed. Please submit a copy of the inspection report as proof the inspection has been completed. The report submitted must indicate that any cited deficiencies have been corrected or that you are approved for ALF licensure. SANITATION INSPECTION REPORT Please submit a copy of the sanitation inspection report completed by your county public health unit environmental services office. The report submitted must indicate that the inspection report was satisfactory (any cited deficiencies have been corrected). ZONING You must contact the Department of Children and Family Services, Community Residential Home Coordinator, Ellison Shapiro, (305) 377- 7511, to obtain Form 1786 if the ALF will be in a single family or multiple family zoned area. The white copy of this form should be sent to the agency. Verification of zoning approval must be provided from the city or county zoning office having jurisdiction where the facility is located. (This would be the zoning office, not Ellison Shapiro's office.) Zoning authorities must complete the Assisted Living Facility Form 3180-1007, or provide a letter on their letterhead stationery showing the name and address of the facility and that it is approved for use as an ALF. If the local zoning office will not complete the form, please submit proof that the zoning office has had the opportunity to approve or deny your request. (A dated, signed, handwritten note from the zoning authority and a business card stapled to the form would be acceptable.) HIV TRAINING Please complete and submit the enclosed HIV Education Confirmation form. This form is used to verify that all employees have been trained or will be trained in the required HIV education material. ASSETS AND LIABILITIES STATEMENT Please complete the enclosed assets and liabilities statement or provide a current balance sheet. Directions are on the reverse side of the form. You may desire to seek the assistance of a bookkeeper or an accountant in completing this form. The Agency must be able to verify that you have the financial ability to operate an ALF before your application can be approved. The form must be consistent with the application and the statement of operation form. STATEMENT OF OPERATION Please complete the enclosed statement of operation form. Directions are on the reverse side of the form. This form is a projection of anticipated expenses for the first year of operation. Directions for completing the form are on the reverse side of the form. Please consider seeking professional help, such as a bookkeeper or an accountant in completing the form. The information on this form must be consistent with the application submitted and the assets and liabilities statement. WARRANTY DEED/LEASE AGREEMENT You must provide proof that the applicant has the legal right to occupy the premises. Please submit a copy of the recorded warranty deed or a lease agreement in the applicant's name. If the corporation does not own the property, a lease agreement should be submitted between the property owner and the corporation. FLOOR PLAN Submit a floor plan of the facility indicating those rooms and areas that are to be licensed as part of the ALF. Each room should be labeled indicating the use of the room (example: bedroom, living room, bathroom, kitchen). The plan should be drawn on 8 1/2" X 11" paper. A simple hand drawn plan is acceptable. Architectural drawings are too large to fit into the Agency's files and should not be submitted to meet this requirement. BACKGROUND SCREENING Florida Abuse Hotline Information System Background Form AHCA 3110-0003 must be completed by each ALF owner with 10 percent or more interest, the administrator, general partner, each limited partner, and corporate officers (president, vice-president, secretary, and treasurer). The fee for background screening is included in the license fee. Please complete and sign the form. Petitioner did not respond to the Agency's letter of September 16, 1997. Consequently, by letter of October 16, 1997, the Agency advised Petitioner as follows: Your application for an initial license to operate the above Assisted Living Facility (ALF) is denied. It has been determined by the Agency for Health Care Administration that your application does not meet nor comply with the standards as an ALF pursuant to section 400.414, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.). The specific basis for this determination is: Submission of a fraudulent statement on the notarized application form. The application form asks if you have been arrested for a crime involving injury to persons. You wrote a comment stating "no injury". The background screening results from the Florida Department of Law Enforcement revealed that you have been arrested and convicted of aggravated assault and were received in the Florida Department of Corrections on 03/12/92 and discharged on 11/03/95. Submission of a fraudulent statement on the notarized application form is grounds for denial of this application, section 400.414(2)(i), F.S. An individual who is convicted of a crime involving injury to persons is considered not to be of suitable character to provide continuing adequate