The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E 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 Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner established by clear and convincing evidence that Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2012)1/, and Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a), as alleged in the Administrative Complaint; and if so, what penalty shall be imposed?
Findings Of Fact Ms. Gonzalez holds Florida Educator’s Certificate 910377, covering the areas of Elementary Education and English for Speakers of Other Languages, which is valid through June 30, 2019. At all times relevant to the allegations in the Administrative Complaint, Ms. Gonzalez was employed as a third- grade teacher at the Poinciana Academy of Fine Arts in the Osceola County School District. The Florida Comprehensive Assessment Test (FCAT) is a statewide assessment test for evaluating student progress in the Next Generation Sunshine State Standards. Consequently, the standardized test is highly structured, and teachers who proctor the test are given specific instructions on how to administer the FCAT. The FCAT Test Administration Manual, section titled Administration and Security Agreement (Security Agreement), found on pages 315 through 317, specifically provides, in part, that: All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. Further, the Security Agreement lists as prohibited activities “[c]opying the passages or test items,” and “[c]ausing achievement of schools to be inaccurately measured or reported.” Finally, the Security Agreement includes an acknowledgement that: I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. On April 3, 2012, Ms. Gonzales signed the Security Agreement acknowledging her understanding of the test administration procedures. Also, on April 3, 2012, Ms. Gonzalez signed a document titled Test Administrator Prohibited Activities Agreement stating her understanding on the procedures for administering the FCAT. In particular, Ms. Gonzalez acknowledged that before testing she could not “[r]ead test items,” and that after testing she could not “[d]iscuss the content of the test with students.” On the week of April 18, 2012, the FCAT was being administered in the Osceola School District. During the April 18, 2012, testing date, a portion of the FCAT test assessed the students’ math skills. Ms. Gonzalez and Claudia Streeter (Ms. Streeter) were teachers administering the FCAT exams in their respective classrooms. These classrooms are connected to each other through a common area that is shared with another teacher, Amy Spence (Ms. Spence). At the time, Ms. Streeter was a reading teacher with Poinciana Academy of Fine Arts. After the morning testing session, Ms. Gonzalez and Ms. Streeter were eating lunch together in the common area. While in the common area, Ms. Spence entered the area to get her lunch. Ms. Spence overheard a comment between Ms. Gonzalez and Ms. Streeter that raised a question for her concerning whether or not the FCAT testing protocol was being followed. Specifically, Ms. Spence claimed that she heard Ms. Gonzalez state that she had looked ahead at the next day’s testing materials, a statement that both Ms. Gonzalez and Ms. Streeter deny having been made. The undersigned finds Ms. Streeter’s explanation that she was reading the FCAT test administrator’s manual for the next day, Session 2, credible, and that neither she nor Ms. Gonzalez stated that they had reviewed the next day’s FCAT testing questions. Ms. Spence’s testimony that she heard Ms. Gonzalez state that she had reviewed the next day’s FCAT questions is not credited based on her prior inconsistent statements concerning what Ms. Gonzalez stated, as pointed out by the cross- examination. In any event, Ms. Spence shared with another teacher that Ms. Gonzalez had indicated that she had previewed the FCAT questions for the next testing session. The teacher informed Ms. Spence that the comment should be reported to the school’s administration. Ms. Spence shared what she believed that she heard with David Noyes (Mr. Noyes), an assistant school principal, later that afternoon. After speaking with Ms. Spence, Mr. Noyes contacted Sheri Turchi, the school’s Principal (Principal Turchi), about the alleged comments. In turn, Principal Turchi directed that the information be provided to the School District’s Testing Coordinator, Angela Marino. Based on the statements allegedly made by Ms. Gonzalez and Ms. Streeter, Ms. Marino directed that neither Ms. Gonzalez nor Ms. Streeter be allowed to proctor the FCAT exam for the next day. The next morning on April 19, 2012, before school started, Ms. Gonzalez and Ms. Streeter arrived at school. Ms. Streeter found Ms. Spence crying in her classroom and asked what was wrong. Based on Ms. Spence’s answer, Ms. Streeter believed that there was a “misunderstanding” about the FCAT, and that she and Ms. Gonzalez might be in trouble. Ms. Streeter and Ms. Gonzalez went to the school office to clear up what they thought was a misunderstanding. On arrival at the school office, Ms. Gonzalez and Ms. Streeter were separated and not allowed to return to their classrooms. School officials provided Ms. Gonzalez and Ms. Streeter with notice that they were being investigated. School officials assigned two certified teachers with paraprofessionals to replace Ms. Gonzalez and Ms. Streeter in their classrooms for the FCAT testing that occurred on April 19, 2012. After the completion of the FCAT testing that second day, Ms. Marino along with Principal