The Issue The first issue to be determined is whether Respondent, Annette Jones Walker, violated the provisions of section 1012.795(1)(a), (d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a), and (5)(a), (g), and (h). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate number 948631, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2019. At all times pertinent to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her daughter, Tunisia Hairston, taught fifth grade in the classroom adjacent to hers. Respondent worked as a substitute teacher for approximately 14 years and as a full time teacher for 10 years. She currently teaches second grade in the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified that, removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in his district with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Five students from Ms. Walker’s class testified at hearing with respect to the 2011 science FCAT examination. Of those five, one student’s testimony could be construed as supporting the allegations in the Administrative Complaint. D.M. testified that Ms. Walker just walked around the classroom. She “wasn’t giving nobody answers. . . . She just tell you that maybe you should redo that one.” She testified that Ms. Walker told her to “relook” at a question, but also testified that she did not think Ms. Walker actually said anything, but rather pointed to the test booklet. D.M. admitted that her memory was not very clear, stating, “it was so long ago.” Students S.B., J.J., A.M., and E.S. also testified. S.B. said she “kind of” remembered the test, but that nothing about the test really stood out. She believed that in response to a question she had about the test, Ms. Walker may have given a general answer, such as, check over the page again. She did not remember Ms. Walker giving any hints to the class. S.B.’s testimony is vague and general at best, and does not support a finding of inappropriate assistance. J.J. testified that she was focused on the test, and was not paying attention to what others were doing. She stated that Ms. Walker did not go around the room giving hints to students during the test, and she did not recall Ms. Walker putting her finger on anyone’s test in a “hinting manner.” Similarly, A.M. testified that she did not remember Ms. Walker going around giving hints about how students should answer questions. Ms. Walker did not give any hints to A.M. and A.M. did not hear Ms. Walker give any hints to anyone else. A.M. stated that it was really quiet in the room, and while it is hard to remember that far back, if a teacher was giving hints on the FCAT, she would remember it. E.S. also testified that it was pretty quiet during the FCAT. She was not paying attention, but did not think that Ms. Walker went around the room giving hints about answers. She admitted that she did not remember much about the test, and could not separate out what happened in the science part of the test as opposed to the rest of the FCAT, but thinks it would have stood out if something inappropriate happened. She was focused on the test but aware of what was going on in the classroom, and Ms. Walker never pointed to anything on her test booklet, and thinks she would have heard something if Ms. Walker said anything inappropriate. Valorie Sanders was the proctor assigned to Ms. Walker’s class.5/ She does not recall exactly what Ms. Walker said during the test, but believed it was for the students to focus. She did not see Ms. Walker do anything that would violate testing protocols, for which she had received training; did not recall Ms. Walker giving hints to any students; did not recall any instance where Ms. Walker implied a student should change an answer from wrong to right; and did not see Ms. Walker point to an answer on a student’s test. Finally, Ms. Walker denied that she gave any inappropriate assistance to students during the test. She stated that she made statements such as “pay attention,” “focus,” “go back over your tests if you finish early,” and “make sure you have an answer for every question,” but did not make any comments about specific questions on the test. Ms. Walker testified that she remained seated during most of the testing because it is painful for her to walk. She did walk around once when she saw Mr. Chandler in Ms. Hairston’s class next to hers, and if she saw students staring off into space she would touch the student’s desk to get them back on task, but did not point to specific questions. Ms. Walker testified that she had been giving tests to students for 20 years and had never been accused of any impropriety. She, like her daughter, welcomed the decision not to proctor any more FCAT tests. After careful review of the evidence presented, it is found that Ms. Walker did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. The type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Walker to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that the testimony is undisputed that Ms. Walker had a difficult time walking6/ and only walked around the one time she saw Mr. Chandler. The explanation that she would point to the desk in order to gain a child’s attention and get them to focus is reasonable. It is not clear from the record at hearing when the Department of Education began or ended the investigation with respect to Respondent’s license. The Administrative Complaint was signed by the Commissioner on September 18, 2013. Ms. Walker testified that she did not remember receiving the Administrative Complaint, although she knew that there was an Administrative Complaint regarding the FCAT. She received a lot of paperwork during this time period, but did not read it all. She hired Mr. Caldwell to represent her during the investigative stage. On October 3, 2013, an Election of Rights form was filed on Ms. Walker’s behalf requesting time to negotiate a settlement with the Office of Professional Practices, and if an agreement was not reached during that time, electing a formal hearing. The Election of Rights form is signed by counsel, and not by Ms. Walker. On March 13, 2014, Ms. Walker completed an application for renewal form for renewal of her educator’s certificate. The form has a variety of questions, all of which Ms. Walker answered “no.” The questions listed included the following: Have you ever been convicted of a criminal offense? Have you ever been found guilty of a criminal offense? * * * Are there currently charges pending against you for any criminal offense? Have you ever had a professional license or certificate sanctioned or disciplined in this state or any other state? * * * Do you have any current disciplinary action pending in this state or any other state against a professional license or certificate or against an application for a professional license or certificate? Following the questions was a box that stated the following: Florida Law requires you to provide a YES or NO answer to the questions within the Legal Disclosure section of your application, even if previously submitted. If you answered YES to any question in the Legal Disclosure section on the application form, you must provide detailed complete information for each affirmative response within the corresponding section in this Legal Disclosure Supplement. * * * Having a criminal history or administrative sanction against a professional license does not automatically disqualify a person from receiving a Florida Educator’s Certificate, but such incidents will prompt a review by the Office of Professional Practices Services. For the section labeled “Professional License or Certificate Sanction(s),” the form required the applicant to identify the state, year, and issuing agency, as well as the license or certificate affected and the “Sanction and Reason.” Above the signature line, the form states: “I do hereby affirm by my signature that all information provided in this application is true, correct, and complete.” At the time Ms. Walker filled out the application, no discipline against her certificate had been imposed. There was, however, a proceeding in which Petitioner sought to impose discipline against her certificate. However, at that time, there would have been no year, sanction, or reason for her to list in the disclosure supplement. Applications for renewal are completed at the school district and forwarded to the Department of Education for processing. Ms. Walker testified that she went to the district office at the end of the day and was in a hurry when she filled out the application. At first she skipped the question about “current disciplinary action pending” because she did not understand the question. She bubbled it “no” because she was in a hurry. Veronica White of the Department of Education Bureau of Educator Certification explained the process for renewing educator certificates. She has been employed by the bureau since 1998. Ms. White was asked about the meaning of the term “pending disciplinary action” on the application form: Q. Ms. White, you referred to a question, referred to the application, the renew application of Ms. Walker. Let me ask you about a question on that application. When the Education Practices Commission, I will call it EPC. When EPC has ordered discipline, but it has not yet gone into effect; is that pending discipline? A. You are asking me questions that I can’t answer. I don’t work in Professional Practices Services. Q. Okay. A. I can only answer from the certification side. I am sorry. Q. Okay. Can I ask you about the meaning of pending discipline on the application form; is that something you feel you have expertise in, the meaning of pending discipline? A. No. Q. You can’t? Okay. All right. So you do not know the meaning of pending discipline on that application form? A. No, I really don’t. At the time Ms. Walker completed her renewal application, there was no final order imposing discipline against her license. There were disciplinary proceedings seeking to impose discipline that had not yet been resolved. It was not unreasonable, given the structure of the application, for her to answer “no” to the question as phrased, especially in light of the information sought in the legal disclosure supplement. She did not seek to obtain the renewal of her teaching certificate by fraudulent means. Some of Ms. Walker’s evaluations were admitted into evidence. A review of Respondent’s Exhibit 3 reveals that there are multiple copies of some of the evaluations, and the evaluation for 2010-2011 lacks a signature page. With respect to those evaluations that are complete, Ms. Walker was rated “outstanding” and “effective.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint in its entirety. DONE AND ENTERED this 6th day of February, 2015, 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 6th day of February, 2015.
The Issue Whether Petitioner established by clear and convincing evidence that Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2012)1/, and Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a), as alleged in the Administrative Complaint; and if so, what penalty shall be imposed?
Findings Of Fact Ms. Gonzalez holds Florida Educator’s Certificate 910377, covering the areas of Elementary Education and English for Speakers of Other Languages, which is valid through June 30, 2019. At all times relevant to the allegations in the Administrative Complaint, Ms. Gonzalez was employed as a third- grade teacher at the Poinciana Academy of Fine Arts in the Osceola County School District. The Florida Comprehensive Assessment Test (FCAT) is a statewide assessment test for evaluating student progress in the Next Generation Sunshine State Standards. Consequently, the standardized test is highly structured, and teachers who proctor the test are given specific instructions on how to administer the FCAT. The FCAT Test Administration Manual, section titled Administration and Security Agreement (Security Agreement), found on pages 315 through 317, specifically provides, in part, that: All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. Further, the Security Agreement lists as prohibited activities “[c]opying the passages or test items,” and “[c]ausing achievement of schools to be inaccurately measured or reported.” Finally, the Security Agreement includes an acknowledgement that: I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. On April 3, 2012, Ms. Gonzales signed the Security Agreement acknowledging her understanding of the test administration procedures. Also, on April 3, 2012, Ms. Gonzalez signed a document titled Test Administrator Prohibited Activities Agreement stating her understanding on the procedures for administering the FCAT. In particular, Ms. Gonzalez acknowledged that before testing she could not “[r]ead test items,” and that after testing she could not “[d]iscuss the content of the test with students.” On the week of April 18, 2012, the FCAT was being administered in the Osceola School District. During the April 18, 2012, testing date, a portion of the FCAT test assessed the students’ math skills. Ms. Gonzalez and Claudia Streeter (Ms. Streeter) were teachers administering the FCAT exams in their respective classrooms. These classrooms are connected to each other through a common area that is shared with another teacher, Amy Spence (Ms. Spence). At the time, Ms. Streeter was a reading teacher with Poinciana Academy of Fine Arts. After the morning testing session, Ms. Gonzalez and Ms. Streeter were eating lunch together in the common area. While in the common area, Ms. Spence entered the area to get her lunch. Ms. Spence overheard a comment between Ms. Gonzalez and Ms. Streeter that raised a question for her concerning whether or not the FCAT testing protocol was being followed. Specifically, Ms. Spence claimed that she heard Ms. Gonzalez state that she had looked ahead at the next day’s testing materials, a statement that both Ms. Gonzalez and Ms. Streeter deny having been made. The undersigned finds Ms. Streeter’s explanation that she was reading the FCAT test administrator’s manual for the next day, Session 2, credible, and that neither she nor Ms. Gonzalez stated that they had reviewed the next day’s FCAT testing questions. Ms. Spence’s testimony that she heard Ms. Gonzalez state that she had reviewed the next day’s FCAT questions is not credited based on her prior inconsistent statements concerning what Ms. Gonzalez stated, as pointed out by the cross- examination. In any event, Ms. Spence shared with another teacher that Ms. Gonzalez had indicated that she had previewed the FCAT questions for the next testing session. The teacher informed Ms. Spence that the comment should be reported to the school’s administration. Ms. Spence shared what she believed that she heard with David Noyes (Mr. Noyes), an assistant school principal, later that afternoon. After speaking with Ms. Spence, Mr. Noyes contacted Sheri Turchi, the school’s Principal (Principal Turchi), about the alleged comments. In turn, Principal Turchi directed that the information be provided to the School District’s Testing Coordinator, Angela Marino. Based on the statements allegedly made by Ms. Gonzalez and Ms. Streeter, Ms. Marino directed that neither Ms. Gonzalez nor Ms. Streeter be allowed to proctor the FCAT exam for the next day. The next morning on April 19, 2012, before school started, Ms. Gonzalez and Ms. Streeter arrived at school. Ms. Streeter found Ms. Spence crying in her classroom and asked what was wrong. Based on Ms. Spence’s answer, Ms. Streeter believed that there was a “misunderstanding” about the FCAT, and that she and Ms. Gonzalez might be in trouble. Ms. Streeter and Ms. Gonzalez went to the school office to clear up what they thought was a misunderstanding. On arrival at the school office, Ms. Gonzalez and Ms. Streeter were separated and not allowed to return to their classrooms. School officials provided Ms. Gonzalez and Ms. Streeter with notice that they were being investigated. School officials assigned two certified teachers with paraprofessionals to replace Ms. Gonzalez and Ms. Streeter in their classrooms for the FCAT testing that occurred on April 19, 2012. After the completion of the FCAT testing