care to residents, section 400.414(2)(b), F.S. Failure to provide a complete application package. In a letter dated 09/16/97 you were informed that the application package was incomplete and that additional documentation must be provided on or before 10/07/97 or the application would be denied. You did not provide the requested documentation. The Agency is unable to verify that the applicant can provide adequate care to residents without a complete application package being on file, section 400.411(1), F.S. The letter further advised Petitioner of her right to request a formal administrative hearing to challenge the Agency's decision to deny her application. By letter of October 21, 1997, Petitioner responded to the Agency's letter of denial, and requested a formal hearing. With regard to the Agency's charge that she had submitted a fraudulent statement by stating "No Injury" in response to item VIIA, Petitioner stated her response was accurate because "I stated that I was convicted [and] wrote in the words 'no injuries' because it was worded as if with injury only." In response to the claim that her "conviction of a crime involving injury to others" rendered her of unsuitable character to qualify for licensure, Petitioner apparently disputed the Agency's contention that the crime involved injury to others, or that she was otherwise disqualified. She did not, however, dispute her conviction of a crime, which resulted in a sentence of imprisonment for a term of three years. Finally, with regard to the Agency's claim that she had failed to submit a complete application package, Petitioner responded, "I have no idea nor was I told of any documents missing out of package - please provide copy of document request and whatever documents are needed." Petitioner's criminal conviction Pertinent to Petitioner's conviction of a criminal offense, the proof demonstrates that on or about September 17, 1990, an Information was filed in the Circuit Court, Dade County, Florida, under Case No. 90-34662, which charged that Petitioner did, on August 27, 1990: . . . unlawfully and feloniously commit an aggravated assault upon OFFICER GARCIA, a Law Enforcement Officer during the course of or in the scope of said victim's duty and/or engaged in the lawful performance of his or her duty, by intentionally threatening by word or act to do violence to said victim, coupled with an apparent ability to do so, by point a SHOTGUN at said victim and threatened to kill him with a DEADLY WEAPON, to wit: A SHOTGUN, in violation of 784.021 and 784.07 and 775.0823 and 775.087 Florida Statutes. Based on the facts alleged, the Information charged Petitioner with three counts or violations of law, as follows: AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER 784.021 & 784.07 & 775.0823 Fel. IMPROPER EXHIBITION OF A DANGEROUS WEAPON RESISTING OFFICER WITHOUT VIOLENCE TO HIS PERSON On or about February 27, 1992, Petitioner was tried and found guilty of Count I, Aggravated Assault on a Law Enforcement Officer with a Deadly Weapon (a shotgun), a second degree felony proscribed by Sections 784.021, 784.07, 775.0823, and 775.087, Florida Statutes. As a result, Petitioner was sentenced to a term of three years and committed to the custody of the Department of Corrections until her discharge on November 3, 1995, upon expiration of her sentence. Further findings regarding Petitioner's failure to file a complete application At hearing, Petitioner did not dispute her application was incomplete or that the Agency, by letter of September 16, 1997, had requested additional information and documentation. Rather, in an apparent effort to avoid the consequences of an incomplete application, Petitioner averred she did not receive the Agency's letter of September 16, 1997. If true, Petitioner's plea does not excuse her failure to file a complete application or foreclose the Agency from relying on the incompleteness of the application as a basis for denial. Rather, what is dispositive is that, within 30 days of its receipt of the application, the Agency provided Petitioner with written notice by mail, at her address of record, of the errors or omissions in her application. The timely notice to Petitioner, which was not returned by the United States Postal Service, and not the actual receipt of the letter by Petitioner, preserves the Agency's right to deny the application as incomplete. Subsections 120.60(1) and (3), Florida Statutes. Notably, notwithstanding the de novo nature of these proceedings, Petitioner had not, as of the date of hearing, corrected the omissions in her application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's application for a license to operate an Assisted Living Facility. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
