The Issue The issues to be determined are whether Respondent, Dennis Michael Hester (Respondent or Mr. Hester), violated section 1012.795(1)(g) and (j), Florida Statutes (2011), and Florida Administrative Code Rule 6A-10.081(3)(a), (4)(b), (4)(c), (5)(a), (5)(d), and/or (5)(f), as alleged in the Administrative Complaint, with respect to his role as a Professional Development Facilitator (PDF) and English for Speakers of Other Languages (ESOL) trainer, and, if so, what penalty should be imposed.
Findings Of Fact Dennis Hester was employed by the School District as a teacher from 1994 until his termination in 2015. He was covered by the Collective Bargaining Agreement between the Duval Teachers United and the School Board for the period from 2008-2011. At the time of the events giving rise to both this case and the School Board case, Mr. Hester was assigned to Fletcher High School in Duval County as an instructional coach and a PDF. Although no direct evidence was presented on this point, Respondent admits in his Proposed Recommended Order that he holds a Florida Educator’s Certificate. Respondent’s substantial interests are affected by this proceeding. ESOL Certification Requirements The allegations against Respondent include allegations of unprofessional behavior toward colleagues and an allegation that Respondent repeatedly gave District employees credit for ESOL courses that they did not attend and/or for which they performed no work. While both claims, if proven, would warrant discipline, the more serious claim in both cases is the allegation that Respondent gave credit for ESOL courses which employees did not attend and performed no work. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee the implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association. The text of the consent decree and settlement agreement is found at www.fldoe.org/aala/lulac.asp. Section IV of the settlement agreement requires teachers of “English language learners” or “ELL Students”3/ to obtain an ESOL endorsement and complete between 60 and 300 hours4/ of in-service training in each of the five subject matter areas: methods of teaching English to speakers of other languages, ESOL curriculum and materials development, c) cross-cultural communication and understanding, d) applied linguistics, and e) testing and evaluation of ESOL. See Fla. Admin. Code R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. The requirement is triggered once an ELL student is assigned to a teacher’s class. Karen Patterson, the School Board’s ESOL specialist at the time period relevant to this proceeding, testified that she knew of one teacher who taught for nearly 40 years before being flagged as out-of-field for having an ELL student in her class and no ESOL course credits on her record. The School Board policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged as out-of-field for ESOL each school year and must come into compliance with ESOL requirements by June 30 of the school year in which they were flagged. A teacher must obtain between 60 and 300 in-service credits, depending on the subject matter the teacher teaches. Reading and language arts teachers are required to complete 300 credits, while math and science teachers need only 60 credits. The Department of Education allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificate. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Section 1003.56(3)(f) also requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan identifies the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “add-on program,” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan provides in pertinent part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-Service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify, and employ appropriate instructional materials for ELLS at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course[5/] The District Plan also sets forth the following “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL endorsement[6/] Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state- approved ESOL in-services courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required course work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in-service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The “Management” section of the District Plan states: Attendance Requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the director of professional development for the School District. She was responsible for all in-service programs in the School District, including the ESOL program. Karen Patterson, the ESOL specialist, worked directly beneath Ms. Wims in the hierarchy. There were 20 to 35 ESOL facilitators, such as Mr. Hester, who delivered the in-service training for ESOL development.7/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers had not realized that they were out-of-field for ESOL until near the deadline, and they would approach Ms. Patterson in a panic. Ms. Patterson also testified that the professional development staff did whatever they legitimately could to ensure that teachers flagged for ESOL obtained the credits that they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement each year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for them. As the end of the school year approached and the desperate push for ESOL classes began, the professional development staff would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the “domains” identified in paragraph four. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles, and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the entire class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to 12 weeks, but that the hybrid class was shortened to six weeks. Ms. Patterson also testified that other “emergency” courses were shortened to six weeks. When asked what “emergency” meant, she responded, “[t]hat means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8) provides for a “cohesive competency- based professional preparation alternative certification program” through which persons with bachelor’s degrees in majors other than education may become certified teachers. This program is popularly referenced as “alternative education,” or “alt. cert.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession through the alternative certification program would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way to obtain ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, including a certification that the teacher had been out of the country for five or more days and the completion of an independent study form.8/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts also could seek permission to complete independent studies by performing the course work on their own time. When Ms. Patterson was a PDF teaching ESOL, she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the ESOL trainers. Ms. Patterson also testified that when she conducted an independent study for a teacher, she would record the teacher’s participation in the independent study by marking the teacher present in an ESOL course being taught at the time, either by her or by another trainer. This method was used in order to be able to track the credits, not to indicate that the teacher was actually in that particular class. She testified credibly that this method was in place when she started training and that she continued to use it when she became the ESOL specialist. However, on those class rosters identified at hearing by Ms. Patterson as being records of independent studies that she conducted, the students were not actually added to an already existing attendance roster for the class. Instead, they were added by use of an additional form that identified the trainer for the course at the top, as well as what component was being taught, and that was signed by Ms. Patterson at the bottom. Teachers also could obtain ESOL credit for ESOL courses they took in college. Credit was not automatic, however. To receive credit this way, the teacher had to submit a written request and a copy of his or her transcript. A similar credit was available to teachers who received in-service ESOL credit during employment with another Florida school district. Finally, teachers also could obtain ESOL certification by passing an examination. At hearing, Mr. Hester contended that there was an alternative method for receiving ESOL credits at the discretion of the PDF, by the teacher in question demonstrating his or her ESOL knowledge and skills. The School Board denied that there was such an option, and the District Plan makes no allowance for such an alternative method. Mr. Hester’s Qualifications and Experience After four years as a classroom teacher in Duval County, Mr. Hester became a PDF in 1998, working with the District’s Professional Development Cadre (Cadre), which mentored novice and “needs assistance” teachers, and implemented the School District’s master plan for in-service education. Until 2002, Mr. Hester continued to teach in the classroom in addition to his PDF duties. During his time in the Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (MINT) program. He trained teachers who majored in education, as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL requirement. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL in the areas of testing and evaluation and cross-cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement, but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As a standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher High School principal Dane Gilbert described the standards coach position as an especially tough one in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college-level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester also was the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. He was paid for ESOL classes through the Shultz Center for Teaching and Leadership, which is part of the School District. Contracts appear to be on a per-class component basis, and performance was approved through Ms. Wims. For those contracts provided, Mr. Hester generally received up to $2,100 per class. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such, he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (PLCs). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher High School were organized according to academic subjects or administrative duties, such as “guidance” or “leadership.” As Fletcher High School’s PDF, Mr. Hester also was involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teacher to document everything happening in the classroom in terms of standards-based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code Rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted them with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester also was assigned to work with low-performing “needs assistance” teachers to improve their performance. In addition, Mr. Hester was the Advanced International Certificate of Education (AICE) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester also was Fletcher High School’s main data analyst with respect to student and teacher performance. ESOL Endorsements The Administrative Complaint charges in part that “[d]uring the 2011/2012 school year, Respondent repeatedly provided English for Speakers of Other Languages (ESOL) endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The testimony related to this allegation involves the ESOL credits awarded to teachers Christine Anderson, Julie Durden, Sherry Murrell, Heather Kopp, Catherine Johnson, Josh Corey, Andrew Davis, Suzanne Harman, and Susan Podzamsky, and former principal Dane Gilbert. With respect to some of the teachers, Mr. Hester claimed that he allowed them to do independent studies because of conflicts that prevented them from attending scheduled ESOL classes. Mr. Hester believed that he had the authority to provide independent studies to teachers who could not attend classes, and marked those students as present in classes he taught, similar to Ms. Patterson’s testimony as to how she kept track of independent studies. Respondent contended that these teachers earned their credits through the use of independent studies within the scope of discretion he believed that he had until January 23, 2013. On that date, he received an e-mail entitled “ESOL Independent Study other than ESOL Foreign Travel.” The e-mail had no text, but included an attachment that stated the following: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resource Administrator/ Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist or Brenda A. Wims. Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist It appears that Mr. Hester is the only recipient of the e-mail, and he understood it as a directive to change how independent studies are handled. Ms. Patterson testified that the e-mail was generated to clarify the policy because some of the trainers may have had a different understanding. She testified that she probably handed the document out at a meeting, as opposed to e-mailing to everyone, but that it was provided to other trainers in addition to Mr. Hester. Mr. Hester testified that he would go to Ms. Patterson for approval of independent study projects, and that Ms. Patterson told him, as well as other trainers, that they were aware of the criteria for independent study established by Ms. Wims: that a teacher must have extraordinary family obligations or school duties that prevented him or her from taking the classes offered by the District. Mr. Hester also testified that Ms. Patterson said she trusted him to make the call on the independent student study project (required for the curriculum), and that teachers must meet the expectations of the course. By contrast, Ms. Patterson testified that Ms. Wims had to approve independent studies and that Ms. Patterson did not have the authority to do so alone. She would relay requests to Ms. Wims and act as a conduit for the trainers, but would not actually approve or deny requests for independent study. She also testified that the criteria listed in the January 23, 2013, e-mail was consistent with the existing policy for independent studies. Her testimony is credited. A comparison of the e-mail to the District Plan reveals that the documents are relatively consistent. The District Plan allows the Director and ESOL Specialist to determine what will happen with a participant “in the event of an extreme emergency or serious illness causing excessive absentees [sic].” The e-mail clarifies what is meant by “extreme emergency or serious illness,” and also clarifies that Ms. Wims must actually approve the independent study. While the District Plan could have been read as allowing Ms. Patterson to act unilaterally, clearly neither Ms. Wims nor Ms. Patterson interpreted “and” in that fashion. Further, nothing in either the District Plan or the e-mail came close to allowing Respondent the freedom to expand the parameters for allowing independent study or to change the scope of the classes for which credit would be given. However, the allegation in the Administrative Complaint does not charge Respondent with providing independent studies that were not authorized. It charges him with awarding credit where work was not performed. Nevertheless, there were clearly incidents where, according to Ms. Patterson, Mr. Hester received approval for and conducted independent studies for teachers with whom he worked. By the same token, there were teachers for whom he granted ESOL credits and required no work at all. Christine Andrews is a teacher at Fletcher High School. During the time related to this case, she taught AP statistics and calculus. Mr. Hester described her as a phenomenal teacher. On March 16, 2012, Ms. Andrews and several other teachers received an e-mail from Respondent requesting they see him regarding their out-of-field status. Ms. Andrews was confused by this e-mail, because she believed that her undergraduate program at the University of North Florida (UNF) included an ESOL component that satisfied the 60-hour requirement for a high school math teacher. She had not, however, taken her college transcripts to the District ESOL office to obtain approval for the ESOL credit. On March 16, 2012, Ms. Andrews sent Respondent an e-mail stating that she had spoken to Natosha Earst-Bailey in the District’s certification department, who had told her that the computer reflected that she had her 60 hours of ESOL credit, and that she should not have been flagged as out-of-field. While Ms. Earst-Bailey suggested to Ms. Andrews that she provide her transcript to Mr. Hester and to Ms. Patterson at the District Professional Development Office, so that the records would be consistent, she did not do so. In May of 2012, Mr. Hester sent both Ms. Patterson and Ms. Earst-Bailey e-mails requesting a review of Ms. Andrews’ credits at UNF for possible ESOL credits. In the e-mail to Ms. Earst-Bailey, Respondent stated, “[a]lso, I attached her points and she has 60 for cross-cultural and has the paperwork for 60 hours earned at UNF.” There is no issue with respect to the credits earned through coursework at UNF. However, the credits for cross- cultural communications are based upon her purported attendance in a cross-cultural ESOL class taught by Mr. Hester commencing on July 11, 2011. Respondent signed the attendance sheet, which reflects that Ms. Andrews was present for all 12 class sessions, as well as the completion report for her ESOL course; however, Ms. Andrews testified that she never attended this class, never performed any work for it, and never completed an independent study in order to obtain ESOL credits. She was unaware that she had been awarded these points for the July 2011 class until she was contacted by School District personnel in connection with the School District investigation concerning Mr. Hester. Respondent initially claimed that he completed an independent study with Ms. Andrews, but admitted that he did not require her to do any work in order to receive the credits. Instead, he stated: MR. HESTER: . . . So with her being as good of a teacher as she is, knowing her PLC work, knowing what’s in her lesson design notebook, observing her and sitting down and talking with her, I was able to determine that she met the competencies of the course she was given. Q: Well, did you also know what was in the course content she took out at UNF? A: Yeah, because I taught it. And the fact that she was at the – the fact that she took that course at UNF, I also took that into consideration in making that determination. Q: Okay. Well, what did you specifically do to make sure that Christine Andrews possessed all the skills and knowledge and abilities to be able to communicate and properly teach any ESOL student she had? A. Again, I looked at her lesson design notebook, which had all of the information and everything in it, also with her PLC work. I’ve been in several of the PLC meetings. I don’t remember if I observed her or not, but – and also in talking with some of the ESOL students and being able to make the determination that, you know, they would be able to say, oh, that she’s communicating with me, these are the strategies we’re using, so on and so forth. In short, Ms. Andrews performed no classwork or dedicated work of any kind to obtain the cross-cultural communication ESOL points that Respondent submitted on her behalf. His belief that he had the authority to award ESOL credits based on a teacher’s competence and the quality of her “phenomenal” teaching directly conflicts with the express requirements in the District Plan for ESOL certification, which requires that a teacher complete all individual projects and assignments; attend all class sessions; and complete all written assignments. Respondent’s stated belief that he had the authority to award points for something that does not meet these requirements is simply not reasonable. Julie Durden is a teacher at Fletcher High School. She began teaching there in 2004, teaching American Sign Language. Although the timing is unclear in the record, at some point within the last few school years, she began teaching English, and was flagged as out-of-field for ESOL. Ms. Durden, like Ms. Andrews, received an e-mail from Mr. Hester concerning her out-of-field status. When she went to see Mr. Hester about it, he told her not to worry; he would take care of it and she would not have to attend class. Ms. Durden’s name is listed on the same class roster as Ms. Andrews, beginning in July 2011 and ending in September 2011. She did not sign up, attend, complete course work, or perform an independent study for this course. Ms. Durden was not aware that she had received credit for this class until approached during the School Board investigation. Ms. Durden was instrumental in bringing a program called “Challenge Day” to Fletcher High School and, ultimately, to the entire District. Challenge Day is a program geared to creating a safe environment for children where they feel loved, safe, and celebrated, and is designed to break down barriers and eliminate cliques and bullying. Preparation for Challenge Day is a work- intensive undertaking. Mr. Hester determined that the work Ms. Durden performed in preparing for Challenge Day, along with her assistance with preplanning training, equated to the expectations of the ESOL cross-cultural course. Mr. Hester had no authority to make this determination, which is totally inconsistent with the requirements delineated in the District Plan. Ms. Durden acknowledged that she performed a lot of work for the Challenge Day program, and that there might be some content overlap. However, she could not see how these activities could substitute for attending an ESOL class, because the Challenge Day activities are not related to teaching strategies for ELL students. Mr. Hester claimed that he discussed the possibility of granting cross-cultural ESOL points for Challenge Day preparations with Ms. Patterson by telephone. However, he could produce no documentation regarding such a conversation, and Ms. Patterson could not recall any such conversation ever taking place. Moreover, she denied having any conversation with Mr. Hester that could be interpreted as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. Ms. Patterson’s testimony is consistent with the parameters of the District Plan she assisted with implementing, and is credited. To the extent that Mr. Hester truly believed that he had the authority to award ESOL credit in this fashion, his belief was unreasonable. Sherry Murrell is a geometry and intensive math teacher at Fletcher High School. She completed all of her ESOL requirements in June of 2005, and was not out-of-field. While she had expressed an interest in being able to “bank” ESOL credits for recertification, she did not sign up for any classes because she had children at home that she had to care for at the time the classes were taught. Mr. Hester asked her to attend one of his classes, but she declined to so because she could not be at two places at one time, and thought nothing more about the issue. Mr. Hester later brought up the subject of the class with her, and she reminded him that she never signed up for the class. Mr. Hester told her not to worry, that he could make it an independent study because “you’ve gone above and beyond . . . you’ve met all the criteria.” She asked him what work she needed to complete, and he told her not to worry about it. Ms. Murrell did not sign up for, attend, or perform any work for any ESOL classes taught by Mr. Hester. However, her name appears on the attendance roster for the cross-cultural ESOL class taught from July through September 2011, and she is listed as being in attendance for all 12 classes. Her name also appears on the attendance roster for the curriculum and materials for the ESOL class beginning January 10, 2012, and is listed as attending 11 out of 12 classes. Approximately a week and a half prior to the School Board investigator coming to the school, Ms. Murrell received an envelope containing completed “course activities checklists” for the curriculum and materials class taught in the Spring of 2012, and for a hybrid class taught during that same period. Both lists were signed by Mr. Hester and dated April 3, 2012. The checklists are the documents an instructor uses to verify completion of the required activities in an ESOL course. Mr. Hester asked Ms. Murrell if she had received the envelope, and she indicated she had, but Ms. Murrell did not really examine the documents until she met with the investigator. She provided the documents to the investigator. Respondent testified that he gave Ms. Murrell credit because she is a phenomenal teacher. As with Ms. Andrews, Respondent did not have the authority to award ESOL credits based on the quality of Ms. Murrell’s teaching when she performed no work for the ESOL courses. Heather Kopp taught at Fletcher High School for two years after her graduation from UNF, transferred to Mandarin High School, and then after two years returned to Fletcher High School. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told that she needed no further ESOL courses. She has her ESOL endorsement. There was evidence presented indicating that Ms. Kopp’s name was on class rosters for ESOL classes taking place in January 2009 and January 2010 taught by Mr. Hester. Mr. Hester claimed that he oversaw an independent study for her because she had to care for her children at night and was unable to take ESOL classes. While the charges against Mr. Hester brought by the School District could be interpreted as including conduct related to Ms. Kopp, the Administrative Complaint in this proceeding limits the allegations regarding ESOL classes to the 2011/2012 year. Therefore, no findings will be made with respect to Ms. Kopp’s participation, or lack thereof, in ESOL classes. Catherine Johnson is an English teacher at Fletcher High School, and started teaching there in 1998. She took a two-year leave of absence and returned in December 2008. In December 2010, she received an out-of-field notice for ESOL. She talked to Mr. Hester about the notice, who asked Ms. Patterson what classes Ms. Johnson would need to complete her ESOL endorsement. Ms. Patterson indicated that Ms. Johnson needed part 2 of the cross-cultural communications course, and Mr. Hester passed along the information to Ms. Johnson. Ms. Johnson asked Respondent what she needed to do to complete the ESOL endorsement. He told her to consider it an independent study. Ms. Johnson stated that Respondent gave her two discs to load onto her computer, which she was unable to do. When she returned the discs to Respondent, he took them and said that he knew her reputation as a classroom teacher, that she was a quality instructor, and that she had fulfilled the requirements of part 2 of the cross-cultural ESOL course. She accepted that Respondent had the authority to make this determination and did not question it. Respondent, on the other hand, claims he never gave Ms. Johnson any discs because the curriculum was available on the District website. He claims that he gave her the course syllabus for cross-cultural ESOL and told her she could use that as documentation if she needed it. Whether Respondent gave Ms. Johnson discs or merely gave her a syllabus is irrelevant. Respondent admits that he did not give her any work to do in order to fulfill the requirements of the course. He claims that he was not “giving” Ms. Johnson anything: that she earned the ESOL credit because of the extra work she did with PLC groups, her status as an AICE, her lesson design notebook, and his observations with her in the classroom and in PLCs. Respondent signed completion reports for a cross- cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson did nothing to earn credit for this class.9/ Josh Corey is a teacher at Fletcher High School. At the time of the hearing, he had been teaching at Fletcher High School for 12 years. He teaches physical education and serves as the school’s head football coach, assistant athletic director, and student activities director. Mr. Corey looked at his records in 2013, and saw that he had credit for 300 ESOL hours. He believed that he had only completed the work for 180 of those hours. He had attended one class and completed two other domains through independent studies under Mr. Hester’s direction. There is no allegation of impropriety regarding the points awarded for these independent studies. Mr. Corey’s name was on attendance sheets for two courses conducted from January to April 2011, offered on different days. Mr. Corey did not attend these classes. Mr. Corey’s wife’s name also appeared on these attendance sheets. Mr. Corey could not have attended these classes because he was coaching softball during this time, and his coaching duties would have conflicted with the class schedule. He could not recall any discussions with Mr. Hester about the classes. Mr. Hester, on the other hand, testified that Mr. Corey wanted ESOL credits for banking purposes, and that his wife needed the ESOL credits, having returned to teaching after having a child. She could not attend because her husband was coaching when the classes were offered, and they had two small children. Mr. Hester testified that he allowed them to do independent studies together, and the work was turned in with both of their names on it. In his view, collaboration between teachers for an independent study was acceptable because it mimics the sharing of activities and experience that goes on in class. The undersigned notes that Mr. Corey only testified in the School Board case, and no additional testimony from him was elicited in the hearing conducted March 29. Therefore, Judge Stevenson was in a better position to assess the credibility of both Mr. Corey and Mr. Hester. Judge Stevenson favored Mr. Hester’s version of the events, and believed that it is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the scenario of having received the work for which he credited both teachers. Given Judge Stevenson’s superior position to assess both witnesses’ credibility, and the higher burden of proof applicable to this proceeding, the undersigned defers to his assessment. Andrew Davis is a physical education teacher and football coach at Fletcher High School. He went through the alternative certification program and finished it during his third year of teaching. Mr. Hester was his instructor for the program. Mr. Davis’s ESOL credits were obtained through independent study under Mr. Hester’s direction. Only one of the independent studies was conducted during the 2011/2012 school year, and therefore within the period of time encompassed by the allegations in the Administrative Complaint. Mr. Davis is listed on a class roster for the curriculum and materials ESOL course given from January 10, 2012, through April 13, 2012. Mr. Davis testified that he did not attend these classes, but performed an independent study with Mr. Hester. He could not recall what tasks he was required to perform other than reading articles that Mr. Hester directed him to read. He stated, “I did whatever Mr. Hester asked me to do regarding these courses.” The evidence is not clear and convincing that, as alleged in the Administrative Complaint, Mr. Hester gave Mr. Davis an endorsement without requiring him to complete the course requirements. Suzanne Harman is a teacher at Fletcher High School. She has been teaching since 1974, and has taught English at Fletcher High School since 1996. She did not teach from 1986 to 1996 because of her husband’s naval career. Ms. Harman was notified on March 25, 2011, that she was out-of-field for ESOL credits and needed to complete her ESOL credits by December 31, 2011. Ms. Harman was unfamiliar with the ESOL requirements because of her absence from the teaching field when the program was first implemented. Although the timing of her actions is unclear, she consulted with Mr. Hester to find out what she needed to do. Ms. Harman testified that Mr. Hester took out a checklist of course artifacts for the cross-cultural ESOL class, and went down the list, identifying things that he had seen her do in her classroom. Mr. Hester denied telling Ms. Harman that she could get credit for the things she had done in her classroom. He said that he agreed to work with her through an independent study, because she was dealing with significant issues in her personal life. He claimed that he did go over the items on the list with her, but only when she came in with her completed portfolio at the end of the 2011 independent study. Ms. Harman’s name appears on the class roll for an ESOL class beginning in July and ending in September 2011. The more plausible explanation with respect to this class is the one given by Mr. Hester. Ms. Harman also was on the out-of-field list issued on March 16, 2012, that Ms. Andrews and Ms. Durden received. Upon receiving this notice, Ms. Harman approached Mr. Hester and asked if it was time for her to take another class from him. Mr. Hester told her that he was teaching a hybrid ESOL class on Tuesday nights. Ms. Harman attended the curriculum and materials portion of this class for seven of the sessions conducted from April 24 to June 5, 2012. However, her ability to complete the assignments for the class was severely impaired by demands on her time due to her mother’s serious illness. As a result, she was unable to turn in her work folder on the final day of class. Mr. Hester told her to get the work to him when she could, but no deadline for doing so is apparent from her testimony. Mr. Hester gave Ms. Harman credit for the class and notified her of the credit via an e-mail dated June 26, 2012. Once she received the e-mail, Ms. Harman made no further effort to finish the materials for the course, and, from her testimony, apparently made no contact with Mr. Hester to ask whether she needed to do so. On January 22, 2013, an anonymous letter accusing Mr. Hester of giving ESOL credits without requiring work for the courses became public. The following day, Mr. Hester sent Ms. Harman an e-mail asking about her unfinished portfolio for the ESOL class. Ms. Harman provided some, but not all, of the work she was supposed to complete, and said it was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester notified Ms. Patterson that Ms. Harman had not completed the agreed-upon work assigned to her in the ESOL class for which she was enrolled from April to June 2012. The e-mail stated: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know I am not allowed to give that amount of time). However, I did