that second day, Ms. Marino along with Principal Turchi interviewed five or six students randomly selected from Ms. Gonzalez’s and Ms. Streeter’s classes about the FCAT testing. During the student interviews, Ms. Marino and Principal Turchi learned that Ms. Gonzalez and Ms. Streeter had combined their classes after the first day of testing. Further, some students stated that Ms. Gonzalez had conducted a short math study session in Ms. Streeter’s classroom. According to Principal Turchi, this study session or “drilling” of students between the two FCAT testing dates should not have occurred, and the classrooms should not have been combined without the administration’s approval. Ms. Gonzalez and Ms. Streeter do not dispute that they had combined their classes after the FCAT testing on the first day. Further, Ms. Gonzalez testified that she did answer some students’ math questions, but that she only answered a couple of questions asked by a few students, and that the entire exchange lasted between three and five minutes. Following the exchange, Ms. Gonzalez testified that she “crumpled” up the paper and threw it away. The undersigned finds Ms. Gonzalez’s description of her answering some students’ questions credible. Following the student interviews, school officials decided that substitute teachers would be needed to finish teaching Ms. Gonzalez’s and Ms. Streeter’s classes. That afternoon, on April 19, 2012, after finishing the FCAT testing and classes, Mr. Noyes and Principal Turchi went to Ms. Gonzalez’s and Ms. Streeter’s classrooms to retrieve lesson plans for the substitute teachers. As Mr. Noyes looked for Ms. Streeter’s lesson plans, he found two pieces of paper on the ELMO, a device used for projecting an image onto a screen. The two pieces of paper contained handwritten math problems. Mr. Noyes and Principal Turchi recognized that the pieces of paper contained “line graph” problems, which was consistent with statements made by students concerning the math review conducted by Ms. Gonzalez. Principal Turchi provided the papers to the School District, which then forwarded the documents to the State Department of Education. A comparison of the math problems written on the two pieces of paper with math problems contained in the FCAT testing materials for the second session conducted on April 19, 2012, are, in some instances, extraordinarily similar. For example, one of the problems found on the paper in Ms. Streeter’s class concerning the number of hours spent in traveling between two cities, using two different clock-faces, used the same exact times. Another example of the problems being exactly the same is seen in a graph comparing the number of cans removed from two six-packs. These two examples, out of the 20 math problems found on the two pieces of paper, appear to be live FCAT questions. Some of the problems found on the paper, however, are different and do not appear to be copied from the FCAT. The undersigned finds the testimony of students K.A. and J.V. that the two pieces of paper found in the classroom by Mr. Noyes as being the same paper used in the review conducted by Ms. Gonzalez is not persuasive. The students’ identification of the two pieces of paper does not meet the clear and convincing standard for two reasons. First, the undersigned did not find it credible that the students could positively identify the math problems found on the paper as being the same problems from the study review conducted by Ms. Gonzalez nearly two and a half years after the event. Second, the students’ written statements also suffer credibility problems. For example, K.A.’s written statement dated May 22, 2012, again over one month after the event at issue, states in pertinent part, verbatim: I was in Ms. Streeter class in Reading Ms. Streeter in math Ms. Gonzalez. Ms. Streeter gave me the FCat After sesion 1 they took the FCat Review some questions. it help me with Sesion 2 on paper it had 5x table. Ms Gonzalez review line plot. I saw under the smart board. Below K.A.’s written statement is another handwritten note by Ms. Sheree Fletcher which states: Sheree Fletcher showed K.A. the paper found in Ms. Streeter’s class – She recognized it as the review given by Ms. Gonzalez. SMF This handwritten note consists of Ms. Fletcher’s hearsay statements about statements purportedly made by K.A., within the document. The undersigned finds neither the students’ testimony nor the offered written statements as providing clear and convincing proof that the paper found by Mr. Noyes was written by Ms. Gonzalez. Both parties presented expert testimony in an attempt to address whether or not Ms. Gonzalez was the author of the paper found in Ms. Streeter’s classroom. The testimony showed that neither of the two experts viewed the original documents in formulating their opinions; rather, both witnesses were provided facsimile copies of the documents upon which to base their opinions. Ms. E’Lyn Bryan, Petitioner’s expert, offered the opinion that: After a thorough examination, it is the opinion of this examiner that based on the photo copies being a true representation of the original documents that the handwriting appears to be that of Carol Gonzalez. In contrast, Mr. Bruce Dekraker, Respondent’s expert, concluded that: With the material available for examination, and contingent upon all copies being true representations of the originals they represent, it has been determined that the absence of individual identifiable characteristics in the writing in question, precludes an identification or elimination with respect to Carol Gonzalez, (K1). The undersigned finds Mr. Dekraker’s explanation credible that without viewing the original documents for comparisons that it would be extremely difficult to make a definitive handwriting analysis. As Mr. Dekraker explained, handwriting analysis requires a comparison of the formation of the strokes and pressure applied to the paper. Moreover, Mr. Dekraker credibly explained that facsimile copies often distorted the letters and numbers, and that in the instant case there were too few numbers and letters to make a definitive analysis. This conclusion is reflected in Ms. Bryan’s own conclusion which conditions her own opinion on the photocopies being a “true representation” and states that the handwriting “appears to be that of Carol Gonzalez.” Based on the expert witnesses’ reports and testimonies, the undersigned finds that the handwriting evidence was inconclusive as to whether or not Ms. Gonzalez authored the two pieces of paper found in Ms. Streeter’s classroom. Petitioner failed to prove by clear and convincing evidence that Ms. Gonzalez authored the paper found in Ms. Streeter’s classroom by Mr. Noyes. Finally, Mr. Noyes, who is currently a principal at Kissimmee Elementary, credibly testified that Ms. Gonzalez is a teacher at his school, and that he considered her an asset to the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent not guilty of the charges in the Administrative Complaint. DONE AND ENTERED this 24th day of March, 2015, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2015.
The Issue The issues presented are whether check marks that Respondent placed on the test booklets of some students during the second day of a Florida Comprehensive Assessment Test violated Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B-1.006(3)(a), (b), (d), and , (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009. The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie). At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class. As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency. It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise. The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860. Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage. No aggravating factors are evidenced in the record. However, several mitigating factors are in evidence. For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings. The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test. During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers. The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b). Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees. Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a). Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator. Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents. The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified. In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d). Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade. It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher. Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. None of the affected students testified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of coaching students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003), not guilty of the remaining charged violations, issuing a written reprimand to Respondent, and requiring Respondent to complete relevant training before proctoring another FCAT. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2005. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent, Department of Children and Family Services, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Julie A. Bedell. Specifically, Petitioner alleged that after she was hired, completed training, and was assigned to a section, her section supervisor terminated her probationary employment because of her age (49 years), while other younger employees were retained.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: Respondent, Department of Children and Family Services (Agency), an agency of the State of Florida, at all times material to this cause, was an "employer," as that term is defined in Section 760.02(7), Florida Statutes (2002).1 Petitioner, Julie A. Bedell (Ms. Bedell), at all times material to this cause, was 49 years old and an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes. All Agency personnel matters, at all times material to this cause in 2002, were centralized. Agency personnel was authorized, within budgetary constraints, to determine and advertise available positions, receive employment applications, evaluate and qualify each applicant, identify applicants who met minimal qualifications, and to hire qualified applicants to fill vacant positions throughout District 1, that included Fort Myers, Florida. The minimum qualifications that must be met before one becomes qualified for a permanent position as a family service counselor (FSC) with the Agency are a bachelor's degree from an accredited institution, attainment of a child protection certification, and successful completion of a one-year probation period. Child protection certification is earned after attending eight weeks of PDC training, passing a written assessment test, and successfully completing a field-based (on- the-job training) assessment evaluation. New employees must successfully complete, from the date of hire, a one-year probationary period before attaining permanent employment status. Completion of a field-based performance assessment shall occur during the one-year probationary period. At all times material, Ms. Bedell was a probationary employee. A probationary employee is one who does not have the benefit of termination only for cause, as does a permanent employee. By Agency rule probationary employees may, at the discretion of the Agency, be terminated without cause. On January 25, 2002, the Agency hired Ms. Bedell as a probationary employee in the position of a FSC. Ms. Bedell attended Human Resources (HR) orientation and there received the Agency's Employees' Handbook, containing, among other subjects, information regarding hours of work, lunch hour, breaks, and the requirement for approval from one's supervisor before variation of one's 8:00 a.m. to 5:00 p.m. work schedules.2 Thereafter, Joyce Mieses, Ms. Bedell's FSC unit supervisor, instructed and informed Ms. Bedell of policies, regulations, and operational procedures to which she was subject as a member of the FSC unit. Ms. Bedell was informed by Ms. Mieses that operational regulations included, but were not limited to: (1) employee's duty hours were limited to Monday through Friday from 8:00 a.m. to 5:00 p.m. with lunch hour from 12:00 p.m. to 1:00 p.m.; (2) employee's timesheets were to reflect 40 hours per week divided into work days of 8:00 a.m. to 5:00 p.m., Monday through Friday; (3) on those infrequent occasions when an employee was required, by demands of a particular assignment, to be at work before 8:00 a.m., or to leave work before 5:00 p.m. or work later than 5:00 p.m., prior approval from a supervisor was required; and (4) a supervisor's prior approval was required before an Agency employee could "flex" their time. Flex(ing) time is the term used to identify specific periods of approved deviation from the 8:00 a.m. to 5:00 p.m. work day (late arrivals or early departures) given an employee to equal the amount of overtime (early arrivals or late departures) previously incurred by that employee. At all times material, Ms. Bedell was aware of and fully understood the Agency's policy of prior approval by a supervisor before she would be permitted to work earlier or later than the 8:00 a.m. to 5:00 p.m. daily time constraints.3 On January 28, 2002, Ms. Bedell attended her first PDC class training session. The training sessions concluded on March 21, 2002. The PDC at USF conducted the training classes. All new employees are required to attend the PDC training classes and are placed in a "Trainee" status as required by Florida Administrative Code Rule 60L-33.003(2)(c), which, in pertinent part, required time spent in trainee status shall not count toward completion of the required one-year probationary period. Including Ms. Bedell, there were 13 probationary trainee employees in the January 28, 2002, training class. The class makeup consisted of seven trainees under the age 40 and six trainees over the age 40. The PDC training classes began at 9:00 a.m. and ended at 4:30 p.m., or earlier when excused by the instructor. The PDC service center was located approximately seven miles from the Agency office complex. One-way travel time between the two locations was approximately 15 to 20 minutes. All probationary trainees were instructed that when they are not in a PDC training classes, they are required to be in the Agency's offices doing field service activities. Nancy Jackson, district mentor coordinator for the Agency, assigned Robert Richmond, an experienced FSC employee, as Ms. Bedell's mentor. The duty of the mentor to the trainees was to provide "hands-on" assistance in areas where the trainee encountered specific problems in acclimating themselves to the procedural processes of providing FSC services. Ms. Mieses personally instructed Ms. Bedell to report to the PDC training classes at 8:00 a.m. daily and, after each class, to return to work in the FSC unit until 5:00 p.m. She also instructed Ms. Bedell that her time card must reflect 8:00 a.m. to 5:00 p.m. as time actually worked each day. Ms. Mieses instructed Ms. Bedell that her personal approval was required before Ms. Bedell could enter a time change, from the 8:00 a.m. to 5:00 p.m. as hours worked each day, on her time-card. Ms. Mieses explained to Ms. Bedell the Agency's policy regarding the use of "flex" time as a means to compensate employees for those infrequent situations where an FSC would be required to report to work before 8:00 a.m. or work after 5:00 p.m. Ms. Bedell knew and fully understood that to flex one's 8:00 a.m. to 5:00 p.m., 40-hour-per-week work time meant to either come in late or leave early on a specific day. Notwithstanding Ms. Mieses instructions and Ms. Bedell's understanding of both timecard entries and prior approval before deviation from established time constraints, during the period from January 28, 2002, through April 1, 2002, the record evidence established that Ms. Bedell, without approval by Ms. Mieses, intentionally skipped her scheduled lunch hour (12:00 p.m. to 1:00 p.m.) on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Ms. Bedell left work at 4:00 p.m. on five occasions, January 31, February 5 and 6, March 22, and April 1, 