The Issue The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida Administrative Code Rule 6B-1.006, as alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the field of mathematics, and has been issued Florida Educator’s Certificate No. 130749. This certificate is valid through June 30, 2011. At all times pertinent hereto, Respondent was employed by the Duval County School Board as a sixth-grade mathematics teacher at Twin Lakes Academy Middle School in the Duval County School District. Respondent has been a teacher for over 40 years and has taught mathematics at Twin Lakes Academy Middle School for six years. On March 7, 2008, Respondent signed an “FCAT Administration and Security Agreement.” By signing the security agreement, Respondent acknowledged that he had read the 2008 FCAT SSS Reading, Mathematics, and Science Test Administration Manual, and that he would administer the FCAT exam in accordance to procedures stipulated in the manual. Page 30 of the manual stated in bold print that Respondent “may not . . . discuss test items or answers with students, even after all test materials have been returned.” By signing the FCAT Administration and Security Agreement, Respondent promised to avoid the following prohibited activities: Reading the passages, test items, or performance tasks; Revealing the passages, test items, or performance tasks; Copying the passages, test items, or performance tasks; Explaining or reading test items, or passages for students; Changing or otherwise interfering with students responses to test items; Causing achievement of schools to be inaccurately measured or reported; Copying or reading student responses. By signing the security agreement, Respondent agreed to abide by Florida Administrative Code Rule 6A-10.042, and Section 1008.24, Florida Statutes, and acknowledged in part: The security of all test materials must be maintained before, during and after the test administration... * * * I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported. In March 2008, after signing the security agreement, Respondent administered the FCAT to his sixth-grade mathematics class. The day after administering the FCAT, Respondent asked the students in each of his five classes to write down questions they could remember from the FCAT. The testimony varied as to whether the requested information was limited to questions they did not understand, a single question, or simply questions and answers. However, it is clear that the requested information stemmed from the FCAT administration the previous day. Respondent collected the students’ written responses immediately after, with the intention of reviewing the students’ responses at a later date. There is no competent, persuasive evidence that Respondent intended to share the questions with anyone. After collecting the students’ written responses, Respondent placed them in a folder and then placed the folder in his personal briefcase to be taken home and locked in his private safe. Shortly thereafter, the school principal, Mr. Donald Nelson, received an email from a parent who is also a teacher at Twin Lakes Elementary School, stating that a security violation may have occurred with respect to the FCAT. Mr. Nelson immediately called Professional Practices and questioned the Respondent about the incident. In addition, he retrieved the folder with the students’ questions from Respondent. An investigation was conducted by Mr. Leroy Starling, an investigator for the Duval County School District, Mr. Nelson, and Mr. John Williams, the Director of Professional Standards for the school district. Randomly selected students were questioned individually, and students’ written responses as well as two letters written by the Respondent to Mr. Nelson were reviewed. As a result of the investigation, on April 4, 2008, Respondent was issued a letter of reprimand and suspended for ten days without pay. Respondent continued to teach his sixth-grade mathematic class during the ten days that he was suspended, despite the fact that he was not being paid to do so. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for the Florida Department of Education, testified that the FCAT is used as part of the accountability system for the state. The results from the FCAT results are used to determine if schools have made an adequate yearly progress, to assign school grades and to measure each student’s level of achievement. Ms. Ash further testified that due to the three-year process in developing test questions, selected questions are frequently re-used on the FCAT. As a result, pursuant to the FCAT security agreement, teachers are warned not to “check through books and return them to students after they have been collected or discuss test items or answers with students even after all test materials have been returned and testing has been completed because some items may be used on future tests.” There is no evidence presented that student achievement was inaccurately reported or misrepresented as a result of this incident. There is also no evidence that any of the questions on the FCAT were discarded or that any test scores were invalidated as a result of the incident. Respondent has received consistent excellent teaching reviews and has never been reprimanded before this incident. There is no evidence that Respondent acted inappropriately in any manner during the actual administration of the FCAT.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of March, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2010.