not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited to see if she would come to me and complete the necessary work— she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum and Materials. Please have these points removed from her Master Plan Points. Mr. Hester explained that the e-mail Ms. Harman received in June 2012 was a mass e-mail sent to all participants of the class. He claims that he had spoken to Ms. Harman multiple times following the class about her need to provide the materials to complete her class obligations. He met with her again at the beginning of the school year about the outstanding course work. Mr. Hester’s version of the events is more credible than Ms. Harman’s. His rationale for giving credit to teachers, such as Ms. Andrews and Ms. Johnson, was that they were what he considered to be “phenomenal” teachers. By contrast, he characterized Ms. Harman as a “needs assistance” teacher. While she strenuously resisted that label, Ms. Harman acknowledged that she had multiple observations in her classroom; that she had experienced some issues with administration about items that should have been posted in her classroom; and that she was a very messy person. Mr. Hester clearly should have waited until he received all of the documentation that Ms. Harman had completed the requirements of the class before awarding her credit. Regardless of his motives for doing so, he did make an attempt to correct the record in light of her continued failure to provide the work he requested of her. Susan Podzamsky was a special education teacher at Fletcher High School. She received credit for four ESOL courses taught by Respondent. Mr. Hester admitted that Ms. Podzamsky never attended an ESOL class or completed any ESOL course work for an ESOL class taught by him. She is listed on class rosters and Respondent signed completion reports for her for cross- cultural communications and understanding, beginning July 14, 2011; ESOL curriculum and materials development, beginning January 10, 2012; ESOL hybrid, beginning February 2, 2012; and methods of teaching ESOL, beginning May 1, 2012. Mr. Hester considered her to be a good teacher, and admitted giving her ESOL credit not for course work, but for her participation in non- ESOL-related PLCs, preparation of Individualized Education Plans, and reading competencies. Dane Gilbert was the principal at Fletcher High School until his retirement at the end of the 2011/2012 school year. Mr. Gilbert also served, during his career, on the Education Practices Commission for eight years, and as Chair of the Commission his final year of service. Mr. Gilbert is listed on an attendance sheet for an ESOL hybrid class component, testing and evaluation, beginning May 2, 2012, and signed by Respondent. The attendance sheet lists him as having attended six of seven class sessions. Mr. Gilbert did not attend this class and did not work for it. He saw it on his record when he was checking his hours after he retired. Mr. Gilbert acknowledged a discussion with Mr. Hester about an independent study, but did not follow up on it because he was planning to retire and was not planning on renewing his certification. Mr. Hester, on the other hand, claimed that Mr. Gilbert was interested in banking the hours and that the credit was based upon Mr. Gilbert’s involvement in Challenge Day, as well as the principal evaluation binder he prepared, which required a case study. Mr. Gilbert’s version of the events is more credible than Mr. Hester’s. Under either version, however, the facts establish that Mr. Gilbert did not take the ESOL class for which he was given credit, and did not perform an independent study in lieu of attending class. Unprofessional Behavior The Administrative Complaint also alleges that Respondent behaved in an unprofessional manner with respect to Christine Reed, Andrew Davis, and Nicole Conrad. Mr. Hester came to Fletcher High School as a standards coach during Mr. Gilbert’s second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for the high school. Mr. Gilbert believed that Mr. Hester was very good at his job and very good for the high school. Mr. Hester was in a teaching position not an administrative position, but appeared to have a position of authority over the faculty. Mr. Hester’s position included quasi-administrative duties, including work with need-assistance teachers, modeling appropriate teaching methods, assistance with preparation of and access to teachers’ lesson design notebooks, and professional development for teachers. His office was two doors down from the principal’s office, with whom he often worked closely. Right or wrong, Respondent was perceived as being Mr. Gilbert’s “right- hand man.” He was present at and involved in meetings related to building the class schedules. Although he often gave input at those meetings, the ultimate schedule was created by the assistant principal for curriculum and approved by the principal. Mr. Hester had no power or authority other than providing suggestions. While Mr. Hester did not have the authority of an administrator, the evidence clearly indicates that some teachers believed that he had that authority, and Respondent apparently did little to dispel this belief. A significant segment of teachers were irritated by or dissatisfied with Mr. Hester’s actions at Fletcher High School, and at least a part of the teachers’ discomfort was due to Mr. Hester’s sometimes high- handed behavior. Several teachers testified about personal conflicts with Mr. Hester. However, the concerns of only three of those teachers are alleged in the Administrative Complaint and only those three will be addressed in this Recommended Order. At least one teacher testified that it was well known around school that if a teacher got on the “wrong side” of Mr. Hester, he could make the teacher’s life miserable. Mr. Hester believed that at least part of the animosity directed toward him was because of his homosexuality. No credible evidence was presented that would support this assertion. For several years, Mr. Hester organized what was known as FCAT Boot Camp. The event occurred on a Saturday, and he would recruit teachers to help him run it. Christine Reed was chairman of the reading department at Fletcher High School, and has taught in Duval County for 24 years. At some time during either the 2011/2012 or the 2012/2013 school year, Mr. Hester approached Ms. Reed about helping with the FCAT Boot Camp. Ms. Reed had assisted with the program for the two previous years, and did not want to do it again. When she refused, Mr. Hester told her he “really needed help with this,” and “you know that I can get you moved.” Ms. Reed believed that he was threatening to get her teaching assignment within the school changed. She believed that he had this authority because of meetings she had attended as a department head where schedules were discussed. While Mr. Hester had no actual authority to change a teacher’s schedule, he did have input into the process. However, she also testified that “I felt like he could, but I wasn’t concerned because it wasn’t happening at the time. And I had heard him say that to other people or about other people, so I just kind of ignored that.” Given that Ms. Reed was a department head, any belief that Mr. Hester could get her teaching assignment changed is not very reasonable. However, there was a general belief that because of Mr. Hester’s close work with the principal of the school, he could influence Mr. Gilbert’s decision-making. Whether he could make good on his threat is not the point. Any behavior indicating that he would use his position, or any perceptions regarding the reach of his authority to attempt to force people to do what he wanted, is not appropriate. Respondent attempted to impeach Ms. Reed’s credibility by soliciting testimony that she enlisted people to complain about him, and that she benefited from his termination by getting a position as testing coordinator that Mr. Gilbert was considering giving to Mr. Hester. She acknowledged that she did receive the testing coordinator position, and that she once thought of Mr. Hester as her colleague and friend. She testified, however, “in all honesty Dennis, I have great respect for some of the things that you can do educationally, but I steered away from being a close friend of yours when I saw some of the negativity and just the attitude at school and how some people were fearful, and I didn’t want to be associated with that.” Ms. Reed’s testimony was consistent and credible, and is accepted. Testimony was presented regarding the interaction between Mr. Hester and Nicole Conrad. Ms. Conrad was a teacher at Fletcher High School, beginning in 2007. Although testimony was presented regarding three incidents that made Ms. Conrad uncomfortable, none of those alleged incidents occurred during the 2011/2012 or 2012/2013 school years. Ms. Conrad stated that they occurred very early in her tenure at Fletcher High School, in either 2007 or 2008. Given that this alleged conduct is well outside the period of time alleged in the Administrative Complaint, it cannot be considered. In January 2013, an anonymous letter regarding Mr. Hester was sent to the School Board Superintendent Nikolai Vitti, School Board Chairman Fred “Fel” Lee, Human Relations Director Sonia Young, and Fletcher High School Principal Donald Nelson. Mr. Nelson succeeded Mr. Gilbert as principal of Fletcher High School in July of 2012. The letter complained about his unprofessional, bullying behavior toward teachers at Fletcher High School; the failure of administration to address complaints about his behavior; and his award of ESOL credits where no work was done. Mr. Nelson met with Mr. Hester to address the concerns expressed in the letter, and believed at the time that it was the result of a personal conflict between Mr. Hester and the anonymous writer, along the lines of a cat fight. He did nothing else locally, but contacted Sonia Young from human resources (HR), who confirmed her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the professional standards office of the HR department. Mr. Nelson advised Ms. Mickel that he believed the matter was a vendetta by the anonymous author. Eventually the matter was investigated at the School District level, and led to the School Board charges against Mr. Hester and his eventual termination. Mr. Hester was required to meet with an investigator at the District office as part of the investigation. He was anxious to learn who wrote the anonymous letter, and understandably agitated about the allegations against him. In May of 2013, Mr. Hester spoke to Andrew Davis in the parking lot of the high school. Mr. Hester was quite heated about the situation in which he found himself, and told Mr. Davis he believed the anonymous letter was written by Mses. Snell, Reed, and Chalker,10/ that he was going to go after these women, and that he would not feel bad about anyone who got caught in the collateral damage. Mr. Hester stated, “[y]ou never want to piss off a gay man,” and warned Mr. Davis to distance himself from the three woman Mr. Hester was blaming for the anonymous letter.11/ Mr. Davis was a reading teacher whose department head was Ms. Reed. He reported the conversation to her, as well as reporting the conversation to Mr. Nelson, and wrote a statement about the incident on May 23, 2013. Respondent admits making this statement to Mr. Andrews, and regrets it. There was no testimony by Mr. Davis that he felt harassed or threatened personally. However, the statement on its face was one that clearly indicates the intention to harm colleagues professionally, with no regard as to who might be harmed in the process. As noted in the Preliminary Statement, the School Board suspended Respondent’s employment without pay and brought an action against Respondent to terminate his employment. After an evidentiary hearing, Judge Lawrence Stevenson found that Respondent had committed some, but not all of the charges alleged in the Notice of Termination. Judge Stevenson recommended that Respondent’s suspension without pay from July 3, 2013, through the date of the Final Order be upheld, and that a reprimand be issued. The School Board adopted the Findings of Fact and Conclusions of Law, but rejected the recommendation regarding the penalty to be imposed, choosing instead to terminate Respondent’s employment. The School Board stated: It was only after careful deliberation that this Board decided to terminate Respondent’s employment at the outset of these proceedings. Thereafter, as a result of this administrative proceeding, the ALJ’s recommended discipline appears to be based on his impression of what he considers to be fair and his impressions of the specialized skills of Mr. Hester. Regardless of Mr. Hester’s expertise, his actions are inexcusable and potentially damaging to those colleagues who placed their trust in him, potentially damaging to the students these teachers serve. After careful deliberations before entering this Final Order for this administrative proceeding, the Board could not ignore its constitutional obligations and overarching duty to protect students and ensure that teachers are properly trained under the law, . . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), and rule 6B-1.006(4)(b), (5)(a), and (5)(d), as alleged in Counts 1, 2, 4, 6, and 7 of the Administrative Complaint. It is further recommended that Respondent’s license as an educator be revoked, with the right to reapply to be determined by the Commission. DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2016.
The Issue Should Respondent's five-day suspension without pay in December 1996, for her neglect of school policy and procedure be upheld? Case No. 97-1873 Should Respondent's five-day suspension without pay in February 1997, for insubordination in failing to complete student assessments be upheld? Should Respondent's employment with the School Board of Polk County, Florida, be terminated for insubordination in failing to complete required student assessments?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency responsible for providing public primary, secondary, and adult education in Polk County, Florida. To facilitate that responsibility, the Board hires certified teachers for classroom and administrative activities. Respondent Berger is a teacher, certified by the State of Florida. Berger has been a teacher for 34 years, the last 32 years in Polk County. Berger has taught Exceptional Student Education (ESE) since approximately 1980, Most recently, Berger has been working as an ESE teacher in Polk City Elementary School. During the 1995-96 school year, Randall Borland's first year as principal of Polk City Elementary School, he observed significant discipline problems in Berger's classroom. However, Borland recognized that some of the students were behavior problems, and during the school year Borland worked with Berger on the discipline problem, even to the point of removing students from Berger's classroom. Borland continued to observe problems in Berger's classroom at the beginning of the 1996-97 school year. In response, Borland began working with Berger to assist her management system in the classroom. Borland also observed that appropriate materials were not being used for the students at various levels. In September 1996, Borland met with Berger to discuss the Professional Development Plan (PDP) which he had prepared for Berger to assist her in the improvement of the management of student conduct and the monitoring of student progress. Under the goal of monitoring student progress, Berger was to: Assess students in math, reading, and writing during the first few weeks of school. Use assessment results in prescribing appropriate instruction and materials. Continue to utilize ongoing assessment to monitor student progress. Utilize meaningful and appropriate materials during instructional practices. Ongoing assessments of each student is a requirement of all teachers at Polk City Elementary School. These assessments were to be completed at the beginning of the school year and every nine-week grading period. All teachers are regularly given notice that these assessments are to be reviewed for each grading period. On September 12, 1996, Borland did a classroom observation of Berger's class and reported that she appeared unprepared and unfamiliar with the materials. Borland also made recommendations to assist her in these areas. Individual Education Plans (IEP) are required by State regulation for all ESE students, and the failure to timely prepare IEP's could affect the funding for those students. On September 27, 1996, Berger and another teacher at Polk City Elementary School received verbal reprimands for failing to have IEP's for all of their students. Following the verbal reprimand, Borland met with Berger to discuss her failure to successfully complete her PDP. At this meeting, Borland advised Berger that he intended to request the implementation of a Notice of Evaluation of Assistance in Time (NEAT) procedure. The NEAT procedure is designed to address and improve a teacher's deficiencies. Subsequently, Berger requested the Board to replace her Continuing Contract with a Professional Service Contract under Section 231.36(3)(d), Florida Statutes, and further requested that the process be expedited. The Board acted favorably on Berger's request on October 22, 1996. The effect of the change in contracts was to delay the NEAT procedure. Under the Professional Service Contract Berger would have one year to correct the deficiencies, whereas this benefit was not available under her Continuing Contract. By letter dated October 18, 1996, ESE Supervisor Jonda L. Dement advised Borland that the IEP's for a number of students were out of compliance. It is the responsibility of the ESE teacher to have the IEP's in compliance. Some of the IEP's for Berger's students were not in compliance. Berger received a reprimand for failure to have all of her student's IEP's in compliance. On November 4, 1996, the date set for teachers at Polk City Elementary School to review their assessment results with administrators, Borland met with Berger, and it was evident that her student assessments were not complete. Berger gave no explanation why the student assessment were not completed. Berger's failure to have her assessments complete resulted in her receiving a written reprimand. Additionally, Borland reviewed the importance and significance of the assessment results with Berger. To assist Berger, Borland requested that ESE Supervisor Jonda Dement meet with Berger to review available assessment tools. Dement met with Berger on December 2, 1996. However, other than the assistance offered Berger by Dement as set forth in Finding of Fact 26, the record is not clear as to what assessment tools Dement offered Berger at this meeting. On December 2, 1996, Assistant Principal Toni Bartley observed three students outside of Berger's classroom who remained unattended for some period of time. Bartley entered the back door of Berger's classroom to inquire about the students. Berger informed Bartley that she was giving a test (part of the student assessment) to a student which had to be administered individually to the student without other students present. Therefore, the other students had to remain outside. Upon leaving the classroom by the door where the students were located, Bartley discovered that the door was locked. Berger did not realize the door was locked. However, she admitted that she was not able to always observe the children that were outside the classroom. Subsequently, Borland and Bartley met with Berger concerning this incident. At this meeting, Berger was advised that leaving students unattended was unacceptable and that school policy required that students be supervised at all times. As a result of this incident and because of prior verbal and written reprimands, Borland recommended to the Superintendent that Berger be suspended without pay. By letter dated December 10, 1996, the Superintendent suspended Berger without pay for five days. This five-day suspension is the subject matter of Case No. 97-0384. Although the student assessments were due January 8, 1997, Berger was granted an extension until January 13, 1997. By memorandum dated December 12, 1996, Berger was advised that the ongoing assessments of her students were due January 13, 1997, and that a meeting would be held at 2:30 p.m. that day to review those assessments. However, Berger was granted an extension until January 15, 1997, to complete the assessments. At the January 15, 1997, meeting, it was clear that Berger's student assessments were not completed. As a result of Berger's failure to complete the student assessments, Borland recommended to the Superintendent that Berger be suspended five days without pay for insubordination. By letter dated February 18, 1997, the Superintendent advised Berger that he was suspending her without pay for five days based on insubordination in failing to complete student assessments as required by school policy and procedures. This five-day suspension is the subject matter of Case No. 97-1873. Review of student assessments for all teachers was scheduled for the week of March 10, 1997. Berger's appointment to review her student assessments was scheduled for March 14, 1997. Assistant Principal Bartley reviewed Berger's student files, and determined that numerous student assessments were missing for which there was no explanation by Berger. It is clear that Berger had failed to complete her student assessments at this time. As a result of Berger's repeated and ongoing failure to follow Borland's direction to complete student assessments, Borland recommended to the Superintendent that Berger's employment be terminated due to insubordination in failing to complete student assessments as required by school policy and procedure. By letter dated March 19, 1997, the Superintendent advised Berger that he was suspending her with pay effective March 21, 1997, and would recommend to the Board that her employment be terminated based upon continued insubordination in failing to complete student assessments. By letter dated April 1, 1997, the Superintendent advised Berger that the Board had adopted his recommendation to suspend her without pay effective April 1, 1997, pending the outcome of the administrative hearing. The Board's adoption of the Superintendent's recommendation to terminate Berger's employment with the Board is also the subject matter of Case No. 97-1873. Basically, prior to the 1996-97 school year, Berger had received good evaluations. Likewise, Berger has not had any serious discipline problems while employed as a teacher with the Board. Berger did not verbally refuse any direct order from Borland, or anyone else with authority, to complete her student assessments. However, although she completed some of the student assessments timely, Berger failed to timely complete all of her student assessments as directed by Borland, and required by school policy and procedure. Since approximately 1980, Berger has been completing county-wide assessments for her ESE students. Other than a small problem in 1992, Berger has successfully completed the county- wide assessments since 1980 without incident. Beginning with the 1996-97 school year, Berger, along with the other ESE teacher, was required to complete school-based student assessments. At the beginning of the school year it was Berger's understanding that the students’ classroom teacher would complete the school-based assessments. After being advised that she would be responsible for completing the school-based assessments for her students in certain areas, Berger began to assemble the necessary materials to conduct the assessments. Although Berger was not given any detailed explanation as to how the assessments were to be conducted, she was offered assistance by Jonda Dement, notwithstanding any testimony by Berger to the contrary. Although Dement testified that her office was not entirely familiar with this particular school-based assessment, she offered to have someone from her office to come and assist Berger in conducting and completing the assessments. Berger did not make a request of Dement for any assistance in conducting and completing her student assessments. Berger was given ample opportunity and time to complete her student assessments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board: (a) In Case No. 97-0384 enter a final order rescinding the Superintendent's five-day suspension and giving Berger a written reprimand; (b) In Case No. 97-1873 that the Board enter a final order sustaining the Superintendent's five-day suspension, but rather than terminating Berger, place her on a probationary status, which would allow her to correct any deficiency that the Board feels is necessary. Additionally, Berger should not be entitled to any back pay since the Board’s suspension. DONE AND ENTERED this 12th day of September, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire LANE, TROHN, CLARKE, BERTRAND, VREELAND & JACOBSEN, P.A. Post Office Box 1578 150 Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Polk County School 1915 South Floral Avenue Bartow, Florida 33830-0391
Findings Of Fact Respondent holds Certificate Number 227135, regular, valid through June 30, 1982, covering the areas of biology, science and social studies. Respondent received a bachelor's degree in history, zoology and education from Parson's College in 1967, and a Master of Science degree from the Florida Institute of Technology in 1980. During the 1976-77 school year, Respondent was employed as a science teacher at Nims Middle School in Tallahassee, Florida. Respondent, a licensed professional photographer, also worked with the photography club at Nims Middle School during the school years from 1975 through 1978. On or about May 30, 1977, while Respondent was employed as a science teacher at Nims Middle School, two students, Linda McKenzie and Linda Underwood, were excused from their regularly scheduled sixth period classes to go to Respondent's classroom to look at laboratory animals kept there. At all times material hereto, Respondent aid the two students mentioned above were the only occupants of the classroom. Respondent and the two students engaged in conversation, during which Respondent discussed taking photographs of the two students. As the two students began to leave the classroom, Respondent placed his hands on Linda Underwood's waist and "French-kissed" her. Ms. Underwood was shocked and embarrassed, and quickly left the classroom. The incident was not reported to Ms. Underwood's parents, but was reported to school officials by Ms. Underwood several days after the incident occurred. Prior to the above-described incident, Ms. Underwood had called Respondent on the telephone at his home, and had also written him letters. None of these letters were introduced into evidence in this proceeding. Ms. Underwood apparently also made several telephone calls to Respondent after the incident occurred. Neither the content of these telephone conversations nor any other evidence of record in this proceeding is sufficiently clear to demonstrate that Ms. Underwood was so biased against Respondent to have fabricated her testimony. Having observed the demeanor of the several witnesses testifying on this issue, and having considered their interest, if any, in the outcome of this proceeding, Ms. Underwood's version of the incident is accepted as persuasive. While Respondent was employed as a science teacher at Nims Middle School, he drove to the home of Mrs. Juanita Jackson accompanied by two Nims Middle School students, Carlotta Wolfe and Lori Taylor. The two students were dressed in either bathing suits or shorts, and rode in the front seat with Respondent. had offered the two students a ride when he observed them walking, and was asked by them to drive to the Jackson home. Respondent did not know the purpose of the visit to the Jackson home. One of the students apparently requested that Mrs. Jackson's daughter be allowed to get into the car with Respondent and the other students, but Mrs. Jackson refused to allow her daughter to do so. Although Mrs. Jackson testified that she observed Respondent's arm on the back of the seat while Carlotta Wolfe was seated next to him, there is insufficient evidence of record from which to conclude that any impropriety was intended by Respondent, or in fact occurred. Respondent was granted a leave of absence by the Leon County School Board for the 1979-80 school year, and was reassigned to Godby High School for the 1980-81 school year. On August 4, 1980, Respondent met with William J. Montford, principal of Godby High School, and other administrative personnel. During that meeting Respondent was specifically warned about inappropriate and improper comments and behavior directed toward students. During the 1980-81 school year Ms. Kelly Moore was one of Respondent's students. On one occasion when Ms. Moore was tardy to class and was in the process of signing a late sheet in compliance with school policy, Respondent told her to put her telephone number by her name "...in case I get horny one day." On another occasion, when Respondent inquired and was told that Ms. Moore worked in the lingerie department at Maas Brothers department store, he observed to Ms. Moore that he "...could really get into panties, especially yours." Each of these comments was made in Respondent's classroom, in the presence of other students, and for no appropriate reason. Respondent denies making these remarks, but it is specifically concluded that the testimony of Ms. Moore is more persuasive concerning these incidents. While employed as a teacher at Godby High School, Respondent engaged in a conversation with Dorothy Bryant, Yolanda Jenkins and Kendra Green, three of his students. During the course of this conversation, Respondent told these students that he would like to take them out and get something to drink and smoke with them. During the course of this conversation, Respondent either used or agreed to the use of the term "orgy" in connection with the above-described offer, and wrote a mathematical equation on the blackboard, and inquired of the students "How many times can one go into three?" During the 1980-81 school year at Godby High School, Traci Lingel was another of Respondent's female students. On one occasion when Ms. Lingel sought a pass to leave Respondent's classroom, Respondent remarked to her "Just because I'm your teacher and because I'm older than you doesn't mean that we can't go to bed together." On another occasion, Respondent remarked to Ms. Lingel that he had met her sister, also a student at Godby High School, and that he knew that it was her sister because she had "sexy eyes" just like Ms. Lingel. Further, Respondent observed to Ms. Lingel that he would award her an "A" in his course if she could arrange a date for him with her sister. On still another occasion, Respondent inquired of Ms. Lingel's boyfriend if Respondent could blow in Ms. Lingel's ear. On other occasions Respondent told two of his students, Debbie McCauley and Leeann Nelson, during class periods that he thought they had "nice legs." In addition, Respondent on one occasion told Ms. Nelson that he would like to go to bed with her. On several occasions during his tenure at Godby High School, Respondent related to various of his students that he was "hung over," had gotten drunk the preceding weekend and/or had smoked marijuana. On at least one other occasion, upon sending a male student to Respondent's vehicle to retrieve some items left there by Respondent, Respondent told the student that a bottle of liquor was under the seat in the truck, and the student could take a drink if he wished to do so. This latter remark was made in the presence of other students. Respondent spoke on the telephone with another of his students, Theresa Tran, about taking photographs of her. Respondent inquired of Ms. Tran concerning her favorite alcoholic beverages, and remarked to her that he could take her photographs and afterwards take her out for a drink. Respondent also on one occasion remarked to Traci Lingel, another of his students mentioned earlier in this order, that he and Ms. Lingel could get drunk or high and he could take her photographs. Respondent received a written reprimand dated February 10, 1981, from his principal, William J. Montford, concerning his improper conduct with female students. Respondent was again reprimanded by his principal by written reprimand dated March 17, 1981. On or about June 6, 1981, a presentation designed to inform high school students about the dangers of drug abuse was made in Respondent's classroom. A student attending a drug abuse program outside Godby High School participated in the program to share his negative experiences with drugs with other students. During a break in the program, Respondent engaged in a conversation in which the above-mentioned student and a representative of the Florida Alcohol and Drug Abuse Association participated. During the course of this conversation, Respondent related that he obtained high-quality cocaine through his girlfriend from the New York or Boston areas, and that the quality of drugs so obtained was better than could be obtained in the Tallahassee area. Respondent's remarks to female students were often made openly in a classroom setting so that the students who were the subject of the remarks were embarrassed before their peers and Respondent's predilection for making such remarks became common knowledge among his students. As a result, many of his students were uncomfortable attending his classes. Because of the frequently open and notorious nature of his conduct as hereinbefore related, Respondent's effectiveness as an instructional employee has been seriously reduced. Respondent generally denies that the incidents related above ever occurred. There is, accordingly, a sharp divergence in the various accounts of these activities as related by several of the witnesses. In resolving these testimonial discrepancies, the Hearing Officer observed the demeanor of the witnesses while testifying and considered the interests, if any, of these witnesses in the outcome of this proceeding in determining which of the various versions of these occurrences were the more credible. Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer during the course of this proceeding. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been rejected either as not having been supported by evidence of record or as being irrelevant to the issues involved in this proceeding.