2002. Each unapproved, early departure from work by Ms. Bedell was a separate cause for her termination. Ms. Bedell intended not to request and, in fact, did not request Ms. Mieses' approval before she skipped her lunch hours and "flexed" her time by departing early from work. Ms. Bedell deliberately chose to ignore the Agency's prior approval policy requirement before skipping lunch and flexing her time. Ms. Bedell repeated her established pattern of disregarding prior supervisor approval policy through her tenure with the Agency. Ms. Bedell acknowledged her intention to not follow instructions given by Ms. Mieses, with which she did not agree.4 On several occasions, Ms. Mieses counseled with Ms. Bedell and warned her about her failure to follow instructions regarding prior approval before deviations from standard procedures. Ms. Mieses instructed Ms. Bedell to discontinue that practice. Notwithstanding the conferences and warnings, on February 27, 2002, again without prior approval, Ms. Bedell worked 30 minutes of unnecessary overtime as an observer with an experienced FSC on a home visit. "Unnecessary" overtime is the term used to identify time spent on FSC tasks beyond the time that the supervisor, based upon the task(s) and the experiences of others FCSs, had predetermined was sufficient time to accomplish a given task(s). Ms. Bedell ignored her supervisor's instruction of a one-hour observation period and chose to stay longer on this home visit. On March 20, 2002, Ms. Bedell knowingly recorded an incorrect time on her timesheet. She recorded that the PDC class ended at 5:00 p.m., when in fact, the PDC class ended at 3:30 p.m. When Ms. Mieses asked Ms. Bedell about the "class ending time" discrepancy, Ms. Bedell intentionally misled Ms. Mieses by insisting that she was "in" class until 5:00 p.m. on March 20, 2002. The PDC class instructor subsequently advised Ms. Mieses that she dismissed the class and all students departed the PDC facility at 3:30 p.m. on March 20, 2002. Ms. Mieses informed Ms. Bedell by e-mail that the PDC instructor confirmed that she released the class and all trainees were out of the facility classroom at 3:30 p.m. on March 20, 2002. After receiving the e-mail, Ms. Bedell retracted her position and corrected her timesheet. Ms. Bedell's misrepresentation of the time class ended on March 20, 2002, and her entry thereof on her time card provided two separate causes for termination: (1) intentional misrepresentation (lying); and (2) falsification of state records. She was again counseled but not formally disciplined for these offenses. On March 21, 2002, Ms. Bedell was assigned her first case file. The file contained ten pages of pre-service intervention information. When a case is brought to the attention of the FSC unit, an investigation is undertaken, a home visit (or court visit if necessary) is arranged, and a situation specific case plan is developed by the assigned FSC, followed by a staffing comprised of all parties within the chain of operations to review, modify, and refine the case plan to accommodate the needs of the family. On March 22, 2002, Ms. Bedell, without approval, came to work before 8:00 a.m. (no specific time in the record) to allegedly review the ten pages in her case file. At approximately 3:30 p.m. that afternoon, Ms. Bedell entered Ms. Mieses office and announced that she was leaving for the day because she came in early to review her case file. Ms. Mieses' attempt to stop Ms. Bedell from leaving work early (flexing her time) was ignored by Ms. Bedell as she left the FSC unit in direct violation of Ms. Mieses' instruction not to do so. Three days later, March 25, 2002, Ms. Bedell received her second case. This case was also assigned after pre-service intervention. Ms. Bedell discussed her second case with her mentor, and he determined that Ms. Bedell should use another case plan as a model from which to learn how to develop and draft her "first" case plan. Mr. Richmond informed Ms. Mieses of his training decision, and she promptly e-mailed a finished case plan to Ms. Bedell to assist her in developing and drafting her first case plan. Gary Evanoff, another experienced FSC unit co-worker, in keeping with the FSC unit's team approach, demonstrated to Ms. Bedell how to split her computer screen displaying the two case plans using the model case plan as a guide for drafting the proposed case plan. These additional training instructions and directions from experienced FSC unit co-workers were given to assist Ms. Bedell in the preparation of her first case plan. At all times material, the FSC unit to which Ms. Bedell was assigned had an open door policy and employed a "team approach" to train their new unit members. The team approach meant that when a new trainee enters the unit, other members of the FSC unit, the supervisor, the assigned mentor, and the field trainer undertook the joint responsibility of sharing in the overall training of their new unit co-worker. The unrefuted evidence of record demonstrated that Ms. Mieses arranged for Ms. Bedell to: (1) shadow other FSC counselors, (2) accompany other FSCs on field service activities, (3) ride along and observe home visits, (4) attend staffing(s), and (5) accompany other FSCs when court appearances were required. No co-worker in Ms. Bedell's FSC unit knew Ms. Bedell's age. Not a single witness called by Ms. Bedell observed treatment (favorable or otherwise) given to other unit employees that was not likewise given and/or made available to Ms. Bedell during her employment tenure with the Agency. Ms. Bedell would frequently interrupt Mr. Richmond as he worked at his desk. The frequency of her interruptions, the questions she asked, and the help she sought became a burdensome interference. As an experienced mentor of many other new FSC employees, Mr. Richmond surmised that Ms. Bedell came to him, in effect, for him to do for her tasks pertaining to her case, rather than attempting to do those tasks herself. Mr. Richmond opined that Ms. Bedell was not concerned with self-improvement through the process of learning from and by her mistakes. Mr. Richmond discussed his concern with Ms. Mieses and suggested that a more effective use of time for both him and Ms. Bedell would be to schedule a time for Ms. Bedell's questions. Ms. Mieses instructed Ms. Bedell to meet with Mr. Richmond and establish a schedule for mentor training meetings. Ms. Bedell did not comply with that request. Based upon the frequency of her visits and the questions she asked, Mr. Richmond concluded "compared to other mentorees at the same stage of training, she [Ms. Bedell] was not grasping basic terms and operational processes that was [sic] covered in her classroom training." He shared his observations, mentor relationship concerns, and conclusions with Ms. Mieses. Mr. Richmond never observed nor was he ever made aware of any discriminatory action taken against Ms. Bedell. He never observed nor was he ever made aware of any treatment different from the treatment of other FSC unit employees directed toward Ms. Bedell. He never considered nor was he aware of Ms. Bedell's age. Sue Carey, PDC field instructor, identified problems she observed and became aware of with Ms. Bedell's knowledge and work skills. After two home visits, Ms. Bedell voluntarily shared with Ms. Carey her "trouble liking" one family and her "trouble trusting" another family. In response to Ms. Bedell's expressed trouble (feelings and attitude) of "liking" and "trusting" families comments, Ms. Carey informed Ms. Bedell that her negative feelings and attitude (liking and trusting) towards families served by the Agency through FSC were of serious and professional concern to her and the FSC unit. Ms. Carey's follow-up field assessment review of April 1, 2002, described Ms. Bedell's knowledge of basic terms and operational processes contained in the two cases assigned to her as "extremely limited." Ms. Carey never observed nor was she ever made aware of any discriminatory action taken against Ms. Bedell. She never observed nor was she ever made aware of any treatment different from the treatment afforded other FSC unit employees directed toward Ms. Bedell. Ms. Carey never considered nor did she know Ms. Bedell's age. Ms. Bedell voluntarily chose to share and express her "feelings" and "attitude" about families she encountered with Ms. Carey, but she never shared or expressed her job-related "feelings" (of frustrations) and "attitude" resulting from a lack of or a denial of training; from derogatory, age-related remarks made to her; and discrimination by different treatment because of her age with Ms. Carey. The unrefuted evidence demonstrated that throughout her probationary employment tenure with the Agency, Ms. Bedell received the same standard training as other probationary trainees, regardless of the age of the trainee. There is no record evidence to substantiate a single instance where another probationary-trainee received "training" (assistance and or directions) that had intentionally not been made available or intentionally denied to Ms. Bedell. Ms. Bedell's allegation of disparaging age-based remarks made to her by a Jim Robertson, fellow trainee, during their PDC class on February 14, 2002, is not supported by evidence of record. Mr. Robertson denied knowledge of Ms. Bedell's age and denied making disparaging, age-based remarks to Ms. Bedell at any time during her employment tenure. On or about March 28, 2002, Ms. Mieses, through discussions and conversations with Mr. Richmond, Ms. Carey, and others, concluded that a structured, 8:00 a.m.-to-5:00 p.m., office job would probably better suit Ms. Bedell's personality. After further consideration of Ms. Bedell's demonstrated lack of respect for policies, her difficulty and refusal to following instructions, her ineffective utilization of her time, her limited grasp of basic FSC terminology, and her lack of acclimation to the FSC processes, all of which are common to a FSC worker with an assigned case load, Ms. Mieses submitted Ms. Bedell's name to the licensing unit supervisor for consideration as a candidate for a position in the licensing unit. It is within Ms. Mieses' supervisory authority to recommend the transfer placement of her unit personnel to positions she believes they may be best suited. The licensing unit office worked from 8:00 a.m. to 5:00 p.m. daily. Licensing was primarily an in-house unit with little or no out-of-office field activities or family interactions. Ms. Mieses, though not required, informed Ms. Bedell that her name was forwarded to the licensing unit supervisor who was responsible for making the selection. She explained to Ms. Bedell why she believed the potential transfer to the licensing unit would be in her best interest. At the time Ms. Bedell was informed of the potential transfer, she expressed no concerns of disparate treatment. She expressed no concerns that the possible transfer was made "because of her age." The licensing unit supervisor, however, had two candidates from which to choose from among the group of employees initially hired with Ms. Bedell and determined the other candidate, not Ms. Bedell, was the best suited candidate for the position. The licensing unit supervisor made her choice based primarily on two factors; first, the chosen candidate's long and stable work history of having taught in public schools for over 20 years, and second, the chosen candidate's long and varied experiences dealing with children and their families.5 The ages of the two candidates were not considered by the supervisor of licensing in filling the position. It is significant, however, that the candidate chosen by the licensing supervisor was both within the same protected class as Ms. Bedell and older than Ms. Bedell. The person chosen by licensing voluntarily resigned from the Agency after working in the unit a short period of time. Ms. Bedell's allegation and argument that the Agency's subsequent acceptance of the licensing unit candidate's resignation and not affording her the opportunity or option to resign before termination demonstrated discrimination (different treatment) is not based on fact. Voluntary resignation was available to Ms. Bedell throughout her tenure with the Agency. It was her post-termination attempt to broker a "resignation" that aborted her negotiations with HR. Her proposal consisted of tendering her resignation in exchange for the Agency either withdrawing from or sealing in her personnel file the termination letter. The post-termination negotiations failed.6 On April 1, 2002, Ms. Mieses provided Rita Young, district operations program manager and her supervisor, a documented outline of instances of insubordination, specific failures and refusals to follow instructions by Ms. Bedell. Based upon her many years as a FSC supervisor, Ms. Mieses' concerns resulted from Ms. Bedell's job-related inabilities and her repeated refusals to follow instructions and directions during her probationary employment period. Based upon Ms. Bedell's failures and refusals to follow instructions, Ms. Mieses concluded that once Ms. Bedell was in the field working as a permanent employee, she would continue her pattern of failing and refusing to follow instructions and directions. Ms. Mieses was convinced that Ms. Bedell's demonstrated propensity for disobedience of Agency policy would adversely affect the safety of children and families served by the FSC unit and the Agency. Based on her observations of Ms. Bedell's characteristic traits, her experiences with Ms. Bedell's lack of respect for supervisory authority, Ms. Bedell's demonstrated inability to follow directions, and Ms. Bedell's propensity to do things her way, Ms. Mieses recommended Ms. Bedell's termination as a probationary employee to her supervisor, Rita Young. Ms. Young possessed authority to disagree and overturn Ms. Mieses' recommendation. Ms. Young did not overturn the recommended termination. Ms. Young made the final decision to terminate Ms. Bedell and, following protocol, directed Deanna Gilkerson to forward the termination decision and supporting information to HR for review. Machel Poier, HR employee, relying upon the experience and knowledge of staff, agreed with staff's recommendation to terminate Ms. Bedell. Ms. Poier conferred with her supervisor, Coral Conner, who also agreed with staff's recommendation to terminate Ms. Bedell. Thereafter, Ms. Poier prepared the probationary termination form and sent it to Ms. Gilkerson for her signature, officially terminating Ms. Bedell's employment at the close of business on April 2, 2002. The documentation process, the review process, and the final decision making processes were in full accord with Agency protocol, policy, and procedures for termination of a probationary employee by the Agency. Ms. Bedell did not produce, through the testimonies of her witnesses, nor through admitted documentation, evidence that her age (even "if" known at the time) was considered by and/or a concern of Ms. Mieses, Ms. Young, Ms. Gilkerson, Ms. Poier, or Ms. Conner in their concurrence with recommendations to terminate her probationary employment with the Agency. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, evidence of discrimination by treatment afforded other younger (and/or same age) employees that was different from the treatment afforded her. Ms. Bedell did not produce, through admitted documentation or through the testimonies of her witnesses, that her supervisor, FSC unit co-workers, or any other Agency employee denied, prevented, or hindered her access to her obtaining probationary employee training that was offered during her tenure with the Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING Petitioner's, Julie A. Bedell, Petition for Relief based on age discrimination against Respondent, Department of Children and Family Services. DONE AND ENTERED this 26th day of March 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2004.