Turchi interviewed five or six students randomly selected from Ms. Gonzalez’s and Ms. Streeter’s classes about the FCAT testing. During the student interviews, Ms. Marino and Principal Turchi learned that Ms. Gonzalez and Ms. Streeter had combined their classes after the first day of testing. Further, some students stated that Ms. Gonzalez had conducted a short math study session in Ms. Streeter’s classroom. According to Principal Turchi, this study session or “drilling” of students between the two FCAT testing dates should not have occurred, and the classrooms should not have been combined without the administration’s approval. Ms. Gonzalez and Ms. Streeter do not dispute that they had combined their classes after the FCAT testing on the first day. Further, Ms. Gonzalez testified that she did answer some students’ math questions, but that she only answered a couple of questions asked by a few students, and that the entire exchange lasted between three and five minutes. Following the exchange, Ms. Gonzalez testified that she “crumpled” up the paper and threw it away. The undersigned finds Ms. Gonzalez’s description of her answering some students’ questions credible. Following the student interviews, school officials decided that substitute teachers would be needed to finish teaching Ms. Gonzalez’s and Ms. Streeter’s classes. That afternoon, on April 19, 2012, after finishing the FCAT testing and classes, Mr. Noyes and Principal Turchi went to Ms. Gonzalez’s and Ms. Streeter’s classrooms to retrieve lesson plans for the substitute teachers. As Mr. Noyes looked for Ms. Streeter’s lesson plans, he found two pieces of paper on the ELMO, a device used for projecting an image onto a screen. The two pieces of paper contained handwritten math problems. Mr. Noyes and Principal Turchi recognized that the pieces of paper contained “line graph” problems, which was consistent with statements made by students concerning the math review conducted by Ms. Gonzalez. Principal Turchi provided the papers to the School District, which then forwarded the documents to the State Department of Education. A comparison of the math problems written on the two pieces of paper with math problems contained in the FCAT testing materials for the second session conducted on April 19, 2012, are, in some instances, extraordinarily similar. For example, one of the problems found on the paper in Ms. Streeter’s class concerning the number of hours spent in traveling between two cities, using two different clock-faces, used the same exact times. Another example of the problems being exactly the same is seen in a graph comparing the number of cans removed from two six-packs. These two examples, out of the 20 math problems found on the two pieces of paper, appear to be live FCAT questions. Some of the problems found on the paper, however, are different and do not appear to be copied from the FCAT. The undersigned finds the testimony of students K.A. and J.V. that the two pieces of paper found in the classroom by Mr. Noyes as being the same paper used in the review conducted by Ms. Gonzalez is not persuasive. The students’ identification of the two pieces of paper does not meet the clear and convincing standard for two reasons. First, the undersigned did not find it credible that the students could positively identify the math problems found on the paper as being the same problems from the study review conducted by Ms. Gonzalez nearly two and a half years after the event. Second, the students’ written statements also suffer credibility problems. For example, K.A.’s written statement dated May 22, 2012, again over one month after the event at issue, states in pertinent part, verbatim: I was in Ms. Streeter class in Reading Ms. Streeter in math Ms. Gonzalez. Ms. Streeter gave me the FCat After sesion 1 they took the FCat Review some questions. it help me with Sesion 2 on paper it had 5x table. Ms Gonzalez review line plot. I saw under the smart board. Below K.A.’s written statement is another handwritten note by Ms. Sheree Fletcher which states: Sheree Fletcher showed K.A. the paper found in Ms. Streeter’s class – She recognized it as the review given by Ms. Gonzalez. SMF This handwritten note consists of Ms. Fletcher’s hearsay statements about statements purportedly made by K.A., within the document. The undersigned finds neither the students’ testimony nor the offered written statements as providing clear and convincing proof that the paper found by Mr. Noyes was written by Ms. Gonzalez. Both parties presented expert testimony in an attempt to address whether or not Ms. Gonzalez was the author of the paper found in Ms. Streeter’s classroom. The testimony showed that neither of the two experts viewed the original documents in formulating their opinions; rather, both witnesses were provided facsimile copies of the documents upon which to base their opinions. Ms. E’Lyn Bryan, Petitioner’s expert, offered the opinion that: After a thorough examination, it is the opinion of this examiner that based on the photo copies being a true representation of the original documents that the handwriting appears to be that of Carol Gonzalez. In contrast, Mr. Bruce Dekraker, Respondent’s expert, concluded that: With the material available for examination, and contingent upon all copies being true representations of the originals they represent, it has been determined that the absence of individual identifiable characteristics in the writing in question, precludes an identification or elimination with respect to Carol Gonzalez, (K1). The undersigned finds