Recommendation Pursuant to notice, the Division of Administrative Hearings, through its undersigned Hearing Officer, William E. Williams, held a public hearing in this cause on September 17 and 18, 1981, in Tallahassee, Florida.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons, applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from 13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees. Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494 Douglas K. Sands, Esquire 300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494 Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301 Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Nikolai P. Vitti to Respondent dated June 28, 2013.
Findings Of Fact Respondent Dennis Hester has been employed by the School Board as a teacher since 1994. He is covered by the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2008-2011. At the time of the events at issue in this proceeding, Mr. Hester was assigned to Fletcher High School as instructional coach and professional development facilitator (“PDF”). ESOL certification requirements At the final hearing, the School Board conceded that the allegation regarding unprofessional behavior would not, standing alone, constitute grounds for terminating Mr. Hester’s employment. The chief allegation against Mr. Hester is that he repeatedly gave School Board employees credit for English for Speakers of Other Languages (“ESOL”) courses for which they performed no work and/or did not attend. Therefore, it is necessary at the outset to explain the School Board’s ESOL requirements for teachers and Mr. Hester’s role in teaching and accounting for credits in ESOL courses. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association.3/ Relevant to this proceeding, Section IV of the settlement agreement required teachers of “English language learners” or “ELL students”4/ to obtain an ESOL endorsement and complete between 60 and 300 hours5/ of in-service training in each of the five following subject areas: Methods of teaching English to speakers of other languages; ESOL curriculum and materials development; Cross-cultural communication and understanding; Applied linguistics; and Testing and evaluation of ESOL. See Fla. Admin. Code. R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.0907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. Only when an ELL student is assigned to a teacher’s class is the teacher required to obtain ESOL certification. Karen Patterson, the School Board’s ESOL specialist during the period relevant to this proceeding, testified that she knew of one teacher who taught in Duval County for nearly 40 years before being “flagged” as “out of field” for having an ELL student in her class and no ESOL credits on her record. The School Board’s policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged out of field for ESOL each school year and must come into compliance with the ESOL requirement by June 30 of the school year in which they are flagged. As noted above, a teacher must obtain between 60 and 300 in-service credits, depending on the subject matter taught. Reading and language arts teachers are required to complete 300 credits of in-service ESOL training; math and science teachers need only 60 credits. The State allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificates. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Paragraph (f) of the same section requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan sets forth the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “Add-on-Program” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan states as follows, in relevant part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify and employ appropriate instructional materials for ELLs at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course (See Appendix)6/ The District Plan sets forth the following under the heading “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL Endorsement7/ Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state approved ESOL in-service courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required courses work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in- service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The District Plan sets forth the following as a section under the heading, “Management”: Attendance requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the Director of Professional Development. She was responsible for all in-service programs in the School District, including the ESOL program. As the ESOL specialist, Ms. Patterson worked directly beneath Ms. Wims in the hierarchy. Then there were 20 to 25 ESOL facilitators such as Mr. Hester, who delivered the in-service training for ESOL professional development.8/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers hadn’t even realized they were out of field for ESOL until near the deadline and they approached Ms. Patterson in a panic. Ms. Patterson testified that the Professional Development staff of the District did whatever was legitimately possible to ensure that teachers flagged for ESOL obtained the credits they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement every year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for all of them. As the end of the school year approached and the desperate push for ESOL classes began, Professional Development would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the five “domains,” i.e., methods of teaching English to speakers of other languages; ESOL curriculum and materials development; cross-cultural communication and understanding; applied linguistics; and testing and evaluation of ESOL. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the whole class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to twelve weeks but that the hybrid class was shortened to six weeks. Ms. Patterson further testified that other “emergency” ESOL courses were shortened to six weeks. She was asked what “emergency” means and responded, “That means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8), Florida Statutes, provides for a “cohesive competency-based professional development certification and education competency program” through which persons with bachelor’s degrees in majors other than education may become certificated teachers. This program is popularly called “alternative certification.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession by way of alternative certification would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way of obtaining ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, basically a certification that the teacher had been out of the country for five or more days and the filling out of an independent study form.9/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts could seek permission to complete independent studies by performing the course work on their own time. Ms. Patterson stated that when she was a PDF teaching ESOL she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the trainers. Ms. Patterson testified that as a PDF she would record a teacher’s participation in an independent study course by marking him “present” at an ESOL class that she or another facilitator was teaching. This was strictly an administrative method of tracking the student, not a statement that the independent study teacher was physically present at the class to which his name had been attached. Ms. Patterson stated that she continued to follow this procedure after she became the ESOL specialist for the entire district. Teachers could also obtain credit for ESOL courses they took in college. This credit was not automatically attached to a teacher’s record but required submission of a written request and an official transcript. A similar credit was available to teachers who obtained in-service ESOL credit during employment in another Florida school district. Finally, a teacher could obtain ESOL certification by passing an examination.10/ At the hearing, Mr. Hester contended that there was an “alternative delivery” method by which teachers could obtain ESOL credits at the discretion of the PDF by demonstrating their ESOL knowledge and skills. The School Board denied that this was ever an option for obtaining ESOL credit. Mr. Hester’s qualifications and experience In 1998, after four years as a classroom teacher in Duval County, Mr. Hester became a PDF working with the District’s Professional Development Cadre, which mentored novice and “needs assistance” teachers and implemented the District’s master plan for in-service education.11/ During his time in Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (“MINT”) program. He trained teachers who had majored in education as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL component. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL, in the areas of testing and evaluation and cross cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher principal Dane Gilbert described standards coach as an especially tough position in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester was also the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (“PLCs”). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher were organized according to academic subject or administrative duty such as “guidance” or “leadership.” As Fletcher’s PDF, Mr. Hester was also involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teachers to document everything happening in the classroom in terms of standards based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted the PLCs with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester was assigned to work with low performing “needs assistance” teachers to improve their performance. Mr. Hester was also the Advanced International Certificate of Education (“AICE”) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester was also Fletcher’s main data analyst as regards student and teacher performance. ESOL endorsements Of the two allegations that the School Board pursued at the hearing, the more serious was that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The School Board asserted that Mr. Hester falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. Mr. Hester did not dispute that he accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. He testified that this was the method by which the District instructed him to account for his independent study students and was the method he had used since 1998. Mr. Hester’s testimony was corroborated by that of Ms. Patterson, who testified that she used the same method of recording the participation of teachers who were taking ESOL courses via independent study. See Finding of Fact 20, supra. Class rosters produced at the hearing confirmed that Ms. Patterson used this method. Ms. Patterson testified that this method of accounting for independent study was in place when she began teaching ESOL and was used throughout her years of teaching ESOL.12/ Both Mr. Hester and Ms. Patterson credibly testified that they had no intent to falsify District records. They were simply employing the record keeping method they had learned from other District personnel. The School Board has failed to demonstrate that Mr. Hester falsified ESOL documents merely by recording independent study participants present in classes they did not physically attend. The genuine controversy surrounds the assertion by several Fletcher High School teachers that Mr. Hester gave them credit for ESOL courses for which they had performed no work at all. Some of these teachers testified that they were unaware Mr. Hester had given them ESOL credits and only learned of receiving the credits during the course of the School Board’s investigation of Mr. Hester.13/ Mr. Hester contends that he never gave anyone credit for doing nothing. He claims that each of these teachers, in one way or another, earned independent study credit within the scope of discretion allowed him by the District until January 23, 2013. On that date, Ms. Patterson sent Mr. Hester an email titled “ESOL Independent Study other than ESOL Foreign Travel.” The body of the email was blank but it contained the following attachment: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following Criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (Reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resources Administrator/Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist for Professional Development or Brenda A. Wims Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist Mr. Hester testified that when he received this email, he understood it as an instruction to change the way he was handling independent studies. He was taken aback by the change, but thenceforth conformed his actions to the new instructions. The School Board denies that the scope of discretion granted to PDFs to award independent study credit was ever as broad as Mr. Hester claims and that the January 23, 2013, email was simply a restatement of longstanding District practice of which Mr. Hester was well aware. However, Ms. Patterson conceded that the purpose of the email was to clarify the policy to all the District’s trainers because some of them may have understood they could do things differently. Ms. Patterson’s testimony is that she “probably” sent the email to all of the District’s trainers, or “probably” provided it to them at a meeting. However, the record evidence shows Mr. Hester as the only recipient of the email, and shows that he received it at about the same time as the District received the anonymous letter that set in motion the investigation of Mr. Hester. As noted in Finding of Fact 23, supra, Mr. Hester claimed authority to award independent study ESOL credit via an “alternative delivery method” or “differentiated instruction.” The alternative delivery method involved Mr. Hester’s assessment of the teacher’s overall competence and his determination that the teacher had ESOL competency and had satisfied the ESOL course requirements despite not sitting for the ESOL classes. The School Board denied that any PDF was, or ever would be, given such broad discretion to award ESOL credit without completing any coursework. Mr. Hester testified that when he began teaching ESOL in 2008, he would go to Ms. Patterson for approval of ESOL independent study projects. Ms. Patterson at length told Mr. Hester and several other trainers that they were aware of the criteria for independent study established by Ms. Wims: the teacher must either have extraordinary family obligations or school duties that prevent her from taking the evening ESOL classes offered by the District. Mr. Hester testified that Ms. Patterson told him that she trusted him to make the call on an independent study project. Ms. Patterson told him that the teachers must meet the expectations of the ESOL course. As the subsequent findings indicate, Mr. Hester believed that in this conversation Ms. Patterson had authorized him to award ESOL credits to teachers who had demonstrated proficiency in the subject matter of the ESOL courses, even where the teachers did not actually perform any course work. This was the source of Mr. Hester’s “alternative delivery” method of obtaining ESOL credit disclaimed by the School Board. Ms. Patterson testified that she did not have the authority to authorize independent study projects, let alone delegate such authority to Mr. Hester. She conceded that she was the trainers’ conduit to Ms. Wims and that she may have relayed Ms. Wims approval of independent study projects to Mr. Hester in a way that gave him the impression that it was Ms. Patterson granting the approval. However, Ms. Patterson denied saying anything that would make Mr. Hester reasonably believe he could award ESOL credit to a School Board employee simply for being a good teacher. Supporting the testimony of Ms. Patterson and undercutting that of Mr. Hester is the fact that Mr. Hester did seek permission, via a June 10, 2011, email to Ms. Patterson, to complete an independent study with seven teachers who were making multicultural presentations at pre-planning. Mr. Hester claimed that Ms. Patterson gave him permission to do the independent study, though Ms. Patterson testified that she could not recall whether Ms. Wims approved. Mr. Hester testified that he asked permission to perform this independent study because it fell outside the scope of the criteria established by Ms. Wims, i.e., extraordinary family obligations or school duties. The School Board reasonably asks: if Mr. Hester admits that he needed to ask permission to conduct an independent study outside the scope of normal parameters, how can he claim the unilateral authority to award ESOL credit for “independent studies” involving no ESOL coursework whatever? The question points to a logical disconnect that Mr. Hester never adequately explained. Even if the undersigned is persuaded that Mr. Hester honestly believed he had the authority to award ESOL credit to “phenomenal” teachers on their personal and professional merits alone, there remain the questions of whether that belief was reasonable, what impact his unreasonably held belief had on the integrity of the District’s ESOL certification program, and whether Mr. Hester’s effectiveness as a teacher in the District has been irredeemably damaged. Other evidentiary elements support Mr. Hester’s version of both Ms. Patterson’s power to authorize independent study projects and the flexibility of the District’s policy of always requiring ESOL coursework for ESOL certification. An email chain in December 2011 involves Mr. Hester’s proposed independent study project for a teacher named Matthew Tracy. In one of the emails, dated December 7, 2011, and addressed to Mr. Tracy, Ms. Patterson, and the District’s Supervisor of Certification, Kella Grant, Mr. Hester wrote: “With Karen Patterson’s permission, I can work with Mr. Tracy and do an ‘independent study’ with the 2 classes in question and do it with him over the break.” The subsequent emails in the chain establish that Mr. Tracy received permission to complete the independent study with Mr. Hester. Ms. Wims is not named in or copied on any of the emails in the chain. Ms. Patterson testified that she conveyed the request to Ms. Wims and then conveyed Ms. Wims’ approval of the project to Mr. Tracy, but no written evidence of any involvement by Ms. Wims was provided at the hearing. Ms. Patterson did not explain why she failed to correct Mr. Hester’s statement that he was seeking “Karen Patterson’s permission,” or why Ms. Grant’s subsequent email appears to accept at face value that Ms. Patterson is indeed the person from whom Mr. Tracy should obtain permission for his independent study project. As to the strictness of the ESOL classwork policy, Mr. Hester pointed out that there was precedent for independent study projects outside of that parameter. In an email dated July 23, 2011, a teacher named Dayle Timmons wrote to Ms. Patterson as follows: I have recently been tagged for ESOL classes. I have 3 years before retirement and have been teaching ESE for 40 years. I figured I would retire before I got tagged—- after all these years. Anyway, as I have been thinking about taking the classes I have been wondering if there is a better way to use my time . . . . As you may know, Chets Creek [Elementary School] has opened a tutoring service at Portside, the 1000 home trailer park that is part of the Chets school zone. Teachers volunteer their time for one day a week for two hours to tutor. There are also other things going on through an agrrement [sic] between Portside[,] the school and Beach United Methodist church. Teacher [sic] also volunteer with Second Harvest once a month to deliver food, some are part of the Rising Tide which is a Sunday School that meets on Saturdays, etc. There’s a lot going on over there and certainly has given teachers that are involved an insight into the children that we serve that has never been possilbe [sic] before. We identified that community because it is where most of our lowest quartile, ESE and behavior problems live. It is also where most of our second language kids live. I am wondering if instead of taking a course, it would be possible to count the tutoring and service as a practicum instead. I’m thinking reading some text and identifying some specific strategies for second language students might be part of the course with data on how the strategy worked or anecdotal notes or something along those lines. As I was thinking about my own need and doing an independent study, I wondered about the bigger Chets community—- many of whom were not able to volunteer last year because they were already committed to taking an ESOL course. Do you think there is a possibility that we could work something out? Ms. Patterson testified that the District’s Professional Development office approved giving the Chets Creek teachers ESOL credit for the tutoring activities they were already performing. Eventually eight to ten teachers at Chets Creek were able to obtain credit for all five ESOL courses. Ms. Patterson conceded that this project did not meet the usual criteria for an independent study, but justified the credits because the teachers were teaching reading and math using ESOL manuals and strategies. When pressed, she allowed that a teacher in any classroom could deploy the same ESOL strategies as those used by the Chets Creek teachers. Christine Andrews has been a teacher at Fletcher since 2002. She teaches AP statistics and AP calculus. On March 16, 2012, Ms. Andrews and several other teachers received an email from Mr. Hester stating, “Please see me ASAP regarding your out of field status.”14/ Ms. Andrews immediately responded with an inquiry as to how she was out of field, to which Mr. Hester just as quickly responded, “ESOL.” Ms. Andrews was puzzled because she believed that her undergraduate program at the University of North Florida had included an ESOL component sufficient to satisfy the 60-hour requirement for a high school math teacher. Mr. Hester, who taught as an adjunct professor at UNF, testified that students at the university had been given the impression that their ESOL classes automatically gave them ESOL credit upon entering the profession and that they were often upset to learn this was not the case. Mr. Hester stated that it is up to the teacher to bring her college transcripts to the District ESOL office to obtain approval. The course Ms. Andrews took at UNF was titled “Teaching Diverse Populations.” Mr. Hester testified that UNF ran into trouble by telling students that this course satisfied ESOL requirements for all school districts in the state. In fact, UNF had not cleared the course with the Duval County School Board. Mr. Hester stated that there was a period of about three years, coinciding with Ms. Andrews’ attendance at UNF, when students wrongly believed that they would receive automatic credit for this course. Ms. Patterson confirmed that ESOL credit for college courses was not automatic. She stated that teachers are required to submit their college transcripts and seek credit from the District. Later on March 16, 2012, Ms. Andrews sent Mr. Hester an email stating that she had spoken to Natosha Earst-Bailey in the District’s Certification department. Ms. Earst-Bailey told Ms. Andrews that her 60 ESOL hours were showing on the computer and she should not have been flagged as out of field. Ms. Earst-Bailey suggested that Ms. Andrews provide her transcript to Mr. Hester so that the records at the school level would jibe with those of the district, as well as provide a copy to Ms. Patterson at Professional Development. Ms. Andrews did not provide her transcript to the school. It was left to Mr. Hester to press the issue of obtaining credit for her college work. In May 2012, Mr. Hester followed up on Ms. Andrews’ claim that she should already have the required ESOL credits and should not be considered out of field. On May 1, he sent emails to Ms. Earst-Bailey and Ms. Patterson requesting a review of Ms. Andrews’ UNF credits for possible ESOL credits. In his email to Ms. Earst-Bailey, Mr. Hester stated, “Also, I attached her points and she has 60 for Cross-cultural and has the paperwork for 60 hours earned at UNF.” On May 2, Ms. Patterson notified Mr. Hester that Ms. Andrews had been approved for the required credits. For purposes of this case, the credits claimed for the UNF class were uncontroversial. However, the School Board’s investigation of Mr. Hester raised the question of whether Ms. Andrews should have received “60 [points] for Cross-cultural” as claimed by Mr. Hester, because it appeared that Ms. Andrews had never taken a Cross-Cultural ESOL course. At the hearing, Ms. Andrews was shown the attendance sheet for a Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011. The chart indicates that Ms. Andrews was present for every one of the twelve class sessions. Ms. Andrews testified that she did not attend any of the class sessions. Given the District’s method of tracking independent study students, it would not be unusual for a teacher’s name to appear on a class roster although the teacher was not physically present for the class. The problem for Mr. Hester is that Ms. Andrews testified that she did not take an independent study course from Mr. Hester or anyone else during that period. She testified that she knew nothing about this course or of having received credit for it until June 2013, when she was questioned during the School Board’s investigation of Mr. Hester. She had no memory of discussing her ESOL credits, or lack thereof, with Mr. Hester in 2011. Mr. Hester testified that Ms. Andrews had been adamant that her college work exempted her from taking ESOL courses, and was furious when Mr. Hester explained what she had to do get “in field.” Mr. Hester stated that he did not do many independent studies and that he chose them on a case by case basis. He testified that Ms. Andrews was “a phenomenal teacher” with a “fantastic rapport” with her students, who topped the state in AP statistics and calculus scores. However, she became very difficult when Mr. Hester relayed the news that she might not get credit for her “Teaching Diverse Populations” class at UNF. Mr. Hester stated that they sat down and discussed her situation. Ms. Andrews fretted that she would lose her job. Mr. Hester told her it was too late to enroll in an ESOL course, but that he would work with her on an independent study.15/ Mr. Hester testified that this was a “very, very rare occurrence” because Ms. Andrews did not meet the criteria established by Ms. Wims for independent study, i.e., she had no family obligations or school duties that ruled out attendance at a regular ESOL course. He testified that when he wanted to undertake an independent study for reasons outside of Ms. Wims’ criteria, he usually called Ms. Patterson for permission and that he "probably" did so in the case of Ms. Andrews. Ms. Patterson did not testify as to her recollection of a conversation with Mr. Hester about an independent study for Ms. Andrews. She clearly testified that she had no authority to authorize Mr. Hester’s independent study proposals. At most, she forwarded the proposals to Ms. Wims and relayed Ms. Wims’ decisions to Mr. Hester. Mr. Hester believed that losing Ms. Andrews would be a “major loss to education” and decided to pursue an independent study with her, employing the “alternative delivery” method, despite the fact that she did not meet the standard criteria for an independent study. He looked at everything he knew about Ms. Andrews as a teacher: the quality of her teaching, her extensive PLC work, her lesson design notebook, his classroom observations of and discussions with Ms. Andrews. He was familiar with the content of the course she took at UNF because he taught the course, and he took that course into account. Mr. Hester talked with ELL students to confirm that Ms. Andrews was using ESOL strategies to communicate with her students. Mr. Hester testified that by taking all of these factors into account, he was able to determine that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit. When pressed during cross examination, Mr. Hester conceded that Ms. Andrews