The Issue Whether Respondent's educator's certificate should be subject to discipline for alleged attempts to persuade instructional staff members to change students' failing grades to higher passing grades without academic justification, for allegedly changing the grades of one or more students to higher grades without academic justification, and for allegedly "flagging" the grades of one or more students such that the grades would not count toward the students' grade point averages, in violation of Section 231.2615(1)(c), (f) and (h), Florida Statutes (2001), and Rule 6B-1.006(3)(a) and (d), (4)(b), and (5)(a) and (h), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Respondent, Suzanne Elliott, holds Florida Educator Certificate 558267, covering the areas of biology, physical education, and guidance counseling, which is valid through June 30, 2005. Ms. Elliott has a bachelor's degree in Physical Education, Recreation and Biology, and a master's degree in Guidance Counseling at the secondary level. Ms. Elliott was employed as a guidance counselor at Merritt Island High School ("Merritt Island") in the Brevard County School District (the "District") for the 1997-1998 and 1998-1999 school years. She had held this position since 1985. Ms. Elliott had also served for several years as the cheerleading coach at Merritt Island. Ms. Elliott was the crisis counselor for the entire Merritt Island student body, and was also heavily involved in special education and standardized testing. In fourteen years at Merritt Island, and eighteen years in the field of education, Ms. Elliott had no prior disciplinary actions brought against her license. Her employee evaluations uniformly ranged from "satisfactory" to "exemplary," with the exception of her evaluation dated October 26, 1998. This evaluation was "unsatisfactory," for reasons explained in the body of this Recommended Order. Relevant District policies To "establish suitable uniform procedures for marking and reporting progress of pupils," the District has adopted the Brevard County Secondary Schools Grading Procedures, which provide the following statement of purpose: Grades shall be a measure of a student's progress and achievement in mastering the subject matter, based on the quality of work done, and reflect a comprehensive evaluation which utilizes a number of marks. A student's regular attendance, daily preparation, and promptness in completing assignments should be consistent and congruent with these grades and taken into consideration in reporting a student's progress. During the period from 1997 to 2000, the Florida legislature required that a student have a 2.0 grade point average ("GPA") to compete or participate in sports, including cheerleading. Students who graduated in 1998-1999 were required to have a "minimum cumulative grade point average of 1.5 based on a 4.0 scale for the 24 credits required for graduation and a cumulative 2.0 unweighted GPA on all courses taken after July 1, 1997, which count toward graduation or a cumulative unweighted GPA of 2.0 on all courses taken." Students who graduated in 2000 and thereafter were required to have a minimum cumulative GPA of 2.0 based on a 4.0 scale for the 24 credits needed for graduation. Three of the District's Grading Procedures, and the proper interpretation thereof, provide the context for this case: the procedure regarding grade changes; the procedure regarding grade forgiveness, or "flagging" grades for courses that a student has repeated; and the procedure regarding "failure due to absences" or "FA" as a course grade. As to grade changes, the District's Grading Procedures provide: "Grades once recorded, other than an 'Incomplete,' will not be changed without approval of the principal. For justifiable academic reasons a principal may change a grade." Marjorie Ebersbach was the Area III Superintendent for Brevard County from 1997 to 1999. Area III included Merritt Island High School. As Area III Superintendent, Ms. Ebersbach was responsible for the operation of approximately 22 schools in the Brevard County area and reported directly to the Superintendent. Ms. Ebersbach confirmed that District procedure is that a student's grade may be changed for justifiable academic reasons with the permission of the principal. Merritt Island assistant principal Katherine Halbuer testified that a grade can be changed only by the teacher who assigned the grade or by the principal for justifiable academic reasons. Ms. Halbuer stated that under no circumstances does a guidance counselor have the authority to change a student’s grade. Cocoa Beach Junior/Senior High School ("Cocoa Beach") principal Leslie Patricia Vann, former Merritt Island principal William Dugan, Jefferson Middle School principal Gary Shiffrin, and Cocoa Beach teacher Mary Jane Binney, all testified that the District procedure for changing a student's grade is that the teacher who assigned the original grade may change it for a justifiable academic reason, with administrative approval. These witnesses agreed that a guidance counselor lacked the authority to change a student's grade. As to grade forgiveness for repeated courses, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA after the course is successfully repeated is referred to in the District as "flagging." A course flag can be added to a student’s transcript so that a certain course is excluded from the calculation of a student's grade point average. Guidance counselors do have the authority to flag a student's grades. At issue in this proceeding was the timing of the flagging. Each District employee who testified on behalf of the Department stated that after the student has retaken the course, received a higher grade, and had that grade posted to his official transcript by the district, the first course grade may be "flagged" so that the lower grade is excluded from the grade point average. These witnesses testified that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Ebersbach explained that while the student is retaking the course, he has "not earned a grade to replace the previous grade, and you’re excluding something from their academic record that you have no legal authority to exclude." Ms. Vann, Ms. Halbuer, and Mr. Dugan concurred with Ms. Ebersbach that the student must complete the second course and have the higher grade posted before the first grade could be flagged and excluded from the student's GPA. Barbara Jones, a guidance counselor at Cocoa Beach, who had interned under Ms. Elliott at Merritt Island, also testified that flagging a grade was appropriate only after the student had repeated the course and the second grade had been entered. Ms. Jones stated that she learned this procedure "on the job." Grade changes and flags were posted via computer data entry. For many years prior to February 1998, the District employed an IBM mainframe computer running programs written by District staff. This system was popularly known as "IRMA." In February 1998, the IBM mainframe was replaced by an IBM AS400 server, and the homegrown programs were replaced by a commercially developed software program called "Total Educational Resource Management System," or "TERMS." As to "failure due to absences," the District's Grading Procedures provide: When a student is to receive a failing grade due to excessive absences, the following guidelines will apply: Students who have earned an average of 70 or higher [i.e., a passing grade] will receive 69 [the highest failing grade] for the grading period. Students who have earned an average between 49 and 69 will receive the grade they have earned.... The District did not set a system-wide number of unexcused absences that would merit a course grade of "failure due to attendance" or "FA." Individual schools were allowed to establish their own standards. At Cocoa Beach, an FA would be given when a student had more than nine days of unexcused absences in a given course. A student who received an FA could appeal the grade by timely filing an appeal form and going before a faculty appeal committee, which could change the FA to the grade the student would have received but for the excessive absences. However, a student whose absences were due to truancy or skipping class would not be permitted to appeal the FA grade. The Allegations In August 1998, Ms. Vann, the principal of Cocoa Beach, was approached by one of her teachers, who asked her why a guidance counselor from Merritt Island would make inquiries as to the grades of a Cocoa Beach student. Ms. Vann thought this highly irregular, believing that a counselor from another school should first contact the principal of the school with any such inquiries. Upon investigation, Ms. Vann learned that the counselor in question was Ms. Elliott, and that she had contacted three Cocoa Beach teachers regarding S.H., a Cocoa Beach student and cheerleader, who was in the process of transferring to Merritt Island. At a principals' meeting on August 26, 1998, Ms. Vann raised the issue with Mr. Dugan, the principal of Merritt Island. Mr. Dugan told Ms. Vann that if she had allegations to make against Ms. Elliott, she should put them in writing and he would consider them. At about the same time as Ms. Vann began expressing concerns about Ms. Elliott, Merritt Island assistant principal Catherine Halbuer began her own investigation of Ms. Elliott. Heather Novitsky, a newly hired data entry clerk, came to Ms. Halbuer with a handwritten list of students and courses that Ms. Elliott had given her with instructions to flag the courses. Ms. Novitsky did not know what "flagging" meant. When Ms. Halbuer instructed Ms. Novitsky on the procedure for flagging a student's grade, she discovered that the students on the list had not repeated the classes that Ms. Elliott had marked for flagging. Ms. Halbuer met with Ms. Elliott in August 19982 to explain that a flag could not be entered until a student had repeated the class and the grade had been posted. At a subsequent meeting on August 26, 1998, Mr. Dugan and Ms. Halbuer again discussed the proper procedure for flagging student courses with Ms. Elliott. At this meeting, Mr. Dugan told Ms. Elliott that a course could not be flagged before the second class had been completed and the grade posted. Ms. Elliott indicated that she understood. Meanwhile, Ms. Vann was conducting an independent investigation of Ms. Elliott's involvement with student S.H. Ms. Vann personally reviewed S.H.'s academic history and discovered that someone outside of Cocoa Beach had made three grade changes to S.H.'s record without authorization from any teacher at Cocoa Beach. Ms. Vann also discovered that someone outside of Cocoa Beach had flagged six courses for S.H., none of which S.H. had retaken at the time of flagging. On September 11, 1998, Ms. Vann sent a package to Principal Dugan documenting her investigation into the grade changes and flags that had been made to S.H.'s records. Ms. Vann's cover letter to Mr. Dugan requested that S.H.'s transcript be corrected to reflect the grades that were issued by her teachers at Cocoa Beach. In response to Ms. Vann's memorandum and accompanying materials, Mr. Dugan commenced his own investigation into the allegations. He personally reviewed the student records compiled by Ms. Vann, and concluded from the user password on the computer printouts that Ms. Elliott was the person who flagged and changed the grades for S.H. Mr. Dugan also discovered that Ms. Elliott had flagged an "F" grade in Algebra I for Student M.P., despite the fact that M.P. had not retaken the course. Mr. Dugan decided that these findings merited a thorough review of Ms. Elliott's flagging practices. Mr. Dugan contacted the District's main office, which assigned its systems analyst, Andrea Young, to compile information for Mr. Dugan's review. Ms. Young spent approximately three months compiling computer records regarding Ms. Elliott's case. On September 15, 1998, Mr. Dugan orally informed Ms. Elliott of the allegations against her and gave her 24 hours to respond. Mr. Dugan also told Ms. Elliott that she was prohibited from accessing TERMS until the allegations against her were resolved. Ms. Elliott did not respond to the substance of the allegations by September 16, 1998. However, on that date Ms. Elliott requested that Mr. Dugan put the allegations in writing so that she could obtain the assistance of her union representative. On September 17, 1998, Mr. Dugan addressed a memorandum to Ms. Elliott that set forth the following allegations: Mrs. Elliott approached three teachers at Cocoa Beach High School requesting a grade change for student [S.H.]. Mrs. Elliott did flag six grades for [S.H.] so they would not count on her gpa at approximately 6:00 p.m. on 8/27/98 and 8/28/98. Mrs. Elliott did change three grades for [S.H.] on 8/27/98 and 8/28/98. Mrs. Elliott did flag one grade for [student M.P.] so it did not count on her gpa on 8/27/98. I am requesting that you provide me with a written response to these allegations by 9:00 a.m. Monday, September 21, 1998. Also on September 17, 1998, prior to receiving any substantive response from Ms. Elliott, Mr. Dugan wrote a memorandum to Leroy Berry, the District's assistant superintendent for human resources. The memorandum stated that Mr. Dugan had completed his investigation and concluded that Ms. Elliott had in fact committed the acts described as "allegations" in his memorandum to her. Mr. Dugan further wrote that Ms. Elliott's failure to respond to the substance of his allegations within the 24-hour deadline he had given her on September 15, along with the documentation he received from Ms. Vann, led him to conclude that Ms. Elliott had changed and flagged the grades of S.H. and M.P. with the intent of making them eligible for the cheerleading squad. On September 21, 1998, Ms. Elliott gave Mr. Dugan her written response to each of the allegations: I had telephone conversations with three teachers from Cocoa Beach High School (CBHS) and explained that we had put [S.H.] on a contract—- a procedure that we use at Merritt Island High School (MIHS) for students with Failed/Attendances (FAs). I asked them if they would be willing to change the grades pending administrative approval if she followed through with the contract; she attended every day of summer school at CBHS and passed the classes. Two of the teachers said she was a good student, and they would be willing to help her. One teacher said there were no appeals processes or contracts at CBHS. I flagged courses she repeated in summer school, courses that were FAs, and courses in which she was presently enrolled. After practice on 27 and 28 August, at approximately 6 pm, [S.H.] came down to my office for counseling regarding her grades. I explained to her the effort she needed to apply to her studies, using the computer to demonstrate by making changes to letter grades. I never intended the grades to be changed permanently, evidenced by the fact that I never changed the Quality Points. Both changes are required for permanent grade changes. I did not know enough about the TERMS Program to realize that those changes I did make in demonstration to [S.H.] would be automatically saved when I exited the program. [M.P.] made up both of the courses in question in summer school and achieved the necessary grade to be eligible [for cheerleading]. On September 22, 1998, Mr. Dugan addressed to Mr. Berry a detailed memorandum in response to Ms. Elliott's memorandum of September 21. In his memorandum, Mr. Dugan stated that the contract procedure described by Ms. Elliott had never been used at Merritt Island, though he conceded that the principal might enter a contract to change the grade of a student "when faced with parental pressure on a questionable situation or to motivate a student in attendance trouble during that semester...." Mr. Dugan also noted that, according to Ms. Vann, no teacher at Cocoa Beach gave approval for a grade change. Mr. Dugan wrote that S.H. repeated only one class in summer school, that it was a class S.H. had already passed with a "B," that her grade for the course for summer school was also a "B," and that Ms. Elliott had improperly counted both "Bs" in the same course toward S.H.'s eligibility to participate in cheerleading. Mr. Dugan wrote that Ms. Elliott's flagging of S.H.'s grades of FA were both unauthorized and untimely, as was the flagging of M.P.'s grade for Algebra I. Finally, Mr. Dugan questioned Ms. Elliott's claim of ignorance as to entering grades on the TERMS system: "[A]ll counselors know anytime you change a grade on TERMS and hit enter, the screen automatically tells you the information has been taken and the record has been updated." On October 8, 1998, Mr. Dugan outlined a new allegation in a memorandum to Mr. Berry. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to access the TERMS system, in contravention of Mr. Dugan's order of September 15, 1998. At some point in early October 1998, the District suspended Ms. Elliott with pay, pending the results of the investigation. On October 26, 1998, Ms. Elliott received an official letter of reprimand stating as follows, in relevant part: This is an official letter of reprimand for your violations of School Board Policies 6Gx5-4.04 Access to Student Records, and 6Gx5-7.01(8) Compliance with Policies Required, the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.006, [Florida Administrative Code] (3)(d); (4)(a)(b)[sic]; and (5)(a) and two instances of gross insubordination to administrative directions. Not only did you request a teacher at Cocoa Beach Junior/Senior High School to change students' failing grades, you blatantly ignored my specific instructions on two occasions and changed failing grades and/or course flags of two students thereby raising their expectations to become eligible for participating on the Merritt Island High School cheerleading squad. Your access to TERMS was removed yet you deliberately went into the program utilizing another colleague's password. This letter serves to officially notify you that you no longer will be able to have access to TERMS. As of today, October 26, 1998, your suspension with pay has been rescinded by the Superintendent and you are being reassigned to the Abeyance Center, Cogswell site, effective tomorrow, Tuesday, October 27, 1998. You are to report to Kim Armellini, assistant principal, at 8:00 A.M. As you are removing your personal items on October 26, 1998, there remains no further reason for your continued presence on the Merritt Island High School campus. In early 1999, the District decided to terminate Ms. Elliott's employment. Ms. Elliott challenged that decision in DOAH Case No. 99-0207. The case was settled in November 1999, prior to hearing. Ms. Elliott voluntarily resigned her position with the District as part of the settlement. The investigation into Ms. Elliott's grade changes and flags continued even after she was removed from the Merritt Island campus and ultimately left the employ of the District. As noted above, Ms. Young's compilation of computer records relating to flags entered by Ms. Elliott continued through approximately December 1998. In October 1998, Marjorie Ebersbach took over as area superintendent and asked Mr. Dugan to bring her up to speed on any matters of concern at Merritt Island. Mr. Dugan briefed her on the Elliott investigation, and Ms. Ebersbach began her own investigation of the matter. During her personal investigation, Ms. Ebersbach met with Principal Dugan, Ms. Young, and Assistant Principal Halbuer. She also reviewed student records and concluded that Ms. Elliott had improperly flagged and changed student records. Mr. Dugan also continued his personal review of student records allegedly altered by Ms. Elliott, and finally concluded that "the evidence on file indicates Ms. Elliott continually violated . . . accepted ethical practices and she [should] be terminated." Ms. Halbuer, the assistant principal, also continued her investigation. She pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. A number of these students with altered records had already graduated. Memoranda by Ms. Halbuer outlining fresh allegations against Ms. Elliott appeared as late as February 15, 1999. Based on her personal review of the student records, Ms. Halbuer concluded that Ms. Elliott "flagged on a wide scale throughout all of her senior students, and also that some students had actual classes, based on their transcripts, that they never took, and that some students received diplomas that probably should not have received diplomas." The Evidence This section deals with the charges against Ms. Elliott for which the Department was able to produce evidence sufficient to establish a prima facie case of wrongdoing by Ms. Elliott. As will be discussed below, the passage of time and the routine destruction of records meant that the Department was unable to make a prima facie case regarding several students as to whom Ms. Halbuer's accusatory memoranda were unsupported by the documents on which she relied. Student S.H. Student S.H., an African-American female, attended ninth grade at Cocoa Beach in the 1997-98 school year. S.H. was a talented cheerleader but, by her own and her mother's testimony, she was going through a rebellious period. She fell in with the "wrong crowd" and began a pattern of skipping classes with her friends. Because of her truancy, S.H. received grades of FA in four of her ninth grade classes, including classes taught by Michael Gaudy, Michael Drake, and Mary Jane Binney. Cocoa Beach allowed students who had received a grade of FA to appeal that grade, but maintained a strict prohibition against appeals by students whose FA grades were due to skipping school. Ms. Vann, the Cocoa Beach principal, had evidence in her records that S.H. had skipped school, including records from teachers, phone calls to her parents, and referrals of S.H. to the dean’s office for truancy. Ms. Vann documented at least fourteen dates on which a teacher or administrator from Cocoa Beach contacted or attempted to contact S.H.'s parents regarding truancy, absences, grades, and leaving class. At the end of her ninth grade year at Cocoa Beach, S.H. had a GPA of 1.333, well below the 2.0 GPA required for participation in cheerleading. S.H. cheered on an independent, competitive "all star" team which included several members of the Merritt Island cheerleading squad. With the encouragement of some Merritt Island cheerleaders, S.H. approached Ms. Elliott in April 1998 about coming to Merritt Island and cheering for its team. Merritt Island was the school for which S.H. was actually zoned. She had attended Cocoa Beach because her older brother went there, but he graduated in Spring 1998. S.H. and her mother, M.H., wanted S.H. to transfer to Merritt Island. M.H. believed that Merritt Island would provide S.H. with a fresh start to her high school career away from the people with whom she'd been in trouble at Cocoa Beach. M.H. also believed that the larger African-American student population at Merritt Island would be positive for S.H. socially and academically. S.H. learned of the FA appeal process from one of the friends who had skipped school with her. This friend said that she had successfully appealed her FAs through Ms. Vann. However, when S.H. went to the Cocoa Beach office and attempted to file an appeal, her efforts were rejected as untimely. Because S.H.'s friend was white, S.H. and her mother suspected there was some racial motive in the rejection of her appeal. The evidence presented at hearing did not demonstrate that S.H.'s appeal was denied for any reason other than it was untimely. Ms. Elliott's initial reaction to hearing S.H.'s allegation of racial discrimination was to tell S.H. that there was nothing she could do. She advised S.H. to handle the problem herself, with her mother's assistance. However, M.H. subsequently told Ms. Elliott that she could not deal with the personnel at Cocoa Beach. Ms. Elliott offered to help collect information that the parent could present to the administration at Cocoa Beach to appeal the FA's. Ms. Elliott believed that Mr. Dugan might help and even intercede directly with the administration at Cocoa Beach, because Merritt Island was more lenient about granting FA appeals and because Mr. Dugan had helped her before with similar problems. Ms. Elliott was aware of several successful FA appeals at Merritt Island involving students who had more absences than S.H. Ms. Elliott also testified that Mr. Dugan had always been supportive of the cheerleading squad. Ms. Elliott advised S.H. that she would have to show "massive improvement" in her school work and spent time with S.H. to work on improving her grades. Ms. Elliott reviewed S.H.'s complete cumulative academic folder, counseled her on the racial issues she had raised, advised her on appealing the FAs, encouraged her to go to summer school, spent time with her after-hours, and placed her on the aforementioned "contract." The contract, signed on May 4, 1998, by Ms. Elliott, S.H., and M.H., stated: I, [S.H.], will attend summer school everyday [sic] during summer I and II to repeat courses I failed during my ninth grade year at Cocoa Beach High School in an effort to show my true capabilities and academic potential. In my efforts I realize that I can "audit" (x) or have my FA's changed from semester I at Cocoa Beach High School with the cooperation of my teachers from Cocoa Beach High School and/or administration from Merritt Island High School. I also realize that if I earn a D or an F during any term, as a Varsity Cheerleader at Merritt Island High School I will be on academic probation and will be required to work with a tutor one day a week. At the hearing, Mr. Dugan testified that one of his chief objections to the contract with S.H. was that Ms. Elliott did not obtain his approval. He stated that only the principal or his designee could enter into such a contract with a student. Mr. Dugan further stated: But in all of these cases, the contract would have to have the student right the wrong, whatever it was that they had done, okay? For example, you may give a student who's... passed mathematics with a C but failed it through excessive [absences]. You might write a contract with that student that if you don't miss any more than three days the next semester I would remove the FA because you've shown the fact that you can attend and will attend on time. Mr. Dugan found Ms. Elliott's contract with S.H. "totally illegal" because at the time the contract was executed, S.H. was not a student at Merritt Island. Further, Ms. Elliott was holding out the possibility of changing S.H.'s Cocoa Beach FAs with no real way of knowing whether it could be done. Ms. Elliott advised S.H. that she was ineligible for cheerleading upon her transfer in August 1998, and could not cheer until she became academically eligible. S.H. took two classes every day over her summer break. She received an "A" in one class, and a "B" in the other, with no absences. Ms. Elliott testified that in August 1998 she phoned three of S.H.'s teachers at Cocoa Beach, not to ask them to change S.H.'s FA grades in their classes, but to obtain information about S.H’s performance in their classes and to inform them of the assistance she was giving S.H. Ms. Elliott testified that one reason she called the teachers was to verify what S.H. was saying about her performance at Cocoa Beach. Ms. Elliott asked the teachers how often and why S.H. was absent from their classes, what grades S.H. would have earned but for the excessive absences, and whether she had brought an appeal of the FAs to any of them. Ms. Elliott conceded that her September 21, 1998, written response to Mr. Dugan's allegations included the statement: "I asked them if they would be willing to change the grades pending administrative approval if [S.H.] followed through with the contract." Ms. Elliott testified that this was in the nature of a shorthand response to Mr. Dugan's inquiry, and reiterated that she never directly asked the Cocoa Beach teachers to change S.H.'s grades. Ms. Elliott testified that she would have crafted her written response with more care had she understood the gravity of her situation. All three of the Cocoa Beach teachers contacted by Ms. Elliott testified at hearing. Each teacher verified that he or she was telephoned by Ms. Elliott, and that Ms. Elliott did not ask him or her to change the FA grade given to S.H. None of the three teachers recalled S.H.'s requesting an appeal of her FAs. Mike Drake taught ninth grade World Geography to S.H. during the 1997-98 school year and gave her an FA for more than nine unexcused absences. He stated that S.H. would likely have made a high "B" in his class but for the absences. Mr. Drake recalled that another teacher had circulated an e-mail throughout Cocoa Beach regarding the fact that S.H. had skipped school and that S.H.'s mother had been contacted concerning the absences. Mr. Drake confirmed that Ms. Elliott did not ask him to change S.H.'s grade. He stated that his interpretation of Ms. Elliott's purpose in calling was "gathering information." Mary Jane Binney, who taught Life Management to S.H. during the 1997-98 school year, testified that S.H. would have made a "C" in her class but for the absences. Ms. Binney testified that Ms. Elliott told her that she was helping S.H., and that Ms. Elliott "absolutely" did not ask her to change S.H.'s grade. Mike Gaudy, the athletic director at Cocoa Beach, had taught Weight Training to S.H., though he had no recollection of S.H. or of the grade she would have received but for her excessive absences. Mr. Gaudy thought it was "peculiar" that Ms. Elliott would contact him about a student who no longer attended Cocoa Beach. He was the teacher who reported his conversation with Ms. Elliott to his principal, Ms. Vann, who had him write a statement concerning his conversation with Ms. Elliott. Mr. Gaudy's written statement strongly implied that Ms. Elliott's purpose in calling was to persuade him to change S.H.'s grade. At the hearing, Mr. Gaudy testified that Ms. Elliott in fact never asked him to change a grade. The subject of grade changes came up only because Mr. Gaudy asked Ms. Elliott if that was her purpose in calling. In summary, no evidence was presented that Ms. Elliott at any time "improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification." Ms. Elliott was attempting to work out some form of grade forgiveness for S.H., contingent upon her improved performance in summer school and beyond, but there is no indication that she did anything "improper" aside from failing to involve Mr. Dugan in her efforts. At worst, Ms. Elliott failed to understand that Cocoa Beach's policy concerning FAs was more unyielding than the policy at Merritt Island, and that suspicions would therefore be aroused at Cocoa Beach when she began making inquiries about S.H.'s grades. The next phase of the narrative requires a digression on the working of TERMS. As noted above, TERMS was introduced to the District in Spring 1998. Training of District personnel on the use of TERMS began in February 1998. Ms. Elliott attended the first introductory course in February, and there learned that the entire District would immediately begin using TERMS for student scheduling. The training was to include a preview of the different "screens" on TERMS, including the scheduling screen and the attendance screen. Each type of screen required separate training. More than one hundred trainees attended the course with Ms. Elliott. They were provided no hands-on training; rather, they viewed a simulation of the TERMS program on an overhead projector and heard descriptions of the program's capabilities. One working TERMS terminal was set up to demonstrate its functionality, but the program constantly malfunctioned. Ms. Elliott testified that District personnel were skeptical about TERMS because they had heard about severe problems experienced in another large county, where the program was unable even to print transcripts. She testified that the malfunctions of the program at this introductory course intensified the general apprehension about TERMS. Ms. Elliott was not the only witness to discuss the problems with TERMS. Mr. Dugan testified that "there was an awful lot of frustration not only with my staff but with myself and all the other principals. Getting on the new system was a frustrating experience for all of us." Ms. Vann found the TERMS program "a lot more complex" than IRMA, "difficult" enough that she created her own training handbook that was ultimately circulated to all