Mr. Dekraker’s explanation credible that without viewing the original documents for comparisons that it would be extremely difficult to make a definitive handwriting analysis. As Mr. Dekraker explained, handwriting analysis requires a comparison of the formation of the strokes and pressure applied to the paper. Moreover, Mr. Dekraker credibly explained that facsimile copies often distorted the letters and numbers, and that in the instant case there were too few numbers and letters to make a definitive analysis. This conclusion is reflected in Ms. Bryan’s own conclusion which conditions her own opinion on the photocopies being a “true representation” and states that the handwriting “appears to be that of Carol Gonzalez.” Based on the expert witnesses’ reports and testimonies, the undersigned finds that the handwriting evidence was inconclusive as to whether or not Ms. Gonzalez authored the two pieces of paper found in Ms. Streeter’s classroom. Petitioner failed to prove by clear and convincing evidence that Ms. Gonzalez authored the paper found in Ms. Streeter’s classroom by Mr. Noyes. Finally, Mr. Noyes, who is currently a principal at Kissimmee Elementary, credibly testified that Ms. Gonzalez is a teacher at his school, and that he considered her an asset to the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent not guilty of the charges in the Administrative Complaint. DONE AND ENTERED this 24th day of March, 2015, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2015.
The Issue Whether the Respondent, Harriet Parets, should be suspended from her employment for a period of 30 days based upon a violation of testing protocols in administering the Florida Comprehensive Assessment Test (FCAT).
Findings Of Fact The Petitioner, is responsible for the administration and operation of all public schools within the Broward County School District. As such, its authority covers personnel and employment including the discipline of its teachers. At all times material to the allegations of this case, the Respondent, Harriet Parets, was employed as an elementary school teacher in the Broward County School District. The Respondent holds Florida Educator's Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. Prior to the incidents complained of in this cause, the Respondent taught in the Broward County School District without discipline for six years. The Respondent was in her seventh year with the system when the allegations of this case arose. The Respondent had administered the FCAT on five prior occasions. During the 2002 school year the Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11-13, 2003. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. Teachers at McNab were advised of the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. In fact, as McNab had received an "A" rating in the past (following good FCAT results), the school had received special funding tied to that performance. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. In this case, the proctor and several students verified comments from the Respondent that deviated from the scripted instructions. Contrary to the scripted instructions the Respondent looked at the students' test booklets, told more than one student to re-exam their work for errors, and pointed out a wrong answer. The Respondent announced to the class as a whole that she was "seeing a lot of wrong answers." The Respondent was not authorized to make comments during the administration of the test. More important the Respondent was not permitted to assist by any means the students who were taking the FCAT. The Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). The Respondent knew or should have known that she had been directed to watch the video. The Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher's testing manual. The issues of the Respondent's comments to the class and the level of assistance she had provided to students came to light when a student told her mother of the Respondent's conduct. The mother then contacted a school administrator to make the alleged improprieties known. After determining that the Respondent had assisted students in her class, administrators invalidated the test results from the Respondent's class. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an "A" performing school under the state guidelines. Had the results from the Respondent's class been included, the school might have qualified and received recognition as it had in the past. Following the investigation of the case, the school district superintendent recommended that the Respondent be terminated from her employment. After hearing comments on the matter, the Petitioner took the action at issue herein, the suspension without pay for 30 days. The Respondent timely challenged that proposed action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending the Respondent without pay for a period of 30 days. Further, before being permitted to administer the FCAT again, the Respondent should be required to complete a training course in the administration of the exam, including all testing protocols. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2003. COPIES FURNISHED: Mark J. Berkowitz, Esquire Mark J. Berkowitz, P.A. 524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301 Mark A. Emanuele, Esquire Panza, Maurer, Maynard & Neel, P.A. 3600 North Federal Highway Bank of America Building, Third Floor Fort Lauderdale, Florida 33308 Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to fill the position of Exceptional Student Education (ESE) Coordinator.