did not perform an independent study16/ and did not receive any instruction from Mr. Hester to receive the 60 ESOL points for which she was credited. What did she do? Mr. Hester stated as follows: We looked at the PLC information, the binders and the information that she had, and embedded in those were the assessments, were the strategies, were the lesson plans, were the student strategies, all those areas, also, with her lesson design notebook, which included her lesson plans, her specific students with the strategies needed, so on and so forth. And I remember being in Ms. Andrews’ classroom at least once for observation. In other words, Ms. Andrews performed no classwork or dedicated work of any kind to obtain credit for Cross-Cultural ESOL. Mr. Hester believed that he was authorized to award ESOL credits based on the teacher’s competence and the quality of her teaching, provided the teacher in question was “phenomenal.” He believed that Ms. Andrews was qualified to receive the ESOL credits and stated that he had no intent to mislead anyone as to how Ms. Andrews received the credits. Mr. Hester testified that he was “confused” that Ms. Andrews claimed she knew nothing of the ESOL credits until the investigation in this case commenced. He stated that Fletcher’s computer system allowed teachers to view their transcripts and course credits and that Ms. Andrews could have accessed her records at any time. Julie Durden graduated from UNF in 2004 with a degree in English and American Sign Language (“ASL”) and had taught at Fletcher since 2004. She met Mr. Hester when she was taking alternative certification courses from him, and knew him thereafter in his role as PDF at Fletcher. Ms. Durden testified that prior to the 2013-2014 school year she taught ASL to hearing students and did not have any ELL students in her classes. In the 2013-2014 school year she was switched to teaching English. Ms. Durden stated that she was first flagged as out of field for ESOL during the 2013- 2014 school year, although documentary evidence presented at the hearing indicated that Mr. Hester sent Ms. Durden an email regarding her out of field status on March 16, 2012.17/ At the hearing, Ms. Durden was shown the attendance sheet for the Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011, the same attendance sheet that had Ms. Andrews’ name on it. Ms. Durden is listed as attending all but one of the twelve class sessions. Ms. Durden testified that she did not sign up for this course, did not attend the classes, and performed no independent study to qualify for ESOL credit in this class. Ms. Durden stated that she knew nothing of receiving credit for this class until she was interviewed during the School Board’s investigation of Mr. Hester. Mr. Hester testified that Ms. Durden first came to him during the 2011-2012 school year, when he notified her that she was out of field. She did not believe she needed ESOL because she was teaching ASL, but Mr. Hester informed her that she needed 60 hours of credit. It was late in the semester, too late to sign up for an ESOL class, and she did not know what to do. Mr. Hester testified that he would be willing to look at Ms. Durden’s activity in establishing “Challenge Day” at Fletcher and at her pre-planning activities during the 2010-2011 school year as equivalents under his “alternative delivery” independent study method. “Challenge Day” was a national program that Ms. Durden imported to Fletcher. It is a three-to- four-day program on diversity, designed to break down barriers between students, eliminate cliques and bullying, and create a safe environment for all students. The program was such a success at Fletcher that it spread to every high school in Duval County. Ms. Durden testified that she put in a lot of work to establish and maintain the Challenge Day program. She conceded that there may be some subject matter overlap between Challenge Day and ESOL, but could not fathom how her Challenge Day activities could be considered a substitute for an ESOL class because they have nothing to do with teaching strategies for ELL students. She denied that Mr. Hester ever told her she could get ESOL credit for running Challenge Day at Fletcher. She did admit that Mr. Hester reviewed her lesson design notebook, though she assumed he did so in his role as Fletcher’s instructional coach. Ms. Durden testified that pre-planning in-service courses are organized for teachers to attend during the week before the school year begins. She stated that she helped with the training on one occasion, but that Mr. Hester never told her that she could get ESOL credit for helping with the pre-planning in-service training. She had no idea whether Mr. Hester had received permission to give her ESOL credit for her Challenge Day or pre-planning in-service activities. Mr. Hester testified that Challenge Day is “all Cross Cultural ESOL” because it “breaks down barriers of bullying, you know, racism, and sexism, and everything.” He stated that he told Ms. Durden that she did not have to attend the Cross Cultural ESOL class, that he would “take care of it.” They talked about the work she had done for Challenge Day and pre- planning and how that work equated to the expectations of the ESOL course. As noted above, Ms. Durden denied that any such conversation occurred. Mr. Hester testified that he had a telephone discussion with Karen Patterson about the extent to which preparations for Challenge Day could satisfy the requirements for Cross Cultural ESOL. He stated that Ms. Patterson told him that, “In the end, does what they do meet the expectations of the course?” Mr. Hester could produce no written memorandum to confirm this conversation. Ms. Patterson was not specifically asked about Challenge Day, but denied having any conversation that could be construed as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. At the time of the hearing, Sherry Murrell was in her tenth year as a geometry and intensive math teacher at Fletcher. Ms. Murrell’s name appears on the class roster for the same 2011 Cross Cultural ESOL class that included the names of Ms. Andrews and Ms. Durden. She is listed as attending each of the twelve class sessions. Ms. Murrell testified that she had completed all of her ESOL requirements in June 2005. She was not out of field in 2011 and had no need to take an ESOL course. She stated that she was in Mr. Hester’s office one day when he asked her to attend one of his courses. She told him she didn’t need professional development points. He replied that she just needed to say that she sat in the class. She told him that she needed to be in her classroom and couldn’t be in two places at once. Mr. Hester persisted. At that point, Ms. Murrell needed to leave to pick up her own children and told Mr. Hester, “Sure, whatever,” on her way out the door. Ms. Murrell testified that she did not sign up for or attend the 2011 ESOL class. She did not complete an independent study for the course credit. She did not learn she was on the attendance sheet until a School Board investigator contacted her in June 2013. Ms. Murrell’s name also appears on an attendance sheet for an ESOL Curriculum & Materials course that Mr. Hester taught from January to April 2012. The sheet indicates that she attended eleven out of twelve class sessions. Ms. Murrell testified that she did not attend this course or perform any independent study activities for this course. Again, she only learned that her name was on the attendance sheet from the School Board investigator. Ms. Murrell testified that about a week and a half before the investigator came to the school, a student delivered to her a manila envelope containing a completed “course activities checklist” for an ESOL Curriculum & Materials class taught during Spring 2012 and for a Hybrid ESOL class taught in Spring 2012. Both documents were signed by Mr. Hester and dated April 3, 2012. These are the documents that a course instructor completes to verify that a teacher has satisfactorily completed all the required activities in a given ESOL course. Ms. Murrell testified that she did not take either of these courses. At lunch that day, Mr. Hester asked Ms. Murrell if she had received the envelope and she said yes. He said nothing more about it, and Ms. Murrell gave it no more thought until the investigator arrived. She provided the investigator copies of the checklists. Ms. Murrell recalled another conversation with Mr. Hester about an ESOL class in which he told her she went “above and beyond” the course requirements. Ms. Murrell testified the conversation went as follows: I said I didn’t sign up for that class. He’s like, Well, I can make it an independent study. I was like, You can do that? And he said, Yes. And I’m like, Well, isn’t there some course work that I have to do online? He’s like, No, don’t worry about it. You’ve gone above and beyond. He goes, You’ve met all the criteria. When Ms. Murrell protested that there must be something she needed to turn in to show the course work, Mr. Hester responded that she shouldn’t worry about it. He would make it an independent study and take care of everything. Mr. Hester testified that Ms. Murrell was one of the rare “phenomenal” teachers who merited ESOL credit for the quality of her teaching. He recalled Ms. Murrell telling him that she had learned it was possible to “bank” ESOL points, meaning that extra ESOL points may be carried over and applied to a teacher’s next recertification period. Ms. Murrell expressed a desire to take ESOL courses for banking purposes but was unable to do so because she had two young children at home. Mr. Hester testified that he told Ms. Murrell, “Well, Sherry, with what you're doing at Fletcher, we could be able to show that you have competency in this course.” He denied ever telling Ms. Murrell that she should tell people she sat in one of his classes. Mr. Hester testified that he sent the completed course checklist to Ms. Murrell in April 2013 at her request. She was concerned about the ongoing investigation and was worried because she couldn’t find the checklist sheet that proved she had completed the competencies for the class. She asked Mr. Hester for another checklist sheet and he provided it via interoffice mail. Mr. Hester stated that he could not understand why Ms. Murrell would deny knowing about the ESOL class attendance sheets. Mr. Hester described Ms. Murrell’s qualifications for the ESOL credit as very similar to those of Ms. Andrews with the addition of extensive pre-planning training. Ms. Murrell also performed teacher trainings for Compass Odyssey, a proprietary program used by the School Board, and testified that she never missed a PLC. Her lesson design notebooks were “overflowing.” Mr. Hester believed that Ms. Murrell easily met the substantive criteria for obtaining the ESOL credits he awarded, despite her never taking a course or an active independent study program from him. Mr. Hester clearly remembered asking Ms. Patterson for permission to do an independent study with Ms. Murrell. Heather Kopp graduated from UNF in 2006 and started teaching at Fletcher in 2007. After two years she transferred to Mandarin High School. She returned to Fletcher two years later. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told she needed no further ESOL courses. Ms. Kopp later received an out of field notice. She contacted the District office and explained that at UNF she had performed a 50-hour internship and wrote a case study to fulfill her ESOL requirements. The District awarded her the ESOL credit. Ms. Kopp testified that she has taken no ESOL courses since graduating from UNF. At the hearing, Ms. Kopp was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from January to March 2009. Ms. Kopp is listed as present at every session of the course. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp was also shown the attendance sheet for an ESOL: Curriculum & Materials class taught by Mr. Hester from January to March 2010. Ms. Kopp is listed as present at every class session. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp testified that she first learned of her purported participation in these classes during the School Board’s investigation in this case. Mr. Hester testified that Ms. Kopp came to him because she was out of field and didn’t know what to do. Her husband worked in the evenings and she had two small children and could not attend evening ESOL courses. Mr. Hester obtained permission to work with Ms. Kopp on an independent study. At the time of the courses, Ms. Kopp was working at Mandarin High School but lived near Fletcher, where Mr. Hester taught the courses. Mr. Hester gave Ms. Kopp access to the course online. She independently performed all of the course work and left the written work in Mr. Hester’s mailbox at Fletcher. Mr. Hester testified that Ms. Kopp performed all of the course work in both of the ESOL classes for which he gave her credit. Ms. Kopp denied working with Mr. Hester on independent study classes in 2009 and 2010. She did not recall telling Mr. Hester about her husband or her children making it hard for her to attend evening classes. Ms. Kopp did recall telling Mr. Hester that she had satisfied her ESOL requirements at UNF. Catherine Johnson teaches English at Fletcher. She started at Fletcher in 1998. She took a two-year leave of absence that ended with her return to Fletcher on December 1, 2008. At the hearing, Ms. Johnson was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January through March 2009 at Fletcher. The sheet indicates that Ms. Johnson attended all but one of the nine class sessions. Ms. Johnson testified that she did not attend the class, did not sign up for the class, did no course work for the class and performed no independent study in relation to the class. Ms. Johnson was also shown the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson testified that she had nothing to do with this course. Ms. Johnson recalled that in December 2010 she received an out of field notice for ESOL. She talked to Mr. Hester about it, telling him that she was not sure exactly which ESOL class she needed to take. Mr. Hester consulted with Ms. Patterson, who wrote to him that Ms. Johnson needed part 2 of Cross-Cultural Communications to complete her ESOL endorsement. Mr. Hester passed this news along to Ms. Johnson. Ms. Johnson asked Mr. Hester what she needed to do to complete the ESOL endorsement. Mr. Hester told her just to consider it independent study. He handed her two discs to download to her computer in case of an audit. Ms. Johnson testified that she tried to download the disks but either they were defective or she was doing something wrong. She brought them back to Mr. Hester and asked him to come to her classroom and try to download them to her laptop. Mr. Hester took the disks from her and told her that he knew her reputation as a classroom teacher. Ms. Johnson was a quality instructor and had fulfilled the requirements of part 2 of the Cross-Cultural Communications course. Ms. Johnson stated that because Mr. Hester was her PDF, she took him at his word. She did no work for the ESOL course. Ms. Johnson testified that Mr. Hester later made reference to having done her a “favor.” The reference was not specific, but she believed he was referring to having given her the ESOL credit. She stated that Mr. Hester also alluded to having done “favors” for Heather Kopp. She did not pursue the issue with Ms. Kopp because she didn’t want to make her uncomfortable. Mr. Hester testified that Ms. Johnson was the third of the three “phenomenal” teachers who received ESOL credit because of the quality of their teaching. He stated that Ms. Johnson came to him “in rather of a panic” after being notified she was out of field. Mr. Hester testified that he was very familiar with her work, having taken “needs assistance” teachers to her classroom to see how it is done. He knew her PLC work and was familiar with her lesson design notebook. Mr. Hester stated that he gave Ms. Johnson the syllabus for the Cross-Cultural ESOL course and told her that she could either come to the class or he could look at her lesson design notebook and her work in the PLCs and see how well these items met the course criteria for the class. He testified that Ms. Johnson was very happy to see that her classwork satisfied all of the requirements of the ESOL class syllabus and that she would be able to obtain her endorsement. Mr. Hester was certain that he and Ms. Patterson discussed Ms. Johnson’s situation and that Ms. Patterson okayed the independent study option in her case. Mr. Hester agreed that he did not give Ms. Johnson any work to do. He denied giving her discs or CDs to download into her computer. There was no need to do so because all of the course materials were on the District website. He gave her the course syllabus for Cross-Cultural ESOL and told her she could use that as documentation if she needed it. He denied giving her the syllabus “in case of an audit.” He gave her the syllabus because she asked for documentation of the course. Mr. Hester testified that he wasn’t “giving” anything to Ms. Johnson. She earned the ESOL credit because of the extra work she did with the PLC groups, her status as an AICE, her lesson design notebook and his observations with her in the classroom and the PLCs. At the time of the hearing, Josh Corey had been a teacher at Fletcher for twelve years. He teaches leadership and physical education and also serves as the head football coach, assistant athletic director and student activities director. Mr. Corey testified that he had known Mr. Hester for fifteen years, since they taught together at Fletcher Middle School. Mr. Corey testified that he was up for recertification in 2013 and looked up his records. He was surprised to see that he had five ESOL courses, or 300 hours, to his credit. He believed that he only had 180 hours, and was puzzled by the last two courses he was credited with completing in 2011. Mr. Corey was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from April to June 2008 and agreed that he attended the class and did the course work. Mr. Corey was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January to March 2009 and agreed that he did independent study work through Mr. Hester for this course. Mr. Corey was coaching softball at the time and was unable to physically attend the class. Mr. Hester told him that he was approved through the District to do an independent study. Mr. Hester gave Mr. Corey the readings and assignments and Mr. Corey did the work on his own time. Mr. Corey was shown the attendance sheet for an Empowering ESOL Teachers course taught by Mr. Hester during July 2010. Mr. Corey testified that he did not physically attend the class but he performed an independent study through Mr. Hester. He was allowed to do independent study for this course because he was teaching drivers’ education and working at the school during the summer. Mr. Corey testified that the 2009 and 2010 courses were the only independent study courses he ever took from Mr. Hester. He was shown the attendance sheet for an ESOL: Applied Linguistics course taught by Mr. Hester from January to April 2011 and the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester on different nights during the same period. Mr. Corey’s name (along with the name of his wife, Michelle Corey, a kindergarten teacher at Seabreeze Elementary) appeared on the sheets for both classes. Mr. Corey testified that he did not attend either of the 2011 classes. He was coaching softball during this time and could not have attended classes either after school or in the evening. He did not sign up for the courses and could not recall having any discussions with Mr. Hester about them. He only learned that he had been credited for the courses when he pulled his points for recertification in October 2013. Mr. Hester testified that Mr. Corey wanted ESOL points for banking purposes. Mr. Corey’s wife, Michelle, had come back into teaching after taking time off to have a child and also needed ESOL courses. They had a problem because Mr. Corey coached in the evenings and they had two small children. Therefore, Mr. Hester allowed them to do independent studies and turn in their work in the same fashion Ms. Kopp had. Mr. Hester testified that the work was turned in with both Coreys’ names on it. He assumed they collaborated on the work and gave them both credit. Mr. Hester stated that collaboration was encouraged in the ESOL independent studies because it mimicked the sharing of activities and experiences that goes on in the ESOL classroom. Mr. Hester agreed that Mr. Corey did not attend the 2011 ESOL classes, but stated that the Coreys did the work independently. He assigned them all of the activities and readings they would have done in the class, and they submitted the completed work to him.18/ Andrew Davis testified that he went through the alternative certification program, finishing at the end of his third year of teaching in 2010. He taught intensive reading from 2008 through spring 2013, then switched to physical education. He is a football coach. Mr. Hester was the instructor for Mr. Davis’ alternative certification course and acted as a mentor to Mr. Davis as he began his teaching career. At the hearing, Mr. Davis was shown attendance sheets and/or completion reports for the following classes: Methods of Teaching ESOL, taught by Mr. Hester from January to March 2009; Empowering ESOL Teachers, taught by Mr. Hester during July 2010; ESOL: Applied Linguistics, taught by Mr. Hester from January to April 2011; Cross-Cultural ESOL, taught by Mr. Hester from January 2011 to April 2011; and ESOL: Curriculum & Materials, taught by Mr. Hester in spring 2012. Mr. Davis testified that he did not attend any of the classes in the 2009 Methods of Teaching ESOL, despite his being marked present for each of the nine class sessions. He testified that he performed an independent study with Mr. Hester, who told him that things he was doing in the classroom or while coaching counted toward his credit for the class. Mr. Hester also assigned him readings for the class. Mr. Davis testified that he did not attend any of the classes in the 2010 Empowering ESOL Teachers course, despite his being marked present for six of the seven class sessions. He did an independent study consisting of “whatever Mr. Hester asked me to do, whether it was looking at articles or things like that.” Mr. Davis was coaching football during this period, and stated that Mr. Hester told him that coaching football counted toward his independent study. Mr. Davis’ testimony was the same as to all five of the listed ESOL classes. He did not attend the classes. He performed an independent study with Mr. Hester, but only vaguely recalled what Mr. Hester had him do for the course. He mostly recalled being assigned articles to read. Mr. Davis could not recall if his alternative certification course with Mr. Hester provided him with ESOL credit. Mr. Hester confirmed that Mr. Davis received 300 credits over the course of three years doing independent studies for ESOL courses. Mr. Davis was coaching girls’ flag football among other things and his coaching duties conflicted with the ESOL classes. Mr. Hester testified that he employed Ms. Wims’ criteria to allow Mr. Davis to take independent study courses because his school duties did not permit him to take regular ESOL classes. Suzanne Harman has been a teacher since 1974, and has taught English at Fletcher since 1996. She stated that she was out of the classroom from 1986 to 1996 because of her husband’s career in the Navy. On March 25, 2011, Ms. Harman received an email from Natosha Earst-Bailey informing her that she was out of field for ESOL and must document completion of the required ESOL credits by December 31, 2011. Ms. Harman forwarded the email to Mr. Hester and asked him what she needed to do. Ms. Harman testified that she had given ESOL no thought prior to this email, as it did not even exist during her early days in teaching. She heard from fellow teachers that Mr. Hester was the person to see about ESOL credits. Ms. Harman went to see Mr. Hester. Her testimony is unclear as to how much time passed between her receipt of the email from Ms. Earst-Bailey and her meeting with Mr. Hester, but it appears from the context of her testimony that she waited until October 2011. Ms. Harman testified that when she mentioned that her friends had advised her to see him, Mr. Hester “looked up kind of funny” and she wondered whether she had said something wrong. He asked who told her that. She replied that it was just a couple of her friends. Mr. Hester stated, “Well, they need to watch what they tell people.” Ms. Harman testified that Mr. Hester then pulled out a piece of paper, later identified as a “course artifacts checklist” for the Cross-Cultural ESOL course, and started going over the items on the checklist, saying, “I’ve seen you do this in your classroom. Ms. Harman stated that “he was signing, signing, and then handed a piece of paper to me when he finished initialing.” The document states that Suzanne Harman took the seminar in summer 2011. Mr. Hester signed the “statement of completion” as the approving instructor and dated it October 5, 2011. He initialed every item on the checklist, including eleven “journal entries.” The form states that “All articles are to be read and each summary is to be 2 paragraphs long.” Ms. Harman testified that she did not complete any of the activities checked off on the form. The problem with Ms. Harman’s testimony that Mr. Hester out of the blue completed a checklist for her on October 5, 2011, is that her name appears on the attendance sheet for the Cross-Cultural ESOL class taught by Mr. Hester from July through September 2011. She was shown this attendance sheet at the hearing and confirmed that she did not attend any of the twelve classes in the course, but was not asked how Mr. Hester could have known to place her on the class list in July when she did not come to him for help until October.19/ Mr. Hester testified that Ms. Harman was a needs assistance teacher, meaning that she was labeled by the Fletcher administration or the District as needing help because she was not meeting classroom expectations. Mr. Hester worked with Ms. Harman quite a bit at the behest of Fletcher’s assistant principal supervising the English department. Mr. Hester testified that Ms. Harman tried very hard in class, but was weighted down with personal issues at home. Mr. Hester agreed that Ms. Harman told him that other teachers said he was the person to see about ESOL but he denied telling her they needed to keep quiet about it. He stated that Ms. Harman requested an independent study similar to Catherine Johnson’s, i.e., an “alternative delivery” award of ESOL credit based on her merits as a teacher. Mr. Hester told Ms. Harman that it doesn’t work that way. Ms. Harman was a little irate because she thought she was as good a teacher as Catherine Johnson. Mr. Hester testified that he would never sit down with a teacher and tick off boxes on a checklist to give ESOL credit. Before giving credit under the alternative delivery method, he would examine the teacher’s PLC group, individual assessments, collective assessments and lesson design notebooks. He would observe the teacher in the classroom. The scene described by Ms. Harman did not happen. Mr. Hester did sit down with Ms. Harman to go over the checklist, but only when she came in with her completed portfolio at the end of the 2011 independent study. Mr. Hester stated that he allowed Ms. Harman to do an independent study because she was having so many issues at home with her family. Mr. Hester made time to sit with her to go over the work, mostly readings and activities, once or twice a week. Mr. Hester testified that Ms. Harman did more work for the Cross-Cultural ESOL class than is indicated on the checklist he signed on October 5, 2011. Ms. Harman was on the recipient list for the same March 16, 2012, out of field email that Mr. Hester sent to Ms. Andrews and Ms. Durden. On the same date, Ms. Harman sent Mr. Hester the following response: “Is it time for me to take another