principals in the District. Mr. Dugan testified that TERMS was a "difficult program," and that it was "probably unfair" to expect the guidance counselors to use it for scheduling without adequate training. Ms. Elliott never received hands-on training on the scheduling screen. She learned on the job by scheduling students into their classes with the help of a "cheat sheet" prepared by a fellow guidance counselor who attended a later TERMS training session. She scheduled students for their Fall 1998 semester classes, asking for help when she made a mistake. Ms. Elliott received no training on the "academic history" screen, which was the screen used to enter grade changes or flags on a student's record. Ms. Elliott repeatedly requested hands-on training, but never received it. She tried to learn the program by watching what the other counselors did. Ms. Elliott testified that she had learned through "gossip of the counselors" that the TERMS program could be used as a counseling tool. She was told that it had the capability to allow a counselor to sit with a student and run hypothetical, "what if" scenarios regarding how the student's GPA could be improved or lowered depending on the grade received in a particular class or classes. Ms. Elliott was excited by this possibility, because the only way a counselor currently had to play such "what if" games was pencil and paper calculation, which was time consuming and subject to error. She believed that seeing the possible GPA improvement pop up immediately on a computer screen would be more likely to inspire the student to earn those grades, and she looked forward to using this tool with her counseling students. In fact, the TERMS program has no such "what if" capability, though systems analyst Andrea Young testified that it would be possible to write a program to give TERMS that capability. Ms. Young also testified that TERMS automatically saved any grade changes entered, without giving the user any opportunity, in the form of a "save" warning or otherwise, to rescind a grade entry. On the evening of August 27, 1998, after cheerleading practice, Ms. Elliott sat down in her office with S.H. to review her summer school grades on the "academic history" screen of the TERMS program. At this point, Ms. Elliott had seldom if ever attempted to manipulate data on the academic history screen. She had never changed letter grades, though she had entered flags for repeated courses. Ms. Elliott attempted to show S.H. what her GPA would be after her summer school grades were posted, and what it would be if S.H. were able to obtain the letter grades she would have received in the three classes at Cocoa Beach but for her excessive absences. Ms. Elliott entered the grades, but noticed that the grade changes resulted in no change in S.H.'s quality points or overall GPA on the TERMS screen. Ms. Elliott was perplexed. She knew from experience that flagging the grades would change the GPA, so she entered flags next to each grade. Flagging the grades did change the GPA, and enabled her to counsel S.H. Ms. Elliott testified that her only intention was to motivate S.H., to show her what would happen if she could successfully appeal the FAs from Cocoa Beach. She told S.H. that she would not likely raise her GPA sufficiently to be eligible for cheerleading in her first semester at Merritt Island, but that it would be possible to attain eligibility in her second semester. S.H. testified at the hearing, and completely corroborated Ms. Elliott's version of events. She confirmed that Ms. Elliott told her she was not eligible to cheer for Merritt Island. S.H. testified that her main concern at the time was to get away from Cocoa Beach, not to cheer for Merritt Island. She was already cheering for an elite competitive team away from school. S.H. testified that she began to cheer for Merritt Island during the second semester of her tenth grade year. Ms. Elliott testified that when she used the old IRMA system, the screen would clear upon signing off. IRMA required an affirmative keystroke to make grade changes permanent. Ms. Elliott did not realize until the evening of August 27, 1998, that TERMS made the changes automatically. Ms. Elliott returned to S.H.'s record in the TERMS program the next evening, August 28, 1998. Ms. Elliott testified that she was determined to figure out how to make grade changes on the TERMS program, and how to correct the erroneous grade changes and flags she had entered the previous evening. She had no better luck on the second night. Ms. Elliott testified that she never intended to make permanent changes in S.H.'s records. She expected to change the grades back to their correct status when she received S.H.'s cumulative folder from Cocoa Beach. She never made the corrections because the investigation commenced and she was barred from using TERMS before she had an opportunity to do so. The only evidence that Ms. Elliott altered S.H.'s records in order to make her eligible for cheerleading came from Mr. Dugan, who testified that S.H. cheered for Merritt Island at a Spring 1998 football jamboree before she was even a student at Merritt Island. Mr. Dugan also testified that he had "personal knowledge" that S.H. cheered for Merritt Island at the first three football games in Fall 1998, though he did not elaborate on the nature of this personal knowledge.3 He testified that he would have believed Ms. Elliott's story about playing "what if" games on the TERMS program, had she not placed S.H. on the cheerleading squad. Ms. Elliott, S.H., and M.H. testified that they all understood S.H. was not eligible to cheer during the Fall semester of 1998. S.H. testified that she was allowed to practice with the team, and was allowed to wear the uniform to games but was not allowed to cheer with the team. The last point accounts for the contradiction between Mr. Dugan's testimony and that of Ms. Elliott and S.H. Mr. Dugan testified that a cheerleader who did not have a 2.0 GPA could work out and practice with the team, but was not permitted to wear the uniform or cheer at school activities. Ms. Halbuer, the assistant principal at Merritt Island and a former junior varsity cheerleading coach, confirmed Mr. Dugan's statement that an ineligible cheerleader cannot wear the uniform. According to her own testimony, S.H. was allowed to wear the cheerleader uniform to games before she was eligible. The weight of the testimony establishes that Ms. Elliott should not have allowed S.H. to wear the uniform. However, despite Mr. Dugan's testimony, the evidence is persuasive that Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of 1998, and that S.H. did not actually cheer with the team at any games prior to becoming eligible in the Spring semester of 1999. Ms. Elliott's testimony as to how S.H.'s grades came to be changed and flagged is persuasive and credited. Ms. Elliott was negligent in failing to take steps immediately to correct S.H.'s grades. Rather than waiting for S.H.'s cumulative file to come over from Cocoa Beach, Ms. Elliott should have approached her superiors at the first opportunity to explain what happened and obtain assistance in correcting the record. However, the evidence presented at the hearing did not demonstrate that Ms. Elliott intentionally altered S.H.'s grades to make her eligible to cheer for Merritt Island. Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of the 1998-99 school year. Student M.P. Student M.P., a white female, attended ninth grade at Jefferson Junior High School ("Jefferson") in the 1997-98 school year. She transferred to Merritt Island to begin tenth grade in Fall 1998. M.P. was a cheerleader, and attended summer cheerleading camp with Ms. Elliott during the summer of 1998. In the ninth grade at Jefferson, M.P. took Algebra I during her first semester and received an "F." She was placed in Applied Math I for the second semester of ninth grade and received a "D." Two semesters of Applied Math I are considered the equivalent of one semester of Algebra I. At the end of ninth grade, M.P. was advised by her counselor at Jefferson that she should repeat Algebra I during the 1998 summer session. She applied to take Algebra I, but was told that it was not available. Therefore, she signed up for two semesters of Applied Math I. M.P. earned a "C" for the first semester and an "A" for the second semester of Applied Math I during summer school. On August 27, 1998, Ms. Elliott entered flags for M.P.'s ninth grade "F" in Algebra I and "D" in Applied Math I, meaning her grades in those courses would not count toward M.P.'s GPA. Ms. Elliott's logic was that, because Applied Math I is considered an equivalent course to Algebra I, M.P.'s two semesters of Applied Math I in summer school could replace her two semesters of Algebra I and Applied Math I in the ninth grade. The two flags entered by Ms. Elliott made M.P. eligible to cheer during the 1998 fall semester at Merritt Island. Believing M.P. to be eligible, Ms. Elliott permitted M.P. to cheer at three Merritt Island football games in August and September 1998. During his September 1998 investigation of Ms. Elliott, Mr. Dugan discovered the flag for Algebra I on M.P.'s records. Noting that M.P. had never retaken Algebra I, and declaring that a flag was appropriate only where a student has retaken the identical course, Mr. Dugan ordered the flag removed. With the "F" in Algebra I returned to the calculation, M.P.'s GPA fell below 2.0. Mr. Dugan ordered M.P. removed from the cheerleading team in late September 1998. He had a meeting with M.P.'s parents at which he told them that "something was going on," that grades had been changed that should not have been changed, and that M.P. was no longer eligible to cheer for Merritt Island. M.P.'s parents approached Ms. Elliott to find out what happened. Ms. Elliott did not believe that Mr. Dugan's insistence that only identical courses were eligible for flagging was consistent with Florida Department of Education policy. She telephoned Sharon Koon, her contact at the Department of Education, who verified that Algebra and Applied Math are viewed as equivalent and that the "F" in Algebra I could be flagged because M.P. took two semesters of Applied Math I during summer school. On October 8, 1998, M.P.'s parents returned to Mr. Dugan to inform him of Ms. Elliott's findings. Mr. Dugan was upset that Ms. Elliott had discussed the matter with M.P.'s parents before talking to him about the matter. He nonetheless consulted Daniel Scheuerer, the District's assistant superintendent for academics, who informed him that the two semesters of Applied Math I could indeed substitute for Algebra I. Therefore, Ms. Elliott's flag of M.P.'s "F" grade in Algebra I had been correct. However, Mr. Scheuerer also noted that if both semesters of Applied Math I were used to forgive M.P.'s grade in Algebra I, then there was nothing that could be used to forgive M.P.'s "D" grade in Applied Math I for the second semester of ninth grade. Thus, Ms. Elliott's flag of the "D" grade for Applied Math I would have to be removed even as the flag for M.P.'s "F" in Algebra I was reinstated. The end result was that M.P. remained ineligible for cheerleading. The evidence regarding M.P. establishes no more than a good faith misunderstanding regarding equivalent courses by Ms. Elliott. It was apparent that Mr. Dugan himself misunderstood the application of equivalencies prior to consulting Mr. Scheuerer. There was insufficient evidence that Ms. Elliott intentionally entered improper flags for M.P. in order to make her eligible for the cheerleading squad. Improper Use of Password As noted above, Mr. Dugan's October 8, 1998, memorandum to Mr. Berry outlined a new allegation against Ms. Elliott. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to gain access to the TERMS system, in contravention of Mr. Dugan's order that Ms. Elliott was not to use TERMS while she was under investigation. It must be noted that the allegation of improper use of Ms. Peters' password was not among the factual allegations set forth in the Administrative Complaint. No objection was lodged by counsel for Ms. Elliott on this basis. Ms. Elliott was aware of this allegation and fully joined the issue at the final hearing. It is found that the pleadings of the Administrative Complaint were effectively amended to conform to the evidence. Kathleen Peters was the director of guidance at Merritt Island. She was Ms. Elliott's direct superior. On September 30, 1998, Ms. Peters called in sick with a migraine headache. She was in the midst of rearranging the schedules for Spanish classes, and had a list of changes that had to be entered on the computer that day. She phoned the guidance office and reached Ms. Elliott, who was the only guidance counselor present at Merritt Island on that day. Ms. Peters explained the situation to Ms. Elliott, and asked her to make the schedule changes and corrections. Ms. Elliott told Ms. Peters that she could not use her own code to access the TERMS program. Ms. Elliott did not tell Ms. Peters that Mr. Dugan had prohibited her from using TERMS. At the hearing, Ms. Elliott indicated that her reticence was largely due to embarrassment over the investigation of her computer use. She was unsure whether her colleagues in the guidance office knew about the investigation, and was unsure herself of the investigation's scope and how much information she should share with Ms. Peters. Ms. Elliott asked Ms. Peters for her code to the TERMS system. Ms. Peters saw nothing unusual in this request, because it was not uncommon for TERMS to deny access to some users for apparently arbitrary reasons. Ms. Peters testified that she had been denied access on occasion. Ms. Peters gave her code to Ms. Elliott. Ms. Elliott attempted to access TERMS on her own computer, using Ms. Peters' code. She was denied access. She thought that the code might work if entered on Ms. Peters' computer. However, given the allegations that had already been made against her, Ms. Elliott thought she ought not be seen going into Ms. Peters' office and trying to use Ms. Peters' computer. She decided simply to tell Ms. Peters that she had tried but could not access TERMS. Ms. Elliott testified that she did not make changes to any records using Ms. Peters access code. Her testimony on this point was confirmed by Mr. Dugan, who admitted at the hearing that a subsequent investigation revealed no records that had been accessed by Ms. Elliott by way of Ms. Peters' security code. On October 5, 1998, during a scheduling discussion, Ms. Peters learned from Ms. Halbuer that Ms. Elliott was prohibited from using the computer. Ms. Peters then reported to Ms. Halbuer that Ms. Elliott had obtained her access code on September 30. Ms. Halbuer relayed this information to Mr. Dugan, who added this incident to the list of allegations related to Ms. Elliott in his memorandum of October 9, 1998: On September 15, 1998, I informed you that you were not permitted to use TERMS until the investigation reference [sic] the allegations against you were resolved. On Wednesday September 30, 1998, Mrs. Elliott did request and receive Mrs. Peters security code and did access TERMS without requesting authorization or receiving authorization. This allegation was sustained by the evidence at least insofar as Ms. Elliott obtained Ms. Peters' code and attempted to access TERMS. Ms. Elliott's culpability is mitigated by the exigency of the situation and by the fact that she did not actually make use of Ms. Peters' security code. Nonetheless, Ms. Elliott well understood that she was prohibited from accessing TERMS. There were numerous options available to her that did not involve direct insubordination to Mr. Dugan's directive. She could have obtained the assistance of the data entry clerk. She could have approached Mr. Dugan or Ms. Halbuer with her dilemma. She could have simply leveled with Ms. Peters as to why she was unable to use her own security code. However wronged she felt by the ongoing investigation, Ms. Elliott had no authority to disregard Mr. Dugan's order. Flagging in general As noted above, the investigation of Ms. Elliott continued even after the District removed her from