Findings Of Fact Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida. Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator. As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504. The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations. The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman. Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision. Ms. Jeselnik has worked for the district for approximately 13 years. After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually. When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher. Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area. A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998. Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision. When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist. Respondent performed an "annual evaluation" of Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist. There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations. On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students. The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel. Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity. On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not complete a school psychology internship because one was not required for certification in Florida at that time. Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner, Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students. On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials. After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary. On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998. On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request. Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services. The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile. During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement. Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999. Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department. On or about August 10, 1998, Respondent gave Mr. Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree. Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule. In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter, Ms. Farrior was responsible for all testing and diagnostic services in the district. Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings. On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist. Jim McCall has been the district's Finance Officer for 15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts. Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice. When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill. On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member. Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members. On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses. On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999. On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states: On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original) Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones. On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC. On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract. Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team. On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School. On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised. On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part: During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter. In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent. On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status. By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre- audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator. Sometime during the December 1998 school holidays, Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr. Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity. During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist. By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible." In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc. On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements. As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner. Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district. DHC sent the district the following four invoices: (a) an invoice dated November 30, 1998, in the amount of $440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998; (c) an invoice dated November 3, 1998, in the amount of $8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998. Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998. Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff. At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00. During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided. Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies. Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs. In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and (c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts. During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES. During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for certification as a school psychologist. This information was incorrect. Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course. In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam. Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only to teach psychology to administer intelligence tests as an "out- of-field" school psychologist. During a January 19, 1999, school board meeting, Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and re-evaluations of ESE students formerly tested by Ms. Farrior. The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder. Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re- evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students. The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department. By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual. Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA: Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and "addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis. Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent. Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to. Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary. In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance. All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests. By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct. By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified school psychologist for administering tests and assessing placement for ESE students. After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request. Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis. The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count. In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure. The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice. The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence. By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members. By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints. By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments. On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program. By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator. On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000. On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the office of Samantha Nelson, an ESE Resource Specialist. Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking. Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent. The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening. Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future. Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance. At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for $200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations. At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00. By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint. Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter. By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher. On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services. DHC sent the district the following invoices: (a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of $3,620.35; (b) invoice dated December 28, 1998, in the amount of $2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77. The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of $10,167.72. She then sent the invoices to Mr. McCall's office for payment. Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts. By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not intervene in personnel matters, which are within the purview of local officials. The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year. In a memorandum dated March 22, 1999, DOE advised Ms. Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test. At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work. In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior. On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district. The district provides ESE services to NAFI's clients. Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives. At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement. In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts. In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified school psychologist or an intern in an approved school psychology internship program. Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position. At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist. The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation. Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage. In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent. On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of Child Find Specialist in a position that Petitioner had not approved. In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999. On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students. At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months (10+2) under a salary schedule, one to be filled immediately and one to be filled later. At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service. At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent. Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract; (d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f) Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired. Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and (d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records. Mr. Barnhill voted to reject Respondent's nomination. He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion. At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time. On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1999.
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.