class with you?” Ms. Harman testified that she was not sure what Mr. Hester would expect of her, because she had heard that some people had taken classes for their ESOL credits in the time since Mr. Hester allegedly gave her the checklist. Mr. Hester told Ms. Harman that he was teaching a hybrid ESOL class on Tuesday nights in a portable classroom at Fletcher. The attendance sheet for this class indicates that Ms. Harman was present for the Curriculum & Materials portion of the hybrid class for the seven sessions held between April 24 and June 5, 2012. Ms. Harman testified that she did indeed sign up for the course and that she attended every session except the first. She stated that she was having difficulties during this period with her mother, who had been put on a new Parkinson's disease medication that caused her to stop breathing. Her mother was rushed to the hospital via rescue unit three times during the time Ms. Harman was attending the class. Ms. Harman twice emailed Mr. Hester to say she might not make the class, but each time she attended. However, Ms. Harman was not able to complete all the work for the class in timely fashion. At the last class, when the rest of the students were turning in their work folders, Ms. Harman told Mr. Hester that she had not been able to finish. He told her to get the work to him when she could. On June 28, 2012, Mr. Hester sent an email to Ms. Harman thanking her for “completing the Hybrid ESOL class this spring.” He attached a copy of the artifacts checklist. He wrote that Ms. Harman received 60 ESOL points for the course. Ms. Harman testified that she read this email with relief. She believed it meant that she did not need to submit her uncompleted coursework, that her class attendance and the work she had done were sufficient for class credit. On January 25, 2013, Mr. Hester sent Ms. Harman an email stating that he had to see her about her ESOL work. Ms. Harman testified that she went to see Mr. Hester the next day. He told Ms. Harman that he needed to see her work folder from the class. She was shocked and asked why he needed it seven months after the class. Mr. Hester told her that something had been said about the way he gives out ESOL points, and that he needed her folder. Ms. Harman testified that she told Mr. Hester she hadn’t talked to anyone. Mr. Hester responded that he didn’t trust anyone. Ms. Harman promised to look for the folder but she wasn’t sure she had kept it. She was able to find a few pieces of her work from the class and she sent those to Mr. Hester with a note stating that this was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester reported to Ms. Patterson that Ms. Harman did not complete the agreed-upon work that he assigned her to complete the Hybrid ESOL class in which she was enrolled from April to June 2012. His email to Ms. Patterson stated as follows, in relevant part: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know that I am not allowed to give that amount of time). However, I could not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited until the end of April (April 28, 2013) to see if she would come to me and complete the necessary work—- she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum & Materials. Please have these points removed from her Master Plan Points. Ms. Harman received a courtesy copy of this email. She testified that she was shocked by it because she and Mr. Hester had not had the referenced discussions. She did not think that the District actually took away her points for the class. Mr. Hester testified that he had talked to Ms. Harman many times about the need to send in her work before he sent the email of January 23, 2013. His email should not have been a shock because of their many conversations. Mr. Hester stated that the email Ms. Harman received in June 2012, stating that she had completed the course, was a bulk email sent to all the course participants. Mr. Hester and Ms. Harman had made an agreement. Because she was having so many family issues, he would give her more time to get her portfolio finished. When the teachers came back in the beginning of August, Mr. Hester met with her and told her that he still needed her class portfolio. According to Mr. Hester, there was no surprise intended and no vindictiveness involved in his email to Ms. Patterson. By the time he sent it, Mr. Hester knew that he was under suspicion. He considered Ms. Harman’s case a loose end he needed to tie up so that no one could say he was giving away ESOL points that the teachers had not earned. Nicole Conrad graduated from Flagler College in 2005 and taught at Fletcher from 2007 to 2013. She now teaches at Lake Shore Middle School in Jacksonville, after being “surplused” from Fletcher. Ms. Conrad was the head coach of the girls’ varsity soccer team at Fletcher and assisted with softball and cross country. She taught Spanish I and a career and college readiness course. Ms. Conrad believed that her classes at Flagler had satisfied all of her professional ESOL requirements. However, on May 5, 2010, she received an email from the District’s distance learning coordinator stating that she needed ESOL points before the June 30 deadline. Ms. Conrad did not believe she should have received this notice but she nonetheless went to Mr. Hester to find out how to proceed. Ms. Conrad testified that Mr. Hester told her that because she was a coach she didn’t need to do anything to obtain the ESOL credit, “that I was taken care of, or exempt, or whatever it might be. He said after-school duties.” Ms. Conrad responded by saying “I felt like he was a hustler.” Mr. Hester did not like that comment. Ms. Conrad testified that his answer was, “If I was a hustler, I’d be making money.” Ms. Conrad stated that she called Mr. Hester a “hustler” because it seemed that certain people were required to do more work for ESOL credit than others, depending on their relationship with him. Mr. Hester appeared to use his position to gain leverage over people. Because she did not trust Mr. Hester, Ms. Conrad declined the “exempt coach” option and insisted on doing work to obtain her ESOL credits. Mr. Hester gave her a packet of work to do, which she completed in a week or two. Mr. Hester recorded Ms. Conrad as attending an ESOL: Methods class that he taught from February to May 2010. Ms. Conrad testified that she did not in fact attend any class sessions but that she independently did the work for this class. On cross-examination, Ms. Conrad conceded that before her out of field notice and the meeting with Mr. Hester at which he told her she need do nothing for her ESOL credit, Mr. Hester had sent her a lengthy email outlining her options for obtaining ESOL credit, none of which involved “doing nothing.” The email, dated March 29, 2010 (more than a month prior to the date on which Ms. Conrad testified she first learned she was out of field), stated as follows, in relevant part: As a summary of our conversation last week regarding ESOL and your expectation to complete 60 hours to keep you [sic] job, I am listing your options. You can petition the district ESOL office to allow your college courses [to] count for credit. You need to remember the following: The state university systems did not get clearance from the state that those course [sic] can be used as ESOL credit. The district and the state is [sic] under no obligation to honor these course [sic]. If you plan on petitioning the district to allow the courses, you have to: Get an Official-certified copy of your college transcripts, Drop off the transcripts (in person) to Karen Patterson . . . . This process may take up to 3 months (average wait time) and there is NO GUARANTEE that you will receive credit for the classes. You can get into the classes that I am teaching at Mandarin HS. They are every Tuesday starting at 2:00 p.m. I will provide you some make up work to get you caught up from the classes that you missed. The next class is tomorrow March 30th at Mandarin HS at 2:00 p.m. You can get with Carmen Meyer and see if she has room in her class that is going on right now. You can do the Independent Study option that we discussed. You will receive a listing of assignments of what you need to complete and the dates and times we will meet to review the information. I will have this ready on the Tuesday after break for your review (if you plan to complete this option). Please let me know what you plan to do. Ms. Conrad conceded that this email indicates that Mr. Hester was trying to help her by offering a number of legitimate options for obtaining her ESOL credits. However, she continued to state that Mr. Hester later offered to “do a favor” and give her the credit based on her coaching duties alone. Mr. Hester testified that Ms. Conrad was identified by the District’s World Languages supervisor as a needs assistance teacher. Ms. Conrad was friendly with Mr. Hester when she started at Fletcher, but that ended when he started working with her as a needs assistance teacher. Their relationship soured to the point that Mr. Hester moved away from performing direct classroom observations of her. Dr. Joanne Davis, the World Languages supervisor, took over the task of observing Ms. Conrad and worked for three years in an attempt to improve Ms. Conrad’s classroom performance. A sample of Dr. Davis’ observations was entered into the record, and discloses many problems with Ms. Conrad’s classroom performance, including her failure to implement any of Dr. Davis’ prior suggestions. Mr. Hester testified that Ms. Conrad came to him at some point to talk about being out of field. She was “annoyed” about that because she believed she had taken the necessary ESOL courses at Flagler. Mr. Hester outlined her options, which are reflected in the March 29, 2010, email quoted above. Ms. Conrad chose the independent study, did the work assigned by Mr. Hester, and earned the ESOL credit. Mr. Hester denied telling Ms. Conrad that he would give her the credit just for being a coach. Mr. Hester confirmed Ms. Conrad’s version of the “hustler” conversation, except that he was in no way bothered or concerned about it. He testified that he considered Ms. Conrad a friend at the time and that they were both joking. Dane Gilbert, the principal at Fletcher High School from July 1, 2006, to June 30, 2012, testified that he learned in spring 2013 that he had received 60 points for a hybrid ESOL class taught by Mr. Hester from May to June 2012. The attendance sheet for the ESOL: Testing & Evaluation portion of the hybrid class indicates that Mr. Gilbert attended six out of the seven class sessions. Mr. Gilbert testified that he did not attend any of the classes and did not perform any independent study to obtain the credits awarded for the class. Mr. Gilbert testified that, to his knowledge, he did nothing directly for this ESOL class. He noted that he had done a lot of work with Mr. Hester in the area of testing and evaluation, though not in the area of ESOL. Mr. Gilbert testified that as principal he green- lighted Ms. Durden to initiate the Challenge Day program at Fletcher and that he did a lot of work on the program. Mr. Hester testified that Mr. Gilbert indeed received credit for “Empowering ESOL,” which is testing and evaluation. He stated that he and Mr. Gilbert had a conversation about it during the period when Challenge Day was going forward. Mr. Gilbert and Ms. Durden were instrumental in bringing this program to Fletcher. Mr. Hester opined that the Challenge Day program “is all Cross-Cultural ESOL. It really breaks down the barriers of bullying, you know, racism, and sexism, and everything.” Mr. Hester was also working with Mr. Gilbert on his principal evaluation binder, which required case study. He told Mr. Gilbert that all of this work could fit the criteria for ESOL testing and evaluation credit. At that point, Mr. Gilbert liked the idea of banking the ESOL points for his recertification and okayed Mr. Hester’s plan to give him the credit. Mr. Hester stated that this was the extent of their discussion about ESOL and that he saw to it that Mr. Gilbert was awarded the credits. Mr. Gilbert testified that he subsequently retired and didn’t give much thought to the ESOL credit matter until he was contacted during the School Board’s investigation of Mr. Hester. Mr. Gilbert credibly testified that he relied on Mr. Hester’s knowledge of the ESOL certification criteria to accept the credits that Mr. Hester offered. Personal conflicts Mr. Gilbert testified that Mr. Hester came to Fletcher as a standards coach during his second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for Fletcher. Mr. Gilbert believed that Mr. Hester was very good at his job and was good for Fletcher. Mr. Hester was in a difficult spot because he was in a teaching position, not an administrative position, yet appeared to have authority over the regular faculty. Mr. Gilbert compared the friction caused by Mr. Hester’s job to other “quasi-administrative” positions such as athletic director and activities director. The employees are teachers but they are not in the classroom and they take care of administrative duties. These “quasi-administrative” teachers tend to ruffle feathers and are not popular with the rank and file teachers. Mr. Hester confirmed that it was hard at times to be the PDF at Fletcher because not all of the teachers liked doing what the District and the state required to maintain their professional standing, such as the preparation of lesson design notebooks. Several teachers testified about their personal conflicts with and unease about Mr. Hester and his role at Fletcher. Ms. Durden, for example, said that it was well known around the school that one did not want to get on the wrong side of Mr. Hester or he would make your life hell as a teacher. For his part, Mr. Hester agreed that most of the animosity toward him was due to his position at Fletcher but he also believed that certain of his accusers were motivated by homophobia, as he is an openly gay man. Ms. Harman testified that Mr. Hester once directed a very inappropriate joke to her. She stated that she entered Mr. Hester’s office one morning to ask him a question and found the room full of men, coaches mostly, who were talking and laughing. Mr. Hester said to the gathering, “I’ll ask Harman. Harman, do you know what Ballchinia is?” Ms. Harman said, “Ballchinia?” Mr. Hester said, “Yes, it’s a condition where you have balls on your chin. Gay men are prone to have it.” Ms. Harman testified that at that point she realized Mr. Hester was making a crude reference to oral sex for the amusement of the men in the room. She turned around and walked out. She testified that she did not immediately report the incident to anyone in authority, but that she did tell Mr. Gilbert about it at a later time, stressing the embarrassment Mr. Hester had caused her. She did not know whether Mr. Gilbert ever followed up on the matter. Mr. Gilbert denied that Ms. Harman ever came to him to talk about Mr. Hester telling a sexual joke that upset her. Mr. Hester was not questioned about this incident. Ms. Conrad testified that when she was on good terms with Mr. Hester, she would hang out in his office. A woman who was an assistant principal at the time was also in Mr. Hester’s office. Fletcher had just had its annual faculty Christmas party and Mr. Hester joked that one of the raffle prize drawings was “a blow job, and that if you were real lucky, it would involve gumming.” Ms. Conrad further testified that she was in Mr. Hester’s office when a woman arrived from “downtown,” the vernacular for the District’s central office. Ms. Conrad did not know this woman or what her prior relationship with Mr. Hester might have been. Mr. Hester was busy when the woman arrived. Mr. Hester addressed her as “sex kitten” and told her to just have a seat. The woman sat down. Ms. Conrad found it “shocking” that “she just went right along with it like it was nothing.” Ms. Conrad was also made uncomfortable by a comment Mr. Hester made regarding a photograph in the Fletcher school newspaper. A group of teachers was “kind of hanging out” near Mr. Hester’s doorway in the common area of the main office. Mr. Hester picked up a copy of the newspaper, the front page of which had a jokily posed photograph of an upper classman pushing a younger student into a locker. Ms. Conrad testified that Mr. Hester told the assembled group that he had taken the photo home and showed it to his partner, who thought it was a “turn- on” or “hot,” or “something like that.” This statement made the group uncomfortable. People tried to laugh it off and moved away from Mr. Hester as soon as possible. Despite believing that Mr. Hester’s statements were “out of line,” Ms. Conrad never told Mr. Hester she found them offensive and never reported them to Mr. Gilbert or anyone else in a position of responsibility. She testified that she didn’t know how well connected Mr. Hester was and was afraid to initiate a confrontation. She wasn’t sure to whom she could turn. “He was obviously very comfortable using inappropriate language in front of important people, like assistant principals and downtown personnel, so I didn’t know who he had connections with. . . . I felt it best at that time to just try to avoid him the best I could and go on with my business and stay away.” She noted that Mr. Hester was in charge of “the documentation and certification and the paperwork that keeps us legally teaching.” She feared retaliation if she reported his misbehavior. Ms. Conrad testified that it seemed understood around Fletcher that Mr. Gilbert was aware of “the types of things Dennis was doing and ignored them.” She described Mr. Gilbert as a “people person” who shied away from confrontation and did not want to deal with Mr. Hester’s behavior. Ms. Conrad also testified that Mr. Hester was doing a lot of Mr. Gilbert’s work for him, including preparation of the school budget. Therefore, the understanding around the school was that Mr. Hester was a privileged, protected person who could do as he pleased, “unchecked and unbalanced.” Ms. Durden similarly testified as “a really oppressive environment for the adults at Fletcher High School.” She described Mr. Gilbert as a good administrator who was, nonetheless, very dependent on Mr. Hester for many things. She was a new teacher at Fletcher and did not want to be on Mr. Hester’s “dark side.” She knew that complaining about him would put her in a bad spot. Mr. Gilbert testified that he once suggested to Ms. Durden that she place Mr. Hester on the committee to plan Challenge Day. Ms. Durden declined, stating that there would be too much “drama” with Mr. Hester trying to take things over. She also mentioned that she was somewhat in disfavor with Mr. Hester for unspecified reasons. Mr. Gilbert testified that Ms. Durden’s statement about “drama” with Mr. Hester did not ring a bell with him. Ashley Snell, an intensive reading teacher in her tenth year at Fletcher, testified as to an argument she had with Mr. Hester in September 2010. She stated that there was a non- ESOL class that the subject area teachers were required to take from Mr. Hester after school hours. Ms. Snell had two jobs at the time and was unable to stay after school. She went to Mr. Gilbert and asked for permission to take the class during school hours at the Schultz Center for Teaching and Leadership, a conference center where many of the District’s professional development classes are taught. Mr. Gilbert approved a “Temporary Duty Elsewhere” (“TDE”) permit for Ms. Snell and she signed up for the class at the Schultz Center. Ms. Snell testified that Mr. Hester called her down to his office after school. He yelled at her for going behind his back and asking permission to take the class elsewhere. He told her that she was going to ruin things for all the other teachers because he could not offer the class unless a certain number of people signed up for it. Ms. Snell stated that Mr. Hester got up from behind his desk and stood between her and the door, blocking her way out of the room as he yelled at her. She stated that he was in her face, cursing and screaming “How dare you,” saying that she had no right to do what she did and that she needed to sign up for his class. Ms. Snell testified that the next thing she knew, another teacher unlocked the back door to the office and she ran out and down to the classroom of Tina Reed, another teacher. Ms. Snell stated that she had never been talked to that way before and was hysterical and afraid. She reported the incident to Mr. Gilbert, but was unsure whether Mr. Hester was ever disciplined. She acknowledged that Mr. Hester later apologized to her. Mr. Gilbert testified that his office was a couple of doors down from Mr. Hester’s in the administrative wing but that he was not in his office when this incident occurred. Mr. Gilbert heard about it from his secretary and from Ms. Snell and Ms. Reed. His secretary told him that there was a lot of loud yelling and arguing behind Mr. Hester’s closed door. The students had gone home but staff was still present in the office. The secretary said it was “disturbing” and Mr. Gilbert saw that Ms. Snell was upset by it. At the time of the hearing, Mr. Gilbert could not remember what the incident was about, but he recalled telling Ms. Snell that he would address the matter and get back to her. Mr. Gilbert testified that he called Mr. Hester as soon as possible, either later that afternoon or the next day. Mr. Hester admitted there was an argument that got too loud, which Mr. Gilbert stated was not acceptable. He reminded Mr. Hester that his door was open any time there was a disagreement and they could come in and sit down with him and try to resolve it. Mr. Gilbert told Mr. Hester he was being given a “verbal warning”20/ and from that day forward was to have nothing to do with Ms. Snell. Mr. Gilbert would take care of all her assignments from that point forward. He also told Mr. Hester that he had to make a formal apology to Ms. Snell. Mr. Gilbert stated that he got back to Ms. Snell and told her how he had handled the matter and asked her to let him know if she had any more problems with Mr. Hester. He heard nothing further from Ms. Snell. Mr. Gilbert testified that Ms. Snell and Mr. Hester did not become best friends, but that he was aware of no further difficulties between them. Mr. Hester recalled the incident with regret, but disputed some of the details recited by Ms. Snell. He did not recall getting up from his desk and impeding her from leaving the office. He recalled standing on his side of the desk, Ms. Snell standing on the other side, and the conversation becoming “rather heated.” Mr. Hester was upset because he needed to get as many teachers as possible to take Content Area Reading-—Professional Development (“CAR-PD”) training at Fletcher, and there were just barely enough teachers signed up to offer the class. Mr. Gilbert would be unable to give TDE permits to ten or more teachers because the school would then be short-staffed. Ms. Snell’s action might have the effect of denying all the other teachers the ability to take the CAR-PD class at Fletcher. Mr. Hester was frustrated and their inability to agree on her course of action led to an argument. Mr. Hester conceded that “I lost my cool and told her to get the hell out of my office.” At that point, Ms. Snell called him “a fucking faggot.” This comment made Mr. Hester very upset. Mr. Gilbert met with Mr. Hester later that day and told him he could not yell at people like that. Mr. Hester told Mr. Gilbert about the “faggot” remark but Mr. Gilbert said, “I don’t care. . . . You’re a man. You should never talk to a woman that way.” Mr. Hester agreed that Mr. Gilbert was right. Mr. Hester readily agreed to apologize to Ms. Snell. When Ms. Snell walked past his office the next week, Mr. Hester called her in and told her he wanted to apologize for his unprofessional and disrespectful behavior. Ms. Snell stated that she was sorry as well. Mr. Hester testified that this was the last time they discussed the incident and he never had any further problem with Ms. Snell. Mr. Gilbert kept Mr. Hester from having any oversight of Ms. Snell, and Mr. Hester respected that order. Mr. Hester testified that this was the only time he ever had a heated argument with another teacher. Ms. Snell testified that she never called Mr. Hester a “faggot.” The investigation In January 2013, an anonymous letter was sent to School Board Superintendent, Nikolai Vitti; School Board Chairman, Fred “Fel” Lee; Human Relations (“HR”) Director, Sonita Young; and Fletcher High School Principal, Donald F. Nelson. The letter stated as follows, in relevant part: I hate to have to submit this as an “anonymous” letter. However, it is important that someone take action and there is a situation that must be addressed. I am currently assigned as a teacher at Duncan U. Fletcher High School. It is for this reason that I am choosing to send this letter anonymously. I am writing it as [sic] the request of several teachers who feel that the current situation cannot be allowed to continue. I do not want to be subjected to individual scrutiny. We have tried to address this with our school level administration (this year and in past years). However, we do not feel that it is being handled appropriately. The situation involves our Instructional Coach, Professional Development Facilitator and AICE Coordinator at Fletcher, Dennis Hester. Several faculty members have lodged complaints against him, yet he appears to be protected from any possible disciplinary consequences. The complaints that are generally listed are about how he treats members of our faculty unprofessionally. One teacher even went to the previous principal after being yelled at and “bullied” into a corner, and Mr. Hester was simply asked to make a verbal apology. That’s not enough in response to the repeated behavior that he displays. In fact, other teachers have said they have experienced the same behavior from Mr. Hester again this year. * * * Another example of his unprofessionalism points to ESOL. For a few years now, it has been known that if a Fletcher teacher is flagged and needs ESOL hours, just sign up for Hester’s class. He doesn’t require anything of you. You simply sign the papers in his office and you never attend a single session. He is supposed to be the Professional Development Facilitator, yet nothing about this seems professional. * * * These are only a handful of the situations that have taken place. Each teacher seems to have a story of his/her own regarding professionalism, ethics, support, etc. This situation at Fletcher has gotten out of hand. I would like to request that someone from Human Resources or Professional Development visit Fletcher and interview faculty members. As I mentioned before, there are several teachers who have requested that I write this letter and invite the district to intervene, as the traditional avenues haven’t proven effective. We love our school and many of us are long term faculty within the system and at this school. We are only trying to make Fletcher the best it can be. We look forward to seeing you at Fletcher in the very near future and welcome your involvement in the review of what is going on here. Mr. Nelson testified that when he receives such letters, he immediately calls in the affected employees. Because he could not meet with the anonymous author of the letter, he confined himself to meeting with Mr. Hester. They went over the letter paragraph by paragraph and Mr. Nelson made notes on his copy of the letter. After meeting with Mr. Hester, Mr. Nelson concluded that the matter was not much more than a “catfight” and suspected, correctly as it turned out, that the author of the anonymous letter was Laura Strickland, Fletcher’s media specialist and the sister-in-law of the School Board Chairman, Mr. Lee.21/ Mr. Nelson was aware that there were some ongoing personal issues between Mr. Hester and Ms. Strickland. She believed that Mr. Hester was “holding back” the paperwork for her professional development credits for 2012 and she had written a string of increasingly agitated emails to Mr. Lee complaining of this and other