Merritt Island and terminated her employment. In particular, Ms. Halbuer, the assistant principal, pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. At the hearing, the Department was unable to produce the complete files of some of the students whose records Ms. Halbuer investigated, because school policy dictated destruction of her investigative records after the passage of a certain amount of time. The complete files would have contained the final, official transcripts of the students as well as Ms. Elliott's counseling notes. In some instances, the only proof offered was Ms. Halbuer's conclusory memoranda attesting that certain students' grades had been improperly flagged. In other instances, only the unofficial, editing copy of the transcripts was provided. Ms. Halbuer's honesty is not in doubt. However, it would be inherently unfair to require Ms. Elliott to mount a defense as to these students, more than four years after the fact, without access to the cumulative files and her own counseling notes to refresh her memory. Thus, it must be found that the Department failed to provide prima facie evidence as to any of the fifty-six students save those discussed below. Ms. Elliott's understanding of the flagging procedure was markedly different than that of the administrators. To reiterate, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA is referred to in the District as "flagging." The text of the Grading Procedures quoted above does not expressly provide instruction as to the proper time for entry of a course flag. However, each District witness who testified on behalf of the Department stated that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the second grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Elliott testified that she never saw the written grade forgiveness procedure until after the allegations here at issue were first lodged, when her union representative obtained a copy from the District. Ms. Elliott first learned that the District had a forgiveness policy in the early 1990s when she was being trained by Nancy Rhoda, who was then the guidance department chair. Ms. Elliott was instructed to check the students' records for courses that they repeated, and to have those courses flagged. Ms. Elliott's consistent understanding of the policy was that a course could be flagged while the student was repeating the course. Ms. Elliott was one of three guidance counselors at Merritt Island, and was responsible for scheduling approximately 500 students every semester. At times, she was assigned upwards of 700 students. Part of her duties was to schedule her students into classes they wanted to repeat pursuant to the forgiveness policy. Each semester comprised three six-week grading periods. At the close of each six-week grading period, Ms. Elliott would receive computer printouts of each of her assigned students' grades. Thus, there would be a first, second, and third six-week report of the grades her students were receiving in their respective classes. Ms. Elliott typically flagged after she had two six-week grade reports before her, thus having a relatively solid basis for anticipating that the student was going to pass the repeated course. She testified that she flagged courses only when she was convinced the student was "doing fine" in the repeated course. Ms. Elliott would compile a list of students and courses to be flagged and give it to Jan Amico, the data entry clerk, after the second six-week grading period. The flags would be entered during the thirteenth or fourteenth week of the eighteen-week semester, depending on how long it took Ms. Elliott to meet with each student and review their progress. By this time, Ms. Elliott would know whether the student was passing the repeated class. Ms. Amico, who was the data entry clerk at Merritt Island for four years, testified at the hearing. She confirmed that Ms. Elliott's method of flagging had been consistent during Ms. Amico's tenure at Merritt Island. During the first six weeks of a semester, Ms. Elliott assisted all of her assigned students with their class scheduling problems. During the second six weeks, Ms. Elliott typically had more time to review each of her students' grades via the computer printouts provided each guidance counselor. She went through the grade printouts and contacted students who were failing classes to offer academic counseling and tutoring while they still had roughly nine weeks to improve their final semester grade. While Ms. Elliott tried to meet with each student in her charge during the middle of the term, she made it a priority to meet with students who were having difficulty passing classes, those needing special attention, and those she felt might need more support from their parents. If a student received a "D" or "F" grade on the first or second six-week grading report, Ms. Elliott would counsel that student. She would also meet with the teacher to see what could be done to help the student. If needed, Ms. Elliott would arrange for tutoring by one of the volunteers she had recruited from the community. These tutors included her own husband, Joe Elliott, who tutored many students in math. At the end of the semester, Ms. Elliott would meet with her students again. They would review the student's unofficial transcript to make sure the recorded grades were correct, and make any necessary corrections. If the student received a failing grade for a repeated class, Ms. Elliott would have the flag removed from the student's record. Ms. Elliott testified that she was in constant contact with college admissions officers, who asked her to flag courses so they could determine whether their applicants were retaking failed courses. Ms. Elliott stated that the admissions officers followed the students' progress and liked to know whether students applying to their colleges were making extra efforts to master difficult materials. Ms. Elliott testified that she had followed this flagging procedure since the early 1990's, that the teachers, her direct supervisor, the school's department chairs, and the assistant principal in charge of guidance all knew her method for flagging grades, and that no one had ever told her it was inappropriate until Ms. Halbuer did so in August 1998. Ms. Elliott testified that even when Ms. Halbuer told her that she should wait until the end of the semester to flag courses, there was no implication that Ms. Elliott had been doing anything wrong. Rather, Ms. Halbuer indicated that the new data entry clerk was just learning the TERMS system and was overwhelmed with work, and so the entering of course flags would have to wait. As a general matter, it is found that Ms. Elliott's practice of entering the flags prior to the student's receiving a final grade in the repeated course was against the District's policy as generally understood by the District administrators. However, nowhere was this general understanding reduced to writing in unequivocal terms. The understanding may be inferred from the written Grading Procedure, but nothing in the procedure may fairly be read to forbid Ms. Elliott's longstanding method of flagging. To the extent that Ms. Elliott's flagging of individual student grades followed the procedure she described, i.e., the student was enrolled in the repeated class, appeared to be passing the class at the two-thirds point of the semester when the flag was entered, and Ms. Elliott corrected the record at the end of the semester, she cannot be found to have violated a clearly stated policy of the District. Mr. Dugan, Ms. Halbuer, and Ms. Ebersbach all testified that Ms. Elliott's method of flagging artificially inflated her students' GPA's and distorted their relative class standing. This concern was valid but transitory, to the extent that Ms. Elliott followed her stated procedure. A student's GPA would be inflated for the four or five weeks of the semester between the time the flags were first entered and the final grades were posted. After the grades were posted, the flag would either be validated or removed by Ms. Elliott, ensuring the accuracy of the GPA and class standing reflected on the official transcript. As noted above, the Department was not able to produce the complete files for all of the fifty-six students whose records Ms. Elliott is alleged to have improperly flagged. The students discussed below were those for whom the Department was able to produce records sufficient to establish the circumstances of the flagging and to refresh Ms. Elliott's memory as to those circumstances. As to Student B.H., Ms. Halbuer discovered that Ms. Elliott entered a course flag for B.H.'s "F" grade in Algebra I Honors for the first semester of the 1995-96 school year, despite the fact that B.H. repeated Algebra I rather than the honors course. Ms. Halbuer testified that it is improper to flag an honors course with the grade from a regular course, even where the course material is the same. Ms. Elliott conceded that she flagged the honors course based on B.H.'s successfully completing the regular Algebra I course. Her rationale was that a student must receive a teacher's recommendation to enroll in an honors course, and no teacher would have recommended B.H. to repeat Algebra I Honors after she failed it once. Also, Ms. Elliott believed it proper to enter the flag because the course work in Algebra I was the same as Algebra I Honors, the only difference being that the latter class would be smaller, have a better teacher, and involve more homework. Ms. Elliott did not consult with her superiors prior to entering this flag, which had the effect of increasing B.H.'s GPA. It is found that Ms. Elliott improperly flagged B.H.'s grade for Algebra I Honors, but that she did so in a good faith, though mistaken, belief that it was proper to do so. As to Student D.H., Ms. Halbuer testified that she personally compiled and reviewed D.H.'s student records and found that Ms. Elliott entered an improper flag for D.H.'s "D" and "C" grades in Algebra II Honors for the first and second semesters of the 1995-96 school year, though D.H. repeated regular Algebra II. As with Student B.H., D.H. was not entitled to receive grade forgiveness for the grades received in the honors course when the honors course was not retaken. It is found that Ms. Elliott improperly flagged D.H.'s grade for Algebra II Honors, but that she did so in a good faith, though mistaken belief, that it was proper to do so. As to Student L.H., Ms. Halbuer found that Ms. Elliott flagged an "F" grade L.H. received in Algebra I in the second semester of the 1995-96 school year. For this flag to have been appropriate, L.H. would have had to either repeat the second semester of Alegbra I or complete two semesters of Applied Math II. L.H. in fact completed only one semester of Applied Math II. Ms. Halbuer testified that without the two semesters of Applied Math II or a successfully completed second semester of Algebra I, L.H. did not have the requisite math requirements for graduation. L.H. nonetheless was allowed to graduate from Merritt Island in 1998 without ever taking the second semester of Applied Math II, with a transcript certified by Ms. Elliott. Ms. Elliott testified that L.H. had the three math credits required to graduate, and met the graduation requirements that were in place for the class of 1998. It is found that the Department failed to demonstrate that L.H. should not have graduated, but did demonstrate that Ms. Elliott improperly flagged L.H.'s grade for Algebra I and offered no adequate justification for having done so. As to Student J. E.-N., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed the student's records and found that Ms. Elliott entered an improper course flag for an "F" in Classical Literature and an "F" in Applied Math III, both for the first semester of the 1997-98 school year. Ms. Elliott certified J. E.-N. for graduation in 1998. Without the two flags, J. E.-N. would not have had the requisite 2.0 GPA for graduation. Ms. Elliott admitted flagging the Applied Math III grade, but stated that she did so pursuant to a precedent set by Mr. Dugan when he was an assistant principal at Merritt Island. J. E.-N. was a student with very limited proficiency in English. Ms. Elliott testified that Mr. Dugan's practice had been to apply forgiveness for math classes to such students once they had passed the high school competency test in math. J. E.-N. had passed the high school competency test. As to the flag for Classical Literature, Ms. Elliott testified that J. E.-N. took English IV in night school, and that English IV was equivalent to Classical Literature. It is found that Ms. Elliott improperly flagged J. E.-N.'s grade for Applied Math III before consulting with Mr. Dugan or some other superior to ascertain that she was applying a recognized school policy. Ms. Elliott's flag of the Classical Literature class was another example of her belief that "equivalent" courses could count as repeated courses for purposes of flagging, whereas the administrators who testified consistently held that only identical courses could be repeated for forgiveness. As to both flags for J. E.-N., it is found that Ms. Elliott entered them in a good faith, though mistaken, belief that it was proper to do so. As to Student A.L., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed A.L.'s student records and found that Ms. Elliott improperly flagged a tenth-grade Algebra II Honors course prior to A.L.'s completing the same course and receiving a higher grade, which is against their interpretation of district policy. A.L. in fact repeated Algebra II Honors and passed the course in the eleventh grade. The evidence demonstrated that Ms. Elliott flagged the course prior to A.L.'s having successfully completed the retaken course, but that she did so in the good faith belief that it was proper to do so. Student M.M. had completed ninth grade at Jefferson Middle School, then transferred to Merritt Island for tenth grade in the 1998-99 school year and participated in cheerleading. Gary Shiffrin, the principal at Jefferson Middle School, testified that M.M. returned to the middle school during the fall of her tenth grade year and asked Mr. Shiffrin if she could speak to one of her former teachers. After the teacher spoke to M.M., Mr. Shiffrin learned that M.M. had requested the opportunity to make up some work she had missed from the previous semester at Jefferson Middle School. Mr. Shiffrin denied M.M.'s request to make up work in an attempt to receive a higher grade, because "the time element had certainly passed." Because he thought M.M.'s request was "kind of unusual," Mr. Shiffrin contacted Mr. Dugan and informed him of what had taken place. Mr. Dugan investigated the matter and discovered that, on August 13, 1998, Ms. Elliott had entered course flags for two semesters of Spanish I from M.M.'s ninth grade year at Jefferson Middle School. The resulting GPA made M.M. eligible to cheer. On August 21, 1998, Ms. Halbuer pulled and reviewed the records of all of Ms. Elliott's cheerleaders. She concluded that M.M. should not have had course flags on her record. She discussed the flagging issue with Ms. Elliott, as described above. On August 24, 1998, Ms. Elliott removed the flags. Removal of the flags meant that M.M. was no longer eligible to cheer. Her parents sought over $700.00 in reimbursement of cheerleading expenses from Merritt Island as a result of this incident. In the case of M.M., the Department did not offer complete records to indicate whether the student was enrolled in the Spanish courses at the time Ms. Elliott flagged her prior grades. Ms. Elliott contended that her removal of the flags was not an admission of wrongdoing, but an indication of her willingness to accept direction from Ms. Halbuer on the issue of flagging. Without the complete records, it cannot be determined whether Ms. Elliott flagged the grades pursuant to her understanding of the flagging policy, or whether she did so without any justification at all. It is found that the evidence was insufficient to demonstrate that Ms. Elliott violated clear District policy in flagging the grades of M.M. As to Student B.