high-handed actions by Mr. Hester. Mr. Hester testified that Ms. Strickland was one of about ten Fletcher teachers, including Mr. Gilbert, who failed to submit their paperwork on time and were thus late in obtaining their professional development credits. After talking to Mr. Hester, Mr. Nelson decided to take no further action at the school level, as most of the allegations concerned matters that occurred during Mr. Gilbert’s time as principal of Fletcher. He spoke with Ms. Young, who confirmed that her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the Professional Standards office of the HR Department. Mr. Nelson told Ms. Mickel that he believed the letter was a vendetta by the anonymous author against Mr. Hester. Ms. Mickel summarized her meeting with Mr. Nelson in an email to Ms. Young, dated February 6, 2013, which stated as follows, in relevant part: When asked if this is a pattern of behavior for Mr. Hester, who was accused of displaying unprofessional behaviors in several instances, the principal replied that it is not. Principal Nelson also stated that he believed that these “hodge- podge, shot in the dark” accusations are a means to hurt Mr. Hester, by someone who does not care for him and has a personal vendetta. The principal also stated that he believed that it was one of two people who wrote the anonymous letter. [Mr. Nelson named Ms. Strickland and Ms. Johnson as the likely authors.] * * * When the principal received the letter, he met with Mr. Hester to address each issue of alleged unprofessional behaviors below: Treats other members of the faculty unprofessionally-— Mr. Nelson stated that he has not observed any unprofessional behavior towards other faculty members, nor has anyone come to him with complaints. * * * If a teacher was flagged for needing ESOL hours, Mr. Hester does not require anything from teachers accept [sic] to sign papers in his office-— Mr. Hester’s response to the principal was that Karen Patterson, ESOL Professional Development Office, approved all courses. (Office of Professional Standards made recommendation to principal to obtain records of sign-in sheets and records of Professional Development requests with approval from Karen Patterson’s office to have on hand.) A string of District emails entered into evidence indicates that the matter continued to percolate during the spring of 2013, primarily via a series of signed email complaints from Ms. Strickland to Mr. Lee, who forwarded them to Dr. Vitti. An email from Dr. Vitti to District ESOL director Christine Dahnke, dated April 28, 2013, states as follows: I need someone to look into ESOL endorsement at the school. Apparently there is an individual who has been hired there to provide ESOL endorsement training for teachers. Training is not occurring but teachers still receive endorsement. There may be no substance to this but it continues to be raised as a concern by teachers. Ms. Dahnke forwarded the emails to Ms. Young, who in turn sent the following email to Ms. Jackson and Ms. Mickel on May 2, 2013: Josephine—- This continues to come up. We received an anonymous complaint earlier this year and Mary spoke to the principal. We now need to conduct an official investigation to include interviews with appropriate personnel. Thanks. The matter was assigned to Professional Standards investigator Jessica Altman. Mr. Nelson testified that in late May, teachers began coming forward to speak with him about their experiences with Mr. Hester. The first was Tina Reed, the teacher who had assisted Ms. Snell in her confrontation with Mr. Hester. Ms. Reed brought in Ms. Snell and another teacher, Joy Chalker, to Mr. Nelson's office. During their discussion with Mr. Nelson, the teachers stated that there were others who were afraid to come forward because nothing had been done when they had complained in the past. Mr. Nelson told them that any charges against Mr. Hester would have to be made in writing, and that they should encourage the other teachers to submit written statements. Mr. Nelson testified, “I was dealing with teachers that felt that their voice wasn’t heard before, so I felt in order to give them some comfort, they could tell the other teachers to please put it in writing.” Each of the three teachers who met with Mr. Nelson submitted a written statement, which Mr. Nelson forwarded to HR. More teachers came forward and submitted written statements, eight or nine in total, all of which Mr. Nelson forwarded to HR. Mr. Gilbert testified that he never noticed that teachers were reticent to speak with him about Mr. Hester. He denied there was a climate of fear at Fletcher as regards Mr. Hester. Ms. Durden certainly did not hesitate to tell Mr. Gilbert what she thought of his proposal to place Mr. Hester on the committee for Challenge Day. Mr. Gilbert stated that he was known for literally having an open door to all Fletcher employees, but that no teacher ever came to him with any problem concerning ESOL. Mr. Gilbert testified that, far from protecting or coddling Mr. Hester, he was harder on Mr. Hester than on most other people on staff at Fletcher.22/ He would edit emails that Mr. Hester wanted to send to the entire faculty and would “kind of jump on him” about not getting data into the principal’s office fast enough. Mr. Gilbert would have to rein in Mr. Hester on things such as changing the way the students marched at graduation, but he described these as minor incidents. Mr. Gilbert disagreed that Mr. Hester could make a teacher’s life miserable if the teacher crossed him. Mr. Hester had no authority to discipline teachers at Fletcher. Mr. Gilbert noted that the District, not Mr. Hester, is the ultimate arbiter of professional development points. Mr. Hester facilitated the preplanning and training day workshops held at the school, but his authority over those matters was limited to turning in the paperwork to the District. Josephine Jackson is the executive director of the District’s Professional Standards office. She assigned Ms. Altman to investigate the complaint against Mr. Hester. Ms. Jackson also serves as the District’s equity officer, addressing violations of nondiscrimination laws and policies. Ms. Jackson testified that she first met Mr. Hester when her office called him in to discuss the concerns that had been raised about the endorsements for ESOL classes. Ms. Jackson stated that this was a brief meeting at the end of the day. She told Mr. Hester there had been accusations of discrepancies in awarding endorsements to teachers and asked whether he could provide documentation as to what classes were held, who attended them and what was the course content. Mr. Hester told her that he believed there was a group of people at the school who had targeted him because of his sexual orientation. Ms. Jackson told him that such behavior was intolerable and would be dealt with by her office. She asked Mr. Hester to provide names and examples of things that had been said to him. Ms. Jackson testified that she had no more in-person meetings with Mr. Hester but that they communicated via email. Mr. Hester did submit to her secretary a small packet of ESOL information with attendance sheets and checkmarks,23/ but he never provided any information about the alleged sexual orientation targeting. Mr. Hester conceded that he did not bring to Ms. Jackson any information to substantiate his allegation that he had been targeted because of his sexual orientation. He did note that the investigative report included insinuating statements made to the investigator by Ms. Durden, who spoke of Mr. Hester having young male teachers at his house in the evenings. Mr. Hester also noted a statement by Ms. Conrad that she would walk by his office and see the door closed as he “courted” young male students.24/ Mr. Hester wondered why such irrelevant comments were included in the investigative report. He noted that the teachers at his house were Mr. Corey and Mr. Davis, the coaches with whom Mr. Hester was working on alternative certification, and that Mr. Corey’s wife often accompanied him. He also denied “courting” male students, stating that such behavior would be criminal and that he was not a pedophile. Mr. Hester stated that he takes a lot of pride in his job and tries very much to be a professional. He noted that homosexuality is still not “really accepted” in society and that it can become a touchy situation in terms of classroom management. He took great offense at the insinuations of these teachers being made part of the District’s investigative report. In her defense, Ms. Durden testified that she is gay and had no problem with men going to Mr. Hester’s house. Her point was that Mr. Hester should not have been coaching alternative certification teachers at his house before they were on the faculty of Fletcher High School. Ms. Durden’s testimony on this point was not persuasive. The clear suggestion of her statement to the investigator was that assignations may have been taking place at Mr. Hester’s house. Ms. Snell testified that one day she was in Ms. Reed’s classroom working on planning with Ms. Reed when the phone rang. Ms. Reed answered on speakerphone. Mr. Hester was on the line. He said that he was just leaving downtown, where someone had told him there was a possible investigation into ESOL. He told Ms. Reed not to worry about it. He had taken care of it, but was going to give some backdated paperwork to Ms. Reed’s daughter to deliver to Ms. Reed. Mr. Hester stated that he thought the investigation was stemming from “either Laura Strickland or the dumb bitch, Joy Chalker, who could possibly be the two that filed the anonymous letter.” Mr. Hester denied that he phoned Ms. Reed to tell her that he had taken care of anything or had backdated ESOL documents. Mr. Hester testified, “I knew [Ms. Reed] was part of the anonymous letter. Why would I call her about it?” It does not seem credible that Mr. Hester would phone a known adversary to discuss a plan to fraudulently cover his tracks on the ESOL endorsements, particularly when the discussion is alleged to have taken place over a speakerphone. Ms. Snell’s testimony on this point appears to be fabricated, which calls into question the entirety of her testimony save that which Mr. Hester and Mr. Gilbert corroborated.25/ Mr. Nelson testified that Mr. Hester came by his office a few times to inquire about the status of the investigation. Mr. Nelson forwarded the inquiry to Ms. Jackson, who declined to comment because the investigation was ongoing. Mr. Nelson relayed this information to Mr. Hester. Mr. Nelson testified that Mr. Hester never suggested that homophobia was the motivating factor in the teachers’ complaints against him. Mr. Nelson stated that he would have immediately notified the investigator had Mr. Hester made such a statement to him. Mr. Davis testified that around May 21, 2013, he had a conversation with Mr. Hester in the Fletcher parking lot. Mr. Hester was upset. Mr. Hester stated that Ms. Reed, Ms. Snell, and Ms. Chalker “needed to watch their back because he was going to go after them” for writing an anonymous letter about him. Mr. Hester stated, “You never want to piss off a gay man” and cautioned Mr. Davis to distance himself from the three women to avoid becoming “collateral damage.” Mr. Hester recalled the parking lot conversation. He told Mr. Davis, “I’m under investigation. If anyone asks you anything, don’t lie.” Mr. Hester conceded that he was “very heated” about the situation in which he found himself. He did tell Mr. Davis that Ms. Snell, Ms. Reed, and Ms. Chalker had written the anonymous letter. Mr. Hester testified that he gleaned his erroneous attribution of authorship “just from my knowledge and from information that I had received from some other people.” Mr. Hester further conceded that he told Mr. Davis that he was going after the women and would not feel bad about anyone who gets caught in the collateral damage. Mr. Hester conceded that he told Mr. Davis, “You never want to piss off a gay man.” Mr. Nelson testified that during the period of the investigation and Mr. Hester’s subsequent dismissal, the District assigned several new employee positions to its secondary schools. One of those new positions was “testing coordinator.” Mr. Nelson intended to give the job to Mr. Hester. Because Mr. Hester was fired, Mr. Nelson gave the position to Ms. Reed. Based on his own exposure to Mr. Hester’s work, Mr. Nelson believed that Mr. Hester was effective in his position and was an asset to Fletcher High School. Ms. Jackson testified that at the time of the investigation, she understood that Mr. Hester was unique in marking people present for classes they did not physically attend. She stated that after the determination to fire Mr. Hester was made, the District continued to investigate “because it became clear that this may have been an issue that was broader than the number of people that we had spoken with during the course of the investigation.” Summary of findings Mr. Hester has been accused of “displaying unprofessional behavior toward and in the presence of colleagues” and “repeatedly provid[ing] ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The evidence presented at the hearing established that Mr. Hester displayed unprofessional behavior toward and in the presence of colleagues. He admitted to having a shouting match with Ms. Snell that could be heard outside the closed doors of his office. Even crediting Mr. Hester’s testimony as to the extreme provocation provided by Ms. Snell, his actions were unprofessional. Ms. Harman’s undisputed testimony described a lewd joke Mr. Hester told to her in front of a group of male colleagues, to her profound embarrassment. Ms. Conrad described witnessing three separate incidents of unprofessional conduct by Mr. Hester, all of which involved sexual innuendo of varying degrees of egregiousness. There is no question that Mr. Hester was feared by at least some teachers on the Fletcher campus. Though Mr. Gilbert accurately stated that Mr. Hester was merely a teacher and had no control over other teachers’ jobs, as a practical matter Mr. Hester had the power to seriously affect careers by providing or withholding professional development credits. Mr. Hester was capable of “going after” teachers who had crossed him without regard for “collateral damage.” The evidence regarding the ESOL endorsements was not as straightforward or overwhelming as the School Board alleged. The School Board’s ESOL classroom requirements were elastic enough to provide for shortened “emergency” and “hybrid” courses when the crush of teachers needing ESOL credits became too much. Vacations abroad qualified for Cross-Cultural Communication ESOL credit. Of the most relevance to this case was the School Board’s practice of allowing teachers to obtain ESOL credits via “independent study” supervised by a PDF. The School Board’s most serious allegation against Mr. Hester is that he intentionally falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. The evidence established that Mr. Hester accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. The evidence further established that this method of accounting for the work performed by independent study students was also used by Ms. Patterson and apparently by all PDFs in Duval County. Ms. Jackson’s statement that “this may have been an issue that was broader than the number of people that we had spoken with,” in conjunction with Ms. Patterson’s testimony, effectively conceded that the allegations of falsification of documents by Mr. Hester was without basis. The evidence presented at the hearing established that, whether or not his actions were within his actual authority to conduct independent studies and award ESOL credit, Mr. Hester at all times believed that he was acting as authorized by Ms. Patterson. Even crediting Ms. Patterson’s testimony that she lacked the authority to authorize independent study projects, there is nothing in the record to gainsay Mr. Hester’s reasonable belief in Ms. Patterson’s apparent authority. Documentary evidence indicated that Ms. Patterson’s authority to approve independent study projects was taken for granted not only by Mr. Hester but by the District’s Supervisor of Certification, Kella Grant. Mr. Hester’s contention that the January 23, 2013, email from Ms. Patterson marked a change in policy was well founded. However, the power to approve independent study projects and the delegation of that approval power to Mr. Hester mark the outer limits of the reasonableness of Mr. Hester’s belief in Ms. Patterson’s authority. It was not reasonable for Mr. Hester to believe, based on the novel example of the Chets Creek teachers,26/ that Ms. Patterson had conveyed or could convey to him the independent authority to award ESOL credits for anything other than completion of ESOL coursework. Mr. Hester had no reasonable basis to believe in his authority to award ESOL credit by his “alternative delivery” method. Mr. Hester determined that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit though she performed no independent study and received no instruction in the coursework. Mr. Hester gave Ms. Durden credit for a Cross- Cultural ESOL class based on her work on Challenge Day and on pre-planning in-service courses. Ms. Durden performed no independent study and received no instruction in the coursework for the Cross-Cultural ESOL class. Mr. Hester also gave Mr. Gilbert ESOL credit for Challenge Day, as well as for his work in testing and evaluation and his principal’s evaluation binder, none of which involved ESOL coursework. Mr. Gilbert testified that he relied entirely on Mr. Hester’s expertise in accepting the ESOL credits. Though Ms. Murrell and Mr. Hester differed dramatically on the details of their interaction, there was no dispute that Mr. Hester awarded her credits for two ESOL courses despite her never taking either an ESOL course or an active independent study program from him. Mr. Hester’s sole basis for awarding the credits was his determination that Ms. Murrell’s work as a teacher met the competencies of the ESOL classes. In like fashion, even if Mr. Hester’s disputed version of his interaction with Ms. Johnson is fully credited, the undisputed fact remains that Mr. Hester awarded her ESOL credits for her work with PLC groups, her status as an AICE, and her lesson design notebook, not for any ESOL coursework she performed. Mr. Hester’s version of events involving Ms. Kopp is credited. The evidence established that Ms. Kopp performed independent studies with Mr. Hester in 2009 and 2010, despite her testimony to the contrary. Mr. Hester’s version of events involving Mr. Corey is credited. It is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the fact of having received the work for which he credited both of the Coreys. However vague his recollection, Mr. Davis testified that he performed independent study projects for each of the five ESOL courses for which Mr. Hester gave him credit. Ms. Harman was not a credible witness and no findings against Mr. Hester should be based on her testimony. Mr. Hester’s version of events involving his interactions with Ms. Harman is reasonable and supported by the documentary evidence. Ms. Conrad’s contention that Mr. Hester offered her ESOL credit merely for being a coach was belied by the documentary evidence showing that Mr. Hester in fact offered her several legitimate options for obtaining ESOL credit. Ms. Conrad performed an independent study and legitimately received ESOL credit. In summary, five teachers, Ms. Andrews, Ms. Durden, Mr. Gilbert, Ms. Murrell, and Ms. Johnson, were awarded ESOL credits by Mr. Hester based on an “alternative delivery” method that he was not authorized to use and that he could not reasonably have believed he was authorized to use. Mr. Hester has potentially damaged these teachers professionally, should their ESOL credits be disallowed based on Mr. Hester’s actions. There was no evidence that Mr. Lee, the School Board Chairman, took an active part in initiating or conducting the investigation of Mr. Hester. The evidence did establish that it was well known in the District that Ms. Strickland is Mr. Lee’s sister-in-law, but it would be speculative to find that her complaints carried more weight than their substance merited. No sexual improprieties were alleged against Mr. Hester, unless one counts locker room jokes made to fellow teachers. There was, therefore, no reason for the School Board’s investigator to include the insinuating comments of Ms. Durden and Ms. Conrad in her report. The School Board should be sensitive to the still-tenuous position of its gay employees in both the school setting and the larger society and should be more vigilant to exclude such damaging irrelevancies from its official documents. The evidence established that Mr. Hester was somewhat self-aggrandizing and given to interpersonal intrigue among his colleagues at the school. He obviously had enemies at Fletcher. Mr. Hester also wished to appear omnicompetent in his field. Some of his problems appeared to stem from this desire to impress fellow teachers with his wizardry in the area of professional development. Rather than explaining to them in drab detail exactly how he was providing them with ESOL credit, Mr. Hester would airily proclaim that he was “taking care of it.” This practice led to confusion and unease and goes some way toward explaining why even those “phenomenal” teachers who bore Mr. Hester no real grudge were not especially friendly toward him in their testimony.27/ However, the evidence also established that Mr. Hester was extremely accomplished as a trainer and designer of training programs. He was selected to redesign the District’s alternative certification program to include an ESOL component and he was the developer of the District’s hybrid ESOL course. He worked tirelessly, teaching ESOL courses after school and doing independent studies with teachers such as Mr. Tracy over the Christmas holidays, if such was necessary to maintain their certification. If anyone in the District was qualified to determine that a teacher should receive ESOL credit for the type and quality of her work in the classroom, it was Mr. Hester. The School Board presented no evidence of prior discipline against Mr. Hester and acknowledged that the default position for first time disciplinary actions is progressive discipline. The School Board proved its allegation that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” However, the School Board did not prove that Mr. Hester intentionally falsified records, otherwise engaged in fraudulent activities, or took any action indicating a guilty conscience. Mr. Hester believed, unreasonably but honestly, that he had the authority to award ESOL credits to the five teachers discussed above based on his “alternative delivery” method. Whether Mr. Hester’s mistaken understanding of his authority constitutes such a severe act of misconduct as to merit circumvention of the established progressive discipline procedure is ultimately the School Board’s decision. It appears to the undersigned that the District would not be well served if it were to simply jettison such a tremendous source of information and support based on the allegations proven at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order finding Dennis Hester guilty of misconduct in office and imposing the following sanctions: uphold Respondent's suspension without pay from July 3, 2013, through the date of the final order and issue a written reprimand to Respondent. DONE AND ENTERED this 7th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2015.
The Issue Whether the respondent should be reassigned to the Opportunity School?
Findings Of Fact Joseph Hernandez attended Glades Junior High School during the 1984-85 school year. During that period of time, he had numerous referrals to the guidance counselor and assistant principal. He cut class, he was disruptive in class, he had a very short attention span, he would not follow instructions, and he was physically abusive to smaller children. Respondent was very disruptive in art class. He destroyed art material, and he would push and shove other students. On occasion, Joseph would sneak out the back door of the art room and skip the rest of the class. He also would take a bathroom pass and then use it later in the day. On one occasion Mr. Clark observed the respondent grab a smaller child by the child's head and lift the child off the ground. When respondent was told to release the child, he refused to do so. Joseph's grades at Glades Junior High were not much better than his behavior. He received a "B" in woodshop, a "B" in math, a "C" in physical education, a "C" in art, an "F" in language arts and an "F" in social studies. Joseph was in a low level math class but all the other classes were regular level. Joseph was capable of performing the work in a regular classroom and probably should have been in a regular level math class. Joseph did not have any desire to move out of lower level math. When his math teacher stated in front of the class that Joseph had done so well he would be placed in a regular math class the following year, he got very upset. He told the teacher that if she put him in a regular class he would flunk and she would think of him every night and feel guilty. When the teacher responded, "I think of all my students every night before I go to bed." Joseph replied, "You must not have any wet dreams." The guidance counselor at Glades held several guidance sessions with Joseph and his father. Joseph had no serious psychological problems, but he was unstable and needed guidance. On a one-to-one basis, Joseph was quite personable. However, he liked to be the center of attention. The personnel at Glades Junior High believe that Joseph would be much better off in the smaller classes offered at the alternative school. Joseph enrolled in West Miami Junior High for the 85-86 school year. Joseph's behavior at West Miami was no better than his behavior had been at Glades. He rebelled against authority, he showed up late for class, he was rude to the teachers, and he would come to class without any books or materials. On September 19, 1985, he was referred to indoor suspension for three days due to his disruptive behavior. However, he refused to follow the SCSI rules and therefore was on indoor suspension ten days rather than the original three. Joseph not only disrupted his own classes, he disrupted other classes. One day he sauntered into a seventh grade computer class, walked around the room, and said that he had come to fix the air conditioning. He refused to leave the classroom when the teacher told him to leave and was quite arrogant. Finally, when he was ready, he left the room. On November 6, 1985, Joseph was assigned to the alternative school, but he never attended. Therefore he was carried on the rolls of West Miami Junior High School throughout the semester. Of the ninety days in the semester, Joseph was in class for a total of 13 days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of the respondent to the alternative school program at Douglas McArthur Senior High School-South. DONE and ENTERED this 26th day of March, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986. COPIES FURNISHED: Mark A. Valentine, Esq. Assistant School Board Attorney 3050 Biscayne Boulevard Suite 800 Miami, FL 33137-4198 Mr. Pedro L. Hernandez 10001 West Flagler Street Lot #L1214 Miami, FL 33174 Madelyn P. Schere, Esq. Ms. Maeva Hipps 1450 N.E. Second Avenue, Ste. 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, F1 33132
The Issue Petitioner, Florida Education Association ("FEA"), filed a Petition to Invalidate Administrative Action pursuant to Subsection 120.56(4)(a), Florida Statutes (2004), challenging the validity of a Technical Assistance Paper issued by the Florida State Board of Education, Department of Education, Student Achievement, Bureau of Student Assistance ("BOE"), alleging that it is an unpromulgated rule. The challenged Technical Assistance Paper dated March 2005, is titled "Modifications to the Consent Decree in the League of United Latin American Citizens et al. v. The State Board of Education, 1990."
Findings Of Fact Petitioner, FEA, is an employee association representing over 100,000 Florida educators, including teachers certified to teach English for Speakers of Other Languages (ESOL), for collective bargaining, representation in administrative and legal proceedings, professional development, and political activity. FEA's standing to bring this challenge was stipulated. Respondent, BOE, is an "agency" within the meaning of Subsection 120.52(1)(b), Florida Statutes (2004). BOE is generally responsible for oversight of public education in the State of Florida and is specifically responsible for administering the legislative plan of professional certification of Florida's public school educators. §§ 1008.32 and 1012.56, Fla. Stat. (2004). The BOE memorandum is challenged as an unpromulgated rule. While other documents containing the same information in different formats were circulated by individual school districts to educators, the parties agree that this Technical Assistance Paper fairly represents the substance of the issues in this dispute. It was stipulated that the Technical Assistance Paper has been made generally available to Florida educators. The content of the Technical Assistance Paper is not in question and is set forth below. In 1990, the League of United Latin American Citizens and 14 other organizations and individuals (collectively referenced here as "LULAC") brought suit in the United States District Court for the Southern District of Florida against the BOE, as it was then constituted, and other state officers, claiming that the Department of Education's ESOL standards violated federal and state law. The federal laws allegedly violated included the Equal Educational Opportunity Act, 20 U.S.C. 1703(f), and Title VII of the Civil Rights Act of 1964. On August 14, 1990, Judge James Lawrence King entered a Consent Order approving a settlement agreement. The Consent Order provided that the court would retain jurisdiction for the purpose of overseeing the implementation of the settlement agreement. Section IV of the settlement agreement, titled "Personnel," set forth the standards for certification of personnel to teach ESOL students. Two means for obtaining ESOL certification were established. "ESOL Endorsement" is a rider that may be obtained by a teacher already certified in another subject by completing 300 hours or 15 semester hours in ESOL. "ESOL Subject Area Coverage" requires a bachelor's or master's degree in Teaching English for Speakers of Other Languages ("TESOL") and a passing score on the ESOL subject matter examination. To implement Section IV of the settlement agreement, BOE amended its existing ESOL certification rule, Florida Administrative Code Rule 6A-4.0244, and adopted a new rule, Florida Administrative Code Rule 6A-4.0245. The rules provide: 6A-4.0244 Specialization Requirements for the Endorsement in English to Speakers of Other Languages -- Academic Class. Plan One. A bachelor's or higher degree with certification in another subject, and Fifteen (15) semester hours in English to speakers of other languages (ESOL) to include credit in each of the areas specified below: Methods of teaching English to speakers of other languages (ESOL), ESOL curriculum and materials development, Cross-cultural communication and understanding, Applied linguistics, and Testing and evaluation of ESOL. Plan Two. The endorsement in English to speakers of other languages will be added to a valid temporary or professional certificate when an individual completes the following: Holds a valid Florida educator's certificate with a coverage specified as appropriate in the 1989-90 Course Code Directory as adopted by reference in Rule 6A-1.09441, F.A.C., for teaching English to limited English proficient students. Documents at least two (2) years of successful teaching of English to limited English proficient students using ESOL strategies. The successful teaching shall have been gained prior to July 1, 1990, and verified in writing by a Florida district school superintendent. The endorsement will be retained on the professional certificate when an individual completes three (3) semester hours of college credit or sixty inservice points which are part of a district master plan for inservice education. The college credit or inservice points shall be completed for the first certificate renewal after July 1, 1990, and must be completed from the area(s) specified below. Methods of teaching English to speakers of other languages (ESOL), ESOL curriculum and materials development, Cross-cultural communication and understanding, Applied linguistics, and Testing and evaluation of ESOL. In the event the college credit or inservice points are not completed during the first renewal period, the endorsement will be deleted from the certificate. 6A-4.0245 Specialization Requirements for Certification in English for Speakers of Other Languages (Grades K-12)--Academic Class. A bachelor's or higher degree with an undergraduate or graduate major in English to speakers of Other Languages shall satisfy the specialization requirements for certification in English to speakers of Other Languages (Grades K-12). In 2002, the Florida Legislature enacted the "Florida K-20 Education Code," which included Section 1012.56, Florida Statutes (2004), setting forth revised educator certification requirements. See Chap. 2002-387, Laws of Florida, § 728. Among those requirements were the following: MASTERY OF SUBJECT AREA KNOWLEDGE.-- Acceptable means of demonstrating mastery of subject area knowledge are: Achievement of passing scores on subject area examinations required by state board rule; Completion of the subject area specialization requirements specified in state board rule and verification of the attainment of the essential subject matter competencies by the district school superintendent of the employing school district or chief administrative officer of the employing state-supported or private school for a subject area for which a subject area examination has not been developed and required by state board rule; Completion of the subject area specialization requirements specified in state board rule for a subject coverage requiring a master's or higher degree and achievement of a passing score on the subject area examination specified in state board rule; A valid professional standard teaching certificate issued by another state; or A valid certificate issued by the National Board for Professional Teaching Standards or a national educator credentialing board approved by the State Board of Education. * * * STATE BOARD RULES.--The State Board of Education shall adopt rules pursuant to ss. 120.536 and 120.54, as necessary to implement this section. PRIOR APPLICATION.--Persons who apply for certification are governed by the law and rules in effect at the time of application for issuance of the initial certificate, provided that continuity of certificates is maintained. BOE did not amend Florida Administrative Code Rules 6A-4.0244 and 6A-4.0245 to reflect the new statute's provisions. In January 2003, the LULAC plaintiffs filed a motion for a temporary restraining order and order to show cause for a preliminary injunction. The plaintiffs alleged that pursuant to Subsection 1012.56(4)(a), Florida Statutes (2004), the Department of Education intended to permit teachers to become certified to teach basic ESOL courses based solely on an examination, without completion of the coursework required by the settlement agreement and, therefore, in violation of the August 14, 1990, Consent Order. On September 2, 2003, the parties executed a "Stipulation Modifying Consent Decree," which provided, in relevant part: On August 14, 1990, this lawsuit was settled and a Settlement Agreement was approved as an order of the Court. On January 17, 2003, Plaintiffs' [sic] moved to enforce the terms of the Consent Decree and on February 28, 2003, the Court ordered the parties to commence mediation immediately. On April 25, 2003, the parties participated in mediation before former United States District Judge Edward B. David, in Miami, Florida. This is the first modification that the parties have sought of the original Consent Decree. The parties agree to modify the Consent Decree with respect to § IV (Personnel), as set forth herein. Nothing herein is intended to diminish any option for endorsement or coverage set forth in the August 14, 1990, Decree. Rather, this stipulation sets forth an additional means by which a certified teacher may obtain ESOL subject area coverage. It also establishes training and/or educational requirement [sic] for persons holding administrative and guidance counselor positions. All other requirements of § IV that are not inconsistent with this modification continue. A certified teacher may obtain ESOL subject area coverage by virtue of passing a state approved ESOL certification examination. Any teacher who receives coverage in ESOL through this option shall be required to obtain 120 hours of in-service training or continuing education in ESOL-approved courses within a three (3) year period of the date of their receipt of ESOL certification. This requirement includes those who have already been certified under the proficiency test method. Any ESOL-approved in-service hours and course work taken prior to gaining ESOL certification may be counted toward the required 120 post-certification hours. Defendants shall require that school administrators and guidance counselors be required to obtain sixty (60) [hours of] in- service training or continuing education in ESOL-approved courses within a three (3) year period of the effective date of this Stipulation. Any school administrators and guidance counselors hired after the effective date of this Stipulation shall have three (3) years from the date of being hired to meet this requirement. Any ESOL- approved in-service hours and course work taken prior to the effective date of this Stipulation or prior to hiring may be counted toward the required sixty (60) post-certification hours. The Department shall inform all districts of this modification within thirty days of court approval. It shall further require all districts to develop reasonable procedures to assure that all affected personnel are making regular progress in meeting its terms, which shall be reviewed in monitoring visits. No ESOL certificate shall be renewed for any teacher that obtained ESOL subject area coverage through the option described in ¶ 2 who has not completed the requisite training within three (3) years. * * * 8. This Stipulation shall become an addendum to § IV of the Consent Decree, and shall have the full force of the Consent Decree after approval by the Court. To the extent that anything herein is incompatible with the Decree, this Stipulation shall govern. * * * 11. The Defendants agree to commence rulemaking if necessary to effectuate the terms of the Stipulation within ninety (90) days of Court approval. As the quoted text makes apparent, the stipulation appends a 120-hour in-service training or continuing examination requirement to the examination-only certification scheme authorized by Subsection 1012.56(4)(a), Florida Statutes (2004). Additionally, the stipulation appears to contradict the "grandfathering" provision of Subsection 1012.56(13), Florida Statutes (2004), by making the continuing education requirement applicable even to those teachers already certified under the examination-only method. On September 9, 2003, United States District Judge Federico A. Moreno of the Southern District of Florida signed an Order approving the Stipulation Modifying Consent Decree. The court again retained jurisdiction of the case to oversee the implementation of the Stipulation Modifying Consent Decree. Pursuant to paragraph 4 of the Stipulation Modifying Consent Decree, BOE notified school districts of the new requirements for ESOL certification. This notification was accomplished by way of the disputed Technical Assistance Paper, which provides: MODIFICATIONS TO THE CONSENT DECREE IN THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS ET AL. V. THE STATE BOARD OF EDUCATION, 1990
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, Manatee County School Board, had just cause to terminate Respondent's employment as a teacher.
Findings Of Fact The Parties Respondent has been employed as a teacher by the School Board since August 15, 1995. As a member of the School Board's instructional staff, Respondent's employment is subject to Section 1012.33, Florida Statutes (2008),1 which provides that her employment will not be terminated except for just cause. The School Board is a constitutional entity charged with the duty to operate, control, and supervise the public schools within the School District. Exceptional Student Education Exceptional Student Education covers a range of students who have individual needs that must be addressed by a specific plan for education, called an Individual Education Plan. The drafting and maintenance of IEPs is governed by federal and state law. The government may complete audits of district ESE records from time to time, although audits are not completed every year. However, the School District self-reports ESE compliance issues to the government. IEPs are valid for one year and must be rewritten annually, although not necessarily coinciding with the beginning of each school year. Generally, a draft form of the IEP is prepared and taken to an IEP meeting to be reviewed by individuals who are involved with the student's education ("IEP team"), including ESE teachers, regular education teachers, guidance counselors, and parents. Although everyone who is directly involved with the student's education is invited to the IEP meeting, it is not necessary that each individual attend for the IEP to be valid. For instance, if parents or service providers do not attend, the IEP is not invalid. All members of the IEP team attending the IEP meeting are required to sign a signature page indicating their attendance. The parents of the students are legally entitled to two notices of the IEP meeting, the first being at least ten days prior to the meeting. The notice can be written or verbal, but should be documented in the ESE file. Parents may waive their right to ten days' notice of the hearing. One person is assigned as the school's Local Education Agency (LEA). An LEA must be present at all IEP meetings which are required to ensure that ESE guidelines are followed. Students are required to be evaluated by service providers, such as speech-language pathologists, psychologists, social workers, and occupational therapists and to be re-evaluated every three years. The re-evaluation must be completed within three years from the calendar date of the earliest testing completed in the previous evaluation or re-evaluation. Each service provider is expected to review the file and to complete a re-evaluation. However, a re-evaluation is not required if the student's IEP team determines that such re-evaluation is not needed. Furthermore, re-evaluations are not required to draft an IEP. Prior to any testing, evaluation or re-evaluation of a student, the consent of the parent must be obtained. The consent forms are valid for one year after the parent's signature is obtained. Each student receiving ESE services should have a file which includes documentation, such as his/her IEP. Students who have more than one exceptionality (such as speech-language) will often have more than one file housed in the ESE office. Also, students who have been receiving ESE services for a long period of time often require more than one file folder to contain all of the documents. The School District obtains funds from the government based upon the ESE status of the students in the district. Students who receive ESE services are given more funding than students in regular classes. The funding is allocated on a per-student basis, and ESE students receive different levels of funding depending on the classification of their disabilities. In order to qualify for the funds, IEP and other relevant documents must be in compliance with certain guidelines referred to as FTE or "full time equivalent." There are two FTE periods during each school year wherein the ESE files must be compliant in order to obtain funds; the first one is in October and the second one is February. Respondent's Employment at Haile Middle School Respondent has been employed by the School Board as a teacher for 13 years. For the past several years, and at all times relevant to this proceeding, Respondent was an ESE teacher at Haile. In 2005-2006, after the preceding ESE department chair was transferred to another school, Janet Kerley, principal at Haile, asked Respondent if she would serve as the ESE department chair. Respondent accepted the job and had served continuously as ESE department chair until early February 2008. While serving as ESE chair, Respondent continued to work as an ESE teacher, and her position was designated as such by the School Board. As ESE department chair at Haile, Respondent received a stipend.2 In 2005-2006, when Respondent first became the ESE department chair, her work day was divided evenly between teaching her scheduled ESE classes and ESE department chair duties. Training for ESE Chair Position No special training was provided for Respondent to serve as ESE department chair. The School District assigned an ESE specialist to each secondary school, including Haile. The ESE specialist's role was to provide support to the ESE department chair. However, ESE specialists had no supervisory responsibilities for the ESE department chair. In the 2006-2007 school year, Emma Mileham, the ESE specialist assigned to Haile that year, gave Respondent a checklist titled, "ESE Department Chair Responsibilities." She also distributed "monthly mind joggers," titled, "ESE Teacher Activities." The checklist of the department chair's responsibilities included reviewing ESE files. During the 2007-2008 school year, Amy Lloyd, the ESE specialist assigned to Haile, interacted with Respondent once a week as part of the school's Child Study Team. However, Lloyd did not provide any list of job responsibilities to Respondent. Kerley evaluated Respondent's work performance in the past and found her work to be satisfactory. Prior to the allegations that gave rise to this action, Kerley never perceived deficiencies in Respondent's ability to maintain the ESE files. During Respondent's 13-year tenure as a teacher in the School District, she has consistently received satisfactory evaluations and has never been the subject of a disciplinary matter. Changes Impacting ESE Department in 2007-2008 Jerry Hernandez was appointed as the assistant principal at Haile for the 2007-2008 school year. Kerley designated Hernandez as the school's ESE administrator. As ESE administrator, Hernandez was responsible for ensuring compliance with FTE requirements, implementation of IEPs, and monitoring the ESE department chair. In the 2007-2008 school year, two changes were implemented which impacted the ESE Department at Haile and those working in that area. First, as part of an overall change implemented by the School District, ESE teachers at Haile were required to use a new computer system for creating ESE documents (i.e., IEPs, notices, consent forms, etc.). Second, there were significant changes in job responsibilities of the ESE department chair at Haile implemented at the school level. Computer System Changes Prior to the 2007-2008 school year, Haile was using a software program called Dynamo to assist in the maintenance of ESE files. Dynamo was primarily based upon the use of "hard copies" of relevant documents and was limited to each user's computer. At the end of the 2006-2007 school year, Haile switched from the Dynamo software to a web-based program called the A3 system ("A3"). The main difference between Dynamo and A3 was that A3, as a web-based program, allowed individuals to view relevant documents from any computer by logging into the system. After Haile switched from Dynamo to A3, the teachers and service providers were encouraged to input all previous IEPs drafted in Dynamo into the A3 system. In fact, after the School District switched to the A3 system, there was a "push" by administrators to have all IEPs inputted into A3. To accomplish this, Respondent typed IEPs drafted in Dynamo and those received from other states into the A3 system verbatim, so that teachers and other individuals would have access to the information from their computers. Also, other Haile employees, including ESE teachers Athena Jantzen and Alice Moreland, and speech-language pathologist, Marie Bryant-Jones, input Dynamo IEPs into the A3 system. At the end of the 2006-2007 school year, the speech- language pathologist then assigned to Haile, Bryant-Jones, input goals for each student who received speech services into the A3 system. The next speech-language pathologist was free to revise the goals as she saw fit. The fact that Respondent and ESE teachers were inputting IEPs originally drafted in Dynamo into the A3 system was common knowledge at Haile. The School District provided training in the A3 system for ESE teachers at or near the end of the 2006-2007 school year. Additionally, on March 20, 2007, a district-sponsored one-on-one training was offered to the staff of Haile. Respondent attended that session and the training staff spent that day reviewing and/or explaining the A3 system. The training staff also worked with and helped Respondent input the current IEPs in the A3 system in order "to speed up the process." To start a new IEP in A3, the user is required to click on "Copy IEP" on the computer page. Clicking "Copy IEP" makes an identical copy of the last IEP in the system, including goals and objectives for other information about the student. The dates for the previous IEP remains the same until the user manually changes the date. This copy is a "draft" which becomes the new IEP when the modified or updated information is input into the A3 system. ESE Department Chair Changes in Responsibilities in October 2007 Prior to October 2007, ESE teachers at Haile were responsible for the ESE files of the students they taught, and each ESE teacher drafted the IEPs for their students. In October 2007, Hernandez told Respondent that as the department chair, she was now to assume responsibility for all of the ESE files at Haile. Hernandez explained to Respondent that this change was being made because the ESE teachers had complained to him that they could not, or no longer wanted to, take care of the ESE files and to teach their classes. When Hernandez told Respondent that she was now responsible for maintaining all of the ESE files, Respondent informed Hernandez that she was not happy about that added responsibility. In response, Hernandez told Respondent not to worry about the files, indicating that they (the files) would "take care of themselves." Hernandez than told Respondent that she should concentrate on giving as much support to the teachers as possible. In October 2007, when Hernandez assigned Respondent the responsibility for maintenance of all ESE files, there were approximately 170 ESE files that needed to be maintained in compliance with FTE guidelines. Except for the foregoing, Hernandez never specifically informed Respondent of what her new duties were as ESE department chair. In October 2007, after being given the responsibility for all ESE files, Respondent drafted IEPs into the A3 system for students she did not have in class by getting feedback from the students' teachers and reviewing the students' progress reports. One ESE teacher at Haile, Athena Jantzen, continued to draft some of her own students' IEPs, as Respondent was overloaded with work. Service providers, such as speech-language pathologists and psychologists, were still expected to draft and enter their own goals into the A3 system. If a student received only speech services, the speech-language pathologist was responsible for drafting the student's IEP and maintaining the file. After being assigned the responsibility for all the ESE files, Respondent asked the ESE clerk to print copies of various active IEPs from A3. Respondent requested the copies so that a copy of the student's IEP could be included in each file related to that student. The IEPs and related documents were printed from the A3 system, not photocopied, and reflected a print date of October 17, 2007, on the top of each page. The executed signature pages of the IEP which could not be printed from A3, were not photocopied by the ESE clerk and were not included in each file. After being assigned the responsibility for all the ESE files, Respondent continued to teach her assigned ESE class and perform cafeteria duty on a daily basis. Respondent was also pulled almost weekly from her department chair responsibilities to cover additional classes. Responsibilities Related to ESE Compliance Issues As chairperson for the ESE Department, Respondent was charged with the maintenance and oversight of IEPs. At Haile, the guidance counselor is designated as the school's LEA. At Haile, the registrar was designated by the school administration to set up IEP and revision meetings. The ESE clerk, who worked at Haile one day a week, was assigned to mail out the notices of meetings to the parents. When students enrolled at Haile from another school, the registrar or guidance counselor would inform Respondent if the child required ESE services. Error Reports Respondent received an "error report" from the school's registrar almost weekly. The error report identified potential compliance issues with the ESE files, but did not represent a completely accurate accounting of the files. For example, it would not identify compliance issues, such as a missing signature page for an otherwise valid IEP. Respondent used the error report to ensure that IEPs were timely updated and reviews for re-evaluations were timely initiated. Hernandez, as ESE administrator, received an "error report" about three times a year. Error reports were available to service providers who requested them. These error reports were obtained and used by some service providers to determine when the re-evaluations for which they were responsible were due. Systems to Notify Service Providers of Re-Evaluation Dates While ESE department chair, Respondent used the following three different systems to notify and/or remind service providers when students needed to be re-evaluated: (1) the "white board" system; (2) the "file drawer" system; and (3) the "binder" system. At some point prior to the 2007-2008 school year, Respondent used the "white board" system. Under that system, Respondent listed the names of students whose re-evaluation date was approaching and the due date of the re-evaluation on a "white board" that was located in the ESE office. Respondent updated the "white board" monthly. In the 2007-2008 school year, Respondent used the "file drawer" and "binder" systems to notify service providers of upcoming re-evaluation dates. The "file drawer" system consisted of placing all files that needed to be reviewed and/or files of students who were ready for testing in a file drawer designated and labeled for that specific category. In the case of a file review, Respondent would initiate the file review and then put the ESE file in a drawer labeled, "File Review." The service providers would simply go to the drawer and pull out student files to complete their review. Once the file review was completed and the student was ready for testing, the ESE file would be placed in the re-evaluation and/or evaluation drawer. At the beginning of the 2007-2008 school year, Respondent informed all of the service providers assigned to Haile of the "file drawer" system. Among the service providers Respondent informed about the "file drawer" system were Krista Cournoyer, a school psychologist, and Julia Caldwell, a speech- language pathologist. Respondent specifically explained the use of the file drawers to them, because this was their first year working at Haile. The "file drawer" system is a typical system used by schools in the School District, but schools are not required to use that system. Instead, schools have the option of developing and using any system they choose. Early in the 2007-2008 school year and at all times relevant to this proceeding, the "binder" system was initiated at Haile.3 Under that system, the names of students who required testing and re-evaluations were placed in a binder (notebook) in the ESE office. Respondent and Karen Ciemniecki, the ESE evaluator assigned to Haile, updated the information in the binder. The various service providers could utilize the information in the binder to determine which students they needed to test and/or re-evaluate. Service providers were free to use either the "file drawer" or "binder" system to determine when they were to review a file and re-evaluate a student. In addition to utilizing those systems, the service providers could also obtain an error report which would provide information concerning re-evaluations which were due the following month. Both the "file drawer" and the "binder" systems provided the service providers the means to determine when a review and re-evaluation was due, without the direct assistance of Respondent. During the 2007-2008 school year, several service providers, including Ciemniecki and Caldwell, used the "file drawer" and/or "binder" systems to determine when student file reviews, testing and re-evaluations were to be done. In addition to using the established systems, both Ciemniecki and Caldwell obtained error reports from either Respondent or Haile's registrar. Cournoyer, like the other service providers, was aware of the "file drawer" and "binder" systems and knew how to use them. Nonetheless, Cournoyer believed that the systems were inadequate and did not ensure that she would consistently know when the re-evaluations for which she was responsible were due. Although the systems in place were not perfect, if utilized, they provided a reasonable means to determine when reviews and re-evaluations were due. Moreover, the error reports, if obtained and used, provided an additional source by which service providers could determine about a month in advance when re-evaluations were due. There were times when there were files in the designated file drawer that Cournoyer needed to review. In those instances, Respondent removed those files from the drawer and handed them to Cournoyer, indicating that they needed to be reviewed. Events Leading to Investigation In January 2008, Cournoyer believed that it appeared that she was not completing re-evaluations in a timely manner. Cournoyer also believed that the reason for any delays in completing the re-evaluations was that she did not get all the requisite forms for those re-evaluations until they were overdue. On or about January 31, 2008, Cournoyer was conducting a file review for Student E.A. While reviewing the file, she noticed that an IEP meeting was conducted for this student on January 8, 2008. Upon reviewing the file, Cournoyer had two concerns. First, she had not been invited to that IEP meeting. Second, the documentation in the file indicated that the meeting occurred three weeks before Cournoyer was notified of the need to conduct a file review for this particular student. While reviewing the file of E.A., Cournoyer noticed that the student was receiving services from Caldwell, the speech-language pathologist. She then gave the file to Caldwell who, upon review of the file, noticed that the speech goals were already written on the student's active IEP. Caldwell was concerned that she had not written those goals, as it had been her intent to dismiss the student from speech-language services, and that she had not been invited to the IEP meeting. Caldwell discussed her concerns about the speech goals for E.A. with Respondent, who instructed her to set up a meeting to revise the IEP. Cournoyer shared her concerns about "overdue" re-evaluations in an email to Respondent, but disagreed that there was a system in place that addressed her concerns. Dissatisfied with Respondent's response to her email, Cournoyer then sent an email to members of Haile's Child Study Team, including Lloyd, the ESE specialist. After receiving a response from Lloyd, Cournoyer sent an email about her concerns to the Haile administrators, including Hernandez, and ESE staff on or about February 1, 2008. After receiving Cournoyer's email, Hernandez requested that she provide additional information about her allegations and concerns. In response to that request, Cournoyer provided Hernandez with a list of students and dates of re-evaluations that were overdue. On Sunday, February 3, 2008, Hernandez and Cournoyer met at Haile and reviewed the ESE files. During that review, they found some files that were missing signature pages and that one IEP appeared to have an altered date on a consent form. After conducting a preliminary investigation, Hernandez reported his findings to Principal Kerley who, in turn, contacted the School District's Office of Professional Standards ("OPS"). OPS then initiated an investigation of Respondent and the maintenance and formulation of the ESE files at Haile. Respondent was placed on administrative leave on February 5, 2008, before the February 2008 FTE cut-off date. During that leave, Respondent was prohibited from communicating with School District employees or entering the premises of Haile. Prior to being placed on administrative leave, Respondent was not informed of the allegations against her. The matter was assigned to Debra Horne, a specialist with OPS. After reviewing an email about the case from Hernandez, Horne decided to allow the ESE department to review the ESE files at Haile.4 On February 6, 2008, the ESE team, consisting of all the secondary ESE specialists and the ESE coordinator, Joe Roberts, conducted a preliminary review of the ESE files at Haile for compliance issues. That same day, Roberts memorialized the review team's preliminary findings in an email to the ESE director, Ron Russell. According to the email, the ESE team conducted a two-hour review of the ESE files and found about ten files with problems (i.e., missing signature pages, what appeared to be an altered consent form, and IEPs which appeared to be copied from previous year's IEPs). The email memorializing the findings noted that the ESE office was not organized and that "many folders and confidential information were spread out in varying locations of the office, not in a secured fashion." The email also noted that the team looked for "numerous folders [files] and could not locate them in the filing system."5 On February 29, 2009, Horne met with Roberts and Lloyd to review the ESE files and the ESE team's preliminary findings. Based on the review of the files, the OPS determined that 15 ESE files were non-compliant for FTE (funding) purposes and that another five ESE files had compliance issues that did not affect funding. On March 13, 2008, Horne interviewed Respondent about the findings of the ESE review team. The purpose of the interview, which lasted most of the day, was to allow Dozier the opportunity to offer an explanation of the alleged compliance issues concerning specific ESE files.6 Prior to the March 13, 2008, interview, school officials did not notify Respondent of the allegations or allow her to respond to those changes. After completing the investigation and interviewing Respondent, Horne published her findings in an investigative report. The findings in the OPS investigative report and which are the bases of the charges against Respondent in this case involve the non-compliant ESE files referenced above. Specifically, the investigative report found and determined that: (1) 15 ESE files were non-compliant for FTE or funding purposes; and (2) five ESE files had compliance issues that did not affect funding. As a result of the 15 non-compliant ESE files, the affected students were returned to basic funding, causing a decrease in the overall funds available to the School District. Nevertheless, those identified students were provided with services in accordance with their IEPs. Non-Compliant ESE Files Resulting in Loss of Funds Student A.C. The investigative report found that there was no signature page in the ESE file of A.C. for the April 10, 2007, IEP. Without a properly-executed signature page, the IEP is invalid. Respondent testified credibly that she did not know if she conducted the IEP meeting when the April 10, 2007, IEP was developed, but believed that A.C. may have had more than one file. This belief was based on the fact that A.C.'s primary disability was "language impairment," and A.C. received speech services. Typically, such students had two ESE files, one of which was kept by the speech-language pathologist. The April 10, 2007, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Respondent further testified credibly that she could have and intended to locate the signature page before the FTE window closed. Student J.B. The investigative report found that the ESE file of J.B. did not contain a signature page for the November 6, 2006, IEP. Without a properly executed signature page, the IEP is invalid. The November 6, 2006, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Moreover, there is no evidence that Respondent conducted or was present at this IEP meeting. Respondent testified credibly that she could have and intended to locate the signature page for the November 6, 2006, IEP before the FTE window closed. The investigative report found that a second IEP for J.B. indicated that it was drafted on January 25, 2008, but the registrar was informed it was drafted on October 23, 2007. However, there is nothing in the record to establish that the registrar made such a statement. Student Z.L. The investigative report found that the ESE file of Z.L. did not contain a signature page for the March 19, 2007, IEP. The IEP for Z.L. dated March 19, 2007, was drafted while Z.L. was attending Freedom Elementary School ("Freedom"), and, thus, was drafted by employees of Freedom. This IEP was valid through March 18, 2008. Freedom is a school in the School District, and the IEP developed at that school was apparently put in the A3 system. The March 19, 2007, IEP was printed on October 19, 2007, and was a copy of the IEP from Freedom dated March 19, 2007. Because the IEP printed in October 2007 was a copy of a valid IEP, no signature page was required. No determination was made as to whether the original March 19, 2007, IEP, with the fully executed signature page, was ever sent by Freedom to Haile. The signature page could not be printed from the A3 system. Therefore, unless the original or a photocopy of the fully executed signature page of the March 19, 2007, IEP had been sent to Haile, the school would not have the signature page. Student A.L. The investigative report found that there was no temporary IEP written for A.L. after the student transferred to the School District in September 4, 2007, from an out-of-state school. In September 2007, when A.L. enrolled at Haile, the student had a valid IEP from the out-of-state school district. The out-of-state IEP was for the period March 7, 2007, through March 6, 2008, if the student had remained in that state. Once the student was enrolled, the School District had six months from the student's enrollment date to develop a temporary IEP. Accordingly, a temporary IEP should have been developed on or before March 4, 2008. A temporary IEP was not developed for A.L. prior to or by March 4, 2008, or as of March 13, 2008, when Respondent was interviewed by Ms. Horne. Although the temporary IEP had not been developed prior to Respondent's being placed on leave, steps were being taken to develop the IEP prior to Respondent's being placed on leave. For example, Ciemniecki administered achievement tests to A.L. in late September 2007. Also, Cournoyer was reviewing the student's file and also testing the student. Respondent was placed on leave February 5, 2008, about one month before the temporary IEP was required to be developed. Thus, no conclusion can be reached as to whether Respondent would have taken the necessary steps to ensure that the temporary IEP was developed by March 4, 2008. On the other hand, it is equally apparent that after being placed on leave, Respondent was prevented from and could not take any steps to ensure that a temporary IEP was developed for A.L. Therefore, it can not be concluded that Respondent is responsible for the failure to timely develop a temporary IEP. The credible testimony of Respondent was that she intended to take steps to ensure that an IEP was drafted within six months of A.L.'s enrolling in the School District. An issue was raised regarding what appeared to be inconsistent dates on the Informed Notice and Consent for Evaluation/Re-evaluation ("Informed Notice and Consent") form. That form included spaces in which the following was to be provided: (1) the referral date; (2) the parent's signature, either giving or denying consent for the evaluation; and (3) the date of the signature. The referral date printed or typed on the form is February 26, 2006. The parent's signature, giving consent for the evaluation, was dated September 24, 2007. The concern expressed was that the date of the referral, February 26, 2006, was more than a year and a half prior to A.L. enrolling in the School District. This discrepancy was explained by the credible testimony of Respondent. According to that testimony, the above-referenced consent form was from the Dynamo computer system and had been used to make copies of blank forms to be used. However, the "referral date," February 26, 2006, had been printed or typed on the original form, and that date had been inadvertently left on the form prior to copies of the form being made. Student S.H. The investigative report concluded that S.H.'s IEP dated April 26, 2007, was invalid because it was created at Haile four or five months prior to the student's enrolling in the School District on September 5, 2007.7 The ESE file of S.H. contained a valid IEP dated April 26, 2007, that was drafted while the student was living out-of-state and enrolled in an out-of-state school. That IEP would have been valid through April 25, 2008, had the student remained in the out-of-state school district. In addition to the out-of-state IEP, the ESE file of S.H. also contained another IEP dated April 26, 2007, which indicated that, as of that date, the student was attending Haile. There was also a fully executed signature page for this April 26, 2007, IEP, which had been signed by the parent, Respondent, and six other individuals. In addition to the parent and Respondent, six others signed the signature page of that IEP. Contrary to the allegations, the IEP for S.H. created at Haile was not created on April 26, 2007, four months before the student enrolled in the School District. Respondent testified credibly that she input the data from the out-of-state IEP into the A3 system. However, while inputting information in A3 for the student's new IEP, she neglected to change the IEP plan date from April 26, 2007, to the new IEP plan date. The testimony of Respondent is supported by a careful review of contents of the IEP. For example, the IEP clearly indicates that the student is now enrolled at Haile as a "transfer [student] from out of state."8 The signature page of the Haile IEP also mistakenly shows that the IEP was developed on April 26, 2007. However, the upper right corner of that signature page indicates that the signature page form for S.H.'s Haile IEP was printed from the A3 system at 7:18 a.m., on October 29, 2007, almost two months after S.H. enrolled in the School District. As noted above, only blank signature page forms can be printed from A3. Therefore, the signatures had to be placed on the signature page some time after the form was printed. Respondent's failure to change the plan date of the student's out-of-state IEP to the plan date of the new IEP created at Haile, was due to human error. Student S.R. The investigative report found that S.R.'s ESE file did not contain an IEP, a notice of IEP meeting, or signature page. S.R.'s ESE file contained a valid IEP dated February 8, 2007, drafted while the student was at Gene Witt Elementary ("Witt"), a school in the School District. The IEP was drafted by employees at Witt and was valid through February 7, 2008. The file also contained an IEP with a plan date of February 7, 2008 (the same as the Witt IEP), indicating that the student was attending Haile at the time of the IEP. Respondent testified credibly that she typed the data contained in the Witt IEP, which was in the Dynamo System, into the A3 system so that the data would be available to other teachers. Respondent testified credibly that she had no intent to make it appear that S.R. was attending Haile in February 2007. Respondent further testified credibly that when an individual inputs data into the A3 system, the school that the individual is assigned to automatically "pop[s] up" in A3 as the student's school. The document included in the investigative report that is the basis for discipline against Respondent is a copy of S.R.'s IEP that was created at Witt dated February 8, 2007. That IEP was printed from A3 on October 19, 2007. Because the IEP is a copy of a valid IEP, no signature page was required. Likewise, no notice of the IEP meeting was required. No evidence was presented to establish that the notice and fully executed signature page of the subject IEP were ever received by Haile. Student E.M. The investigative report found that the ESE file of E.M. did not contain a signature page for the April 11, 2007, IEP, and, thus, the IEP was invalid. E.M.'s April 11, 2007, IEP notes that the student's primary exceptionality is "language impaired." During the March 2008 interview, Respondent informed the OPS investigator that she believed E.M., as a language-impaired student, had two ESE files, one of which was maintained by the speech-language pathologist.9 Respondent testified credibly that she could have and intended to locate the signature page or schedule another IEP meeting before the FTE window closed. The April 11, 2007, IEP was drafted during the previous school year and prior to Respondent becoming responsible for the maintenance of all ESE files at Haile. Student M.D. The investigative report found that the ESE file of M.D. did not contain a valid IEP. According to the report, Respondent gave a plan date of November 2, 2007, to the registrar, but failed to create an IEP on that date. On November 2, 2007, a parent conference was called and conducted by Ms. Moreland, a teacher at Haile. Respondent did not attend the parent conference, but about mid-meeting, Moreland went to Respondent's office. Moreland then told Respondent that the team originally intended to remove M.D. from mainstream classes, but during the parent conference decided against it. The November 2, 2007, date may have been incorrectly given to the registrar as the IEP plan date.10 However, the meeting conducted on that date was a parent conference, and unlike IEP plan dates, are not reported to the registrar. It is alleged that the report of the conference and IEP revision sheets were incomplete. However, as a result of the team's decision that M.D. services remain the same (he would remain in mainstream classes), there was no need for the partially completed revision form to be included in M.D.'s ESE file. Thus, Moreland should have discarded that form. M.D.'s ESE file included a valid IEP dated February 8, 2007. This IEP was valid through February 7, 2008. The short-term objectives from M.D.'s 2007 and 2008 IEPs were identical. The latter IEP was dated March 6, 2008, after Respondent was on administrative leave and Jantzen was interim department chair. Student E.R. The investigation found that E.R.'s sixth-grade IEP appeared to be copied "exactly" from the student's fifth-grade IEP. The concern was that the information copied from the fifth-grade IEP to the sixth-grade IEP did not accurately reflect an appropriate measurable annual goal in the area of math. The annual measurable goal on E.R.'s fifth-grade IEP and copied on the student's sixth-grade IEP was that the student "will satisfy fifth grade math requirements." However, during the investigation, it was established that the student was performing above the fifth-grade level in math at Haile. Thus, that previous math goal should have been changed.11 The fifth-grade IEP was developed on December 7, 2006, when E.R. was enrolled at Freedom Elementary School ("Freedom") and remained effective through December 6, 2007. E.R. was enrolled as a sixth-grader at Haile in the 2007-2008 school year. Therefore, the fifth-grade IEP was effective the first few months of E.R.'s sixth-grade year at Haile. Pursuant to the administration's instructions, after E.R. enrolled at Haile, Respondent input the information from the December 2006 IEP into A3.12 Although E.R. was in the sixth grade, the IEP was effective until December 6, 2007. The December 7, 2006, IEP, upon which the OPS refers, was printed on October 19, 2007, and is a copy of the IEP developed at Freedom, except that E.R.'s school and grade had been changed. The student's school was changed from "Freedom" to "Haile" and the current grade was changed from fifth to sixth.13 Respondent testified credibly that she did not know who changed the grade and school on E.R.'s December 2006 IEP. Moreover, no evidence was presented as to who made those changes. However, undoubtedly, on October 19, 2007, E.R. was enrolled at Haile and was in the sixth grade. Respondent testified credibly that in inputting E.R.'s December 7, 2006, IEP, developed at Freedom, into the A3 system, she did not intend to make it appear that E.R.'s December 7, 2006, IEP was developed at Haile. Student C.D. The investigative report found that Respondent gave the registrar an IEP plan date on January 30, 2008, but A3 indicated the meeting was held the following day. Having the IEP meeting on the following day would not necessarily be a violation.14 However, C.D.'s ESE file did not contain a notice of a January 30 or 31, 2008, IEP meeting, an IEP, or a signature page for either of those dates. If a meeting were held on either of those days, a notice of the meeting and a signature page should be in the file. C.D.'s ESE file contained a valid IEP dated February 5, 2007, that was valid through February 4, 2008. Respondent testified that she intended to draft another IEP and hold a meeting before the deadline, which would have brought the file into compliance with the FTE requirements. Notwithstanding Respondent's testimony, there was no indication that an IEP plan meeting had been scheduled on or before February 4, 2008, and that notices of such meeting had been sent to parents and other appropriate individuals. Unless an IEP plan meeting had been scheduled and properly noticed, regardless of Respondent's intent, an IEP could not have been developed on or before the February 5, 2007, IEP expired. Student J.D. The investigative report found that the goals from J.D.'s 2008 IEP are identical to the student's 2007 IEP, which was effective from January 26, 2007, through January 25, 2008, unless and until a new IEP was developed. A new IEP ("2008 IEP") was developed for J.D. on January 14, 2008, and was effective from that date until January 13, 2009. During her March 2008 interview with OPS, Respondent informed Horne that she was taught that the goals of a student who was not meeting with success could be carried over to the next year. Other district employees confirmed that it was common practice to carry over goals from one year to the next. J.D.'s 2007 IEP indicates that Jantzen was the contact person for the IEP and that Respondent was not invited to the IEP meeting. J.D.'s 2008 IEP indicates that Respondent was not invited to the IEP meeting. Jantzen signed the signature page of this IEP as the ESE teacher, and Nosal, Moreland, Edmonson, and J.D.'s parent also signed the page. Jantzen, the current ESE department chair at Haile, testified credibly that a student's goals could be carried over to the next year, if deemed appropriate. According to Jantzen, it would be proper to include a note on the IEP regarding the reason(s) why the goals were carried over. However, there is no indication that Jantzen did so in J.D.'s file. Student M.M. The investigative report found that M.M.'s IEP dated April 4, 2007, did not include an LEA signature. Respondent informed OPS that it was probably an oversight that the LEA failed to sign the signature page. Respondent testified credibly that she would not have held a meeting if an LEA was not present, and it was likely that she anticipated an LEA coming or that the LEA was in attendance, but failed to sign the sheet. Typically, in the School District, the ESE department chair is the designated LEA at his/her respective school. However, at Haile, the school's guidance counselor, not the ESE department chair, is the designated LEA. If and when the guidance counselor at Haile is unavailable to serve as LEA, other individuals at the school, including Respondent, as the ESE department chair, were authorized to act as LEA. The failure to obtain the signature of an LEA at the April 4, 2007, IEP meeting was an oversight. Respondent was at that meeting and signed the signature page as the ESE teacher/evaluator. In the absence of the guidance counselor or another person designated as LEA, Respondent could have signed as LEA in addition to signing as ESE teacher/evaluator. Respondent was not aware that the LEA had not signed the form until she (Respondent) was interviewed by OPS. If Respondent had become aware of the problem prior to being placed on administrative leave, she could have taken one of two steps to correct the situation before the FTE window closed. To correct the omission of the LEA signature, Respondent could have scheduled another IEP meeting if no LEA was present. According to Hernandez, corrective action could have been taken by having the LEA sign off after the meeting, if that person had attended the meeting, but forgot to sign.15 Due to her oversight, Respondent took no corrective action to obtain the signature of an LEA on M.M.'s IEP dated April 4, 2007. As a result of this oversight, the IEP was not compliant for the October 2007 or the February 2008 cut-off date. Student B.R.H. The investigative report found that B.R.H.'s IEP dated March 6, 2007, did not include an LEA signature. The effective period of that IEP was March 6, 2007, through March 5, 2008. Respondent signed the signature page of the March 6, 2007, IEP as the ESE teacher/evaluator. In addition to signing the signature page as the ESE teacher/evaluator, Respondent, as ESE department chair, also could have signed as LEA if the primary LEA representative was not at the meeting. The corrective action discussed in paragraph 148 could also have been taken if the LEA representative attended the meeting, but left without signing the signature page. Respondent was not aware of the omission of the LEA signature until it was called to her attention during the March 13, 2008, OPS interview. Had Respondent been aware of that omission prior to that time, she could have taken appropriate corrective action. Because Respondent was unaware of the situation prior to that time, no corrective action was taken prior to the October 2007 FTE cut-off date. Student J.G. The investigative report determined that the ESE file of J.G. could not be found. Despite that determination, it was not established when this student enrolled at Haile and/or if that student's ESE file was ever delivered to Haile. Moreover, at this proceeding no testimony or evidence was presented as to whether the ESE file was found after Respondent was placed on administrative leave. As ESE department chair, Respondent was responsible for maintaining the ESE files. However, in this instance, it is unknown when, and if, J.G. enrolled in Haile and/or if the student's file was ever delivered to the school. Assuming, though not finding it, that J.G's ESE file was at Haile, no evidence was presented that Respondent intentionally or otherwise concealed the file.16 The credible testimony of Respondent was that she did not conceal J.G.'s ESE file. Student B.M. The investigative report found that B.M.'s ESE file could not be found. It was not established that B.M. was a student at Haile, whether the student enrolled at Haile, or if B.M.'s ESE file was ever delivered to Haile. Also, no evidence was presented at the hearing as to whether the file was found since Respondent was placed on administrative leave. During the March 13, 2008, OPS interview, Respondent informed Horne that she did not know B.M. Also, Respondent testified credibly that she did not know B.M. and never saw B.M.'s ESE file. There was no evidence presented at the hearing that Respondent intentionally concealed the ESE file of B.M. or that the file was ever at Haile. Alleged Deficiencies Not Resulting in Loss of Funds Student E.A. The investigative report found that Respondent falsified an Informed Notice and Consent form for E.A. This finding was based on a comparison of two Informed Notice and Consent forms for E.A. Informed Notice and Consent forms: (1) advise parents that their child has been recommended for an evaluation, re-evaluation and/or file review; (2) indicate the types of assessments that may be used; (3) provide parents the option to either give or deny consent for the evaluation; and (4) provide a signature and date line for parents to complete. Informed Notice and Consent forms also provide spaces for information, such as the student's name, address, school, grade, and teacher's name ("identifying information"). On both of the Informed Notice and Consent forms for E.A., the identifying information had been written in the appropriate spaces, and the parent had signed and indicated that consent was given for the proposed evaluation. The two Informed Notice and Consent forms were different in several ways as set forth below. On the first Informed Notice and Consent form, someone had written in the student's grade as "6." The middle portion of the form, which describes the student's proposal for evaluation, was not completed. Finally, the parent's signature was on the form, but the "date" line next to his/her signature was not completed. On the second Informed Notice and Consent form: in the space for the student's grade, the number "8" was written over what appeared to be a "6," indicating that the student was in eighth grade, not sixth grade; (2) the middle portion relating to the proposal for evaluation had been completed; and (3) the date, April 23, 2007, previously not on the form, was written next to the parent's signature. The finding in the investigative report assumes that the first Informed Notice and Consent form (which was incomplete) was prepared and signed by the parent when E.A. was in the sixth grade, and the form was copied and modified when the student was in eighth grade. Those alleged modifications included changing the student's grade and inserting a date next to the parent's signature. Respondent testified that she may have changed the grade from "6" to "8" on the second form and did not know if she had added the date next to the parent's signature. While Respondent is not sure how the foregoing occurred or who did it, she explained that, with respect to the grade, it was possible that she wrote the "8" over the "6," because the grade had been initially entered incorrectly.17 According to the OPS report, during the March interview, Respondent advised the investigator that the file she (Respondent) was given to review was E.A.'s speech file and not the student's ESE file. Respondent told Horne during that interview that she was "almost certain that there was another consent form." At hearing, Respondent testified credibly that she believed that there was another consent form elsewhere.18 Based on the record, no determination can be made as to when the date next to the parent's signature was written on the Informed Notice and Consent form or who wrote that date.19 Based on the record, no determination can be made as to who or when E.A.'s grade level was changed from "6" to "8" or whether that change was made to correct an error.20 Student L.H. The investigative report found that the Informed Notice and Consent form for L.H. was falsified by Respondent. On the student's Informed Notice of Consent form, the date next to the parent's signature was January 25, 2008. The date of the parents' signature on that form appeared to have been changed to January 25, 2007. The investigative report found that the "8" in the year 2008 appeared to have been written over what seemed to have been a "7" in the year 2007. No evidence was presented to establish who wrote an "8" on the form, indicating that the form was signed by the parents on January 25, 2008. No evidence was presented as to when the parents actually signed the Informed Notice and Consent form. The credible testimony of Respondent was that she did not change the date on the consent form and did not know who had done so. Student B.H. It is alleged that the ESE file of B.H. did not contain a notice of an IEP meeting and should have since the student's current IEP was to expire on February 6, 2008. No evidence was presented to establish that Respondent directed or instructed the ESE assistant or registrar to send out notices of an IEP meeting for B.H. or that the notices were sent out. Respondent testified that she intended to make the file compliant by sending a notice to the parents before the deadline. Despite Respondent's intentions, unless a notice had been sent out prior to February 5, 2008, and unless she took extraordinary measures, the IEP plan meeting could not be convened and no IEP was developed for B.H. on or before February 6, 2008, when the student's IEP expired.21 Student A.T. The investigative report determined that the IEP for A.T. dated October 4, 2007, did not include a signature page. According to the investigative report, during the March 2008, interview with Respondent, the investigator "reviewed the concern for A.T." (no signature page for the October 2007 IEP). The investigator then advised Respondent that the School District could have lost funding, but the problem was caught in time, and an IEP meeting was held to obtain the signatures. Finally, the investigator told Respondent, "Please explain." Respondent answered by telling the investigator that she could not remember. The investigative report makes no mention of Horne providing any file of A.T.'s to Respondent during the above- described discussion. After the allegation related to the missing signature page was made and Respondent was placed on leave, a signature page for A.T.'s October 4, 2007, IEP, which included Respondent's signature, was found.22 Apparently, before the signature page for the October 4, 2007, IEP referenced in paragraph 189 was located and after Respondent was placed on leave, school officials completed two signature pages for that IEP. These signature pages were backdated to correct the "missing signature page" issue. Ultimate Findings The School Board lost funding due to 15 ESE files being non-compliant with applicable statutes and regulations. However, those non-compliant issues were the result of human errors, mistakes, omissions and oversights of those responsible for the files, including, but not limited to, Respondent. The record is void of any evidence that the ESE files' non-compliance issues were the result of Respondent’s committing intentional acts to falsify the ESE records and/or to misrepresent the facts relative to the ESE students. Finally, there is no evidence that the errors, mistakes, and omissions attributed to Respondent resulted from her intentionally or deliberately neglecting her duties and/or refusing to adhere to the directives of supervisors and/or applicable laws, regulations, and School Board policies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order: Finding Respondent, Annette D. Dozier, not guilty of the charges alleged in the Amended Administrative Complaint; and Reinstating Respondent with back pay and benefits. DONE AND ENTERED this 23rd day of December, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2009.