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed B.M.'s student records and discovered that Ms. Elliott had improperly flagged a "D" grade in Algebra II for the second semester of the 1997-98 school year. The flag was entered on August 13, 1998, though B.M. did not enroll for the second semester of Algebra II until February 1999. On February 15, 1999, Ms. Halbuer instructed the data entry clerk to remove the flag, thus reducing B.M.'s GPA. Ms. Elliott testified that B.M. was a learning disabled student whose parents monitored his progress closely to ensure he would be eligible for college. Ms. Elliott met with B.M.'s parents in August 1998, at the start of B.M.'s senior year. The parents were aware of the availability of grade forgiveness, and wanted to make sure Ms. Elliott knew that their son would be repeating both semesters of Algebra II during the 1998-99 school year. Ms. Elliott flagged the second semester of Algebra II with the intent of monitoring B.M.'s progress throughout the year and obtaining tutoring assistance if he encountered difficulty. Ms. Elliott testified that she mistakenly neglected to flag the first semester of Algebra I. Ms. Elliott testified that the flag served to notify colleges that B.M. was repeating the entire year of Algebra II, a sign of maturity in attempting to improve his grades and master the material. Ms. Elliott testified that she did monitor B.M.'s progress until she was forced off the Merritt Island campus. It is found that Ms. Elliott's flagging of B.M.'s second semester Algebra II course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had even enrolled to repeat the class. The distortion of B.M.'s GPA would have endured, not for a few weeks as in most instances of Ms. Elliott's flags, but for the entire 1998-99 school year, had Ms. Halbuer not removed the flag. Ms. Elliott testified that B.M.'s overall GPA was not inflated because there were other repeated classes on his transcript for which he did not receive credit. Ms. Elliott may have been correct on this score, but cannot justify an improper flag by pointing to other flags that should have been but were not entered. Ms. Elliott's testimony as to her salutary reasons for entering the flag is credited, but is insufficient to justify the timing of the flag in this instance. As to Student A.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed A.M.'s student records and found that, on August 26, 1998, Ms. Elliott entered an improper course flag for A.M.'s "D" grade in Algebra I for the first semester of the 1995-96 school year. This flag was entered after Ms. Halbuer's initial August meeting with Ms. Elliott as to the proper flagging procedure. A.M. was enrolled to retake Algebra I at the time of the flag, but had only just commenced the class. A.M.'s grade in the retaken Algebra I was not posted until January 1999. It is found that Ms. Elliott's flagging of A.M.'s first semester Algebra I course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had demonstrated progress sufficient to satisfy Ms. Elliott that she would likely pass the retaken course. As to Student B.W., Ms. Ebersbach and Ms. Halbuer testified that they each personally reviewed B.W.'s student records and discovered that, on September 10, 1998, Ms. Elliott changed B.W.'s letter grade in Integrated Science from a "D" to a "B" for the first semester of the 1998-99 school year. While conceding that her computer code appeared on the grade change, Ms. Elliott flatly denied changing B.W.'s grade. B.W. was not a student assigned to Ms. Elliott, and she had no recollection of him. Her planning book for the relevant date and time indicated that she was not even in the guidance office when the grade change was made. Ms. Elliott theorized that another counselor may have made the change, using her code. Ms. Elliott's denial is credited. Her testimony throughout this proceeding was forthright and honest, even when detrimental to her own case. Aside from the S.H. situation, which she adequately explained, Ms. Elliott was accused of changing a grade only in this one instance out of fifty-six alleged violations of District policy. It is found that the Department failed to demonstrate that Ms. Elliott changed B.W.'s Integrated Science grade. Testimony was also offered as to the following students: J. McD., S. McC., P.L., M.L., S.K., K.L., and a second student with the initials D.H. In the cases of these students, the Department failed to produce records sufficient to permit Ms. Elliott to answer the charges. The Department proffered the transcripts of S.K., K.L., P.L., S. McC., and J. McD. at the hearing as Exhibits 54 through 58. These were not admitted because they had not been provided to Ms. Elliott during the pre-hearing discovery process. It is noted that the failure to provide these transcripts to Ms. Elliott prior to the hearing was not due to any negligence or misfeasance by counsel for the Department. The documents were simply unavailable to the Department before the final hearing began. E. The "vendetta" defense Evidence was presented at the hearing aimed at demonstrating that Mr. Dugan, the principal of Merritt Island, pursued these allegations against Ms. Elliott not on their merits but because he held a longstanding grudge against her. This grudge was alleged to have its origin in Ms. Elliott's testimony in the criminal trial of Doris Roberts, a former teacher charged with committing sexual acts with students at Merritt Island. At the trial, there was some conflict in the testimony as to whether Mr. Dugan, then an assistant principal, had ignored information that should have led him to investigate Ms. Roberts well before her activities were finally exposed and stopped. Ms. Elliott's testimony at the criminal trial is claimed to have contradicted Mr. Dugan's testimony on that point. Ms. Elliott claimed that every school employee whose testimony at the criminal trial contradicted that of Mr. Dugan was subjected to harassment by him, and either retired from the District or transferred away from Merritt Island. Ms. Elliott presented the testimony of two witnesses, Marvin Gaines and Doris Glenn, who Ms. Elliott alleged were victims of Mr. Dugan's vendetta. Their testimony indicated that Mr. Dugan could be a harsh administrator, could be less than straightforward in his dealings with employees, and engaged in juvenile and unprofessional name-calling when displeased with subordinates. Ms. Glenn, a retired assistant principal with 33 years of experience at Merritt Island, made it clear that Mr. Dugan tended to be arbitrary. One's relationship with Mr. Dugan "depended on what he had for breakfast." Ms. Glenn went on say, "If you were in, you were in. If you were out, buddy, you were out. I mean solid out." Ms. Glenn testified that she spent a good deal of time in Mr. Dugan's bad graces, and attributed her retirement to the harassment ensuing from her testimony in the Roberts case. Significantly, Ms. Glenn stated that she had never known Mr. Dugan to invent false charges in an effort to harm an employee. Mr. Dugan would go over the work of a disfavored employee with a fine-tooth comb. In her words, "He'd be looking for [something wrong] if you were on his out list. He would be looking for any little flake of dandruff." If Mr. Dugan "got on you," then "you'd better be strong and you'd better be ethical. You better be able to clean your plate up good because if you messed up he'd have your ass." However, Ms. Glenn did not believe that Mr. Dugan would fabricate allegations against an employee. Mr. Gaines, who had 35 years with the District including ten years at Merritt Island, also had a poor relationship with Mr. Dugan. Like Ms. Glenn, Mr. Gaines believed that Mr. Dugan had a "list" of those he disliked. Mr. Gaines described Mr. Dugan as a "very retaliatory person" and a "big liar." However, the animosity in Mr. Gaines' case appeared related less to the Roberts case than to the fact that Mr. Dugan lobbied District administrators to pass over Mr. Gaines for a promotion. In fact, Mr. Gaines described his relationship with Mr. Dugan as "all right for a while" in the immediate aftermath of the Roberts case. While Mr. Gaines believed that Mr. Dugan had lied to him concerning the promotion, he had never known Mr. Dugan to fabricate allegations of wrongdoing. In summary, there was credible evidence that Mr. Dugan was vituperative and would not hesitate to go after a subordinate against whom he held a grudge. Mr. Dugan denied any such grudge against Ms. Elliott. Aside from the investigation itself, Ms. Elliott offered no evidence that Mr. Dugan was pursuing a vendetta against her. To the contrary, she testified that Mr. Dugan had been supportive of the cheerleading team. It is also noted that Mr. Dugan did not initiate the investigation of Ms. Elliott. Ms. Halbuer and Ms. Vann separately approached him with suspicions as to Ms. Elliott's actions. When Ms. Vann discussed her allegations at the principals' meeting, Mr. Dugan was not particularly eager to pursue them. He told Ms. Vann to document her allegations in writing before he would consider them. In any event, an alleged vendetta by Mr. Dugan against Ms. Elliott would have relevance only as a motive for bringing false allegations against her. No evidence was presented that Mr. Dugan ever fabricated evidence against any employee, including Ms. Elliott. The alleged grudge may have spurred Mr. Dugan to investigate the matter more fully. However, his motive is irrelevant because his factual allegations were essentially accurate, even though the conclusions he drew from them were overstated. IV. Summary of Findings Three material allegations of fact were set forth in the Administrative Complaint. The first allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification. It is found that the Department failed to offer clear and convincing evidence that Ms. Elliott improperly attempted to persuade the three faculty members from Cocoa Beach to change the grades of Student S.H. In fact, all three of the faculty members testified that Ms. Elliott did not ask them to change the grades. The second factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent changed the grades of one or more students to a grade higher than that assigned by the instructional staff member. These changes were made without academic or other proper justification. It is found that the Department offered clear and convincing evidence that Ms. Elliott changed the grades of Student S.H. However, the evidence also demonstrated that Ms. Elliott made those changes as a demonstration to S.H. of how she could potentially raise her GPA. Ms. Elliott had no intention of effecting permanent changes to S.H.'s grades, as evidenced by the fact that Ms. Elliott and S.H. acknowledged that S.H. was not eligible for cheerleading during the Fall semester of 1998. The third factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent "flagged" grades of one or more students in such a manner that the grades would not count in the computation of the student(s) grade point average, thereby artificially and improperly raising the grade point average of the student(s). It is found that the Department offered clear and convincing evidence that Ms. Elliott improperly flagged the grades of Students L.H., B.M., and A.M. It is found that the Department did not offer evidence sufficient to demonstrate that Ms. Elliott improperly flagged the grades of Students M.M. and B.W. It is found that the Department offered clear and convincing evidence that Ms. Elliott's flagging of the grades of Students M.P., B.H., D.H., J. E.-N., and A.L. violated the District's Grading Procedures as understood by District administrators. However, it is also found that Ms. Elliott's flagging of these students' grades was consistent with her understanding of the flagging policy and with the manner in which she had flagged grades for several years. It is found that the Department offered clear and convincing evidence that Ms. Elliott obtained Ms. Peters' TERMS access code without fully disclosing the reasons why she could not use her own code, and further that she attempted to access the TERMS program after she had been expressly forbidden to do so by Mr. Dugan. It is found that the Department failed to prove by clear and convincing evidence that Ms. Elliott's motive for flagging grades was to make the subject students eligible to participate in cheerleading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(4)(b) and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3)(a) or (d), or Rule 6B-1.006(5)(h), Florida Administrative Code. It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active guidance counselor in the State of Florida. DONE AND ENTERED this 8th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2003.
The Issue Whether Respondent, Latunya Gibbs ("Respondent" or "Gibbs"), committed the violations as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner, BCSB, is located at 600 Southeast Third Avenue, Fort Lauderdale, Florida. BCSB is in charge of the Broward County School District ("the District"). Robert W. Runcie is the Superintendent of BCSB. The Superintendent is statutorily obligated to recommend the placement of school personnel and to require observance with all laws, rules, and regulations. He is authorized to report and enforce any violation thereof, together with recommending the appropriate disciplinary action against instructional personnel employed by the Board. Gibbs is employed by BCSB as a teacher pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. She was first hired by BCSB on August 24, 1993. Gibbs holds a Florida Educator's Certificate in Elementary Education. The Superintendent recommended that Gibbs be terminated from her employment with BCSB. On October 2, 2018, the Board adopted the Superintendent's recommendation. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements through the Board's adoption of the Superintendent's recommendation for termination. Gibbs was assigned as a teacher at MLE for school years 2015-16, 2016-17, and 2017-18. In 2015-16, Gibbs was assigned to teach second grade. On September 2, 2015, she was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. During the 2016-17 school year, Gibbs was assigned to teach third grade at MLE. Gibbs had 18 students in her class. On May 24, 2017, Gibbs received notice of an investigation into an allegation that she falsified records pertaining to student evaluations and achievements for promotion to the fourth grade. These records included student assessments for the Benchmark Assessment System and third grade Portfolios. On June 19, 2017, Gibbs received notice that the investigation was expanded to include an allegation that she submitted falsified documents to utilize FMLA leave and that she falsified a training certificate. Fabricated BAS Assessments The District uses the Fountas & Pinnell Benchmark Assessment Systems ("BAS"). It is used to determine a student's independent, instructional, and frustration reading levels. BAS assessments are conducted one-on-one by the teacher. In part 1 of the assessment, the student reads aloud and talks about the system's leveled fiction and nonfiction books, while the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the text. BAS assessments are done for all students in grade levels Kindergarten through 3, and for those students in grades 4 and 5 who score a one or two on the Florida Standards Assessment ("FSA"). For BAS, there are three assessment periods each school year. The District deadline for the third assessment period was May 26, 2017. MLE set an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met. On May 11, 2017, Gibbs was provided with a substitute so she could have the opportunity to complete BAS assessments. After school on Friday, May 12, 2017, there was a Response to Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz"), MLE's Principal, that she had completed the BAS assessments for two of her 18 students. Gibbs stated that she was confident that she would be able to complete all student assessments by the May 19 deadline, and that she did not need a substitute for an additional day. Gibbs was at school on Monday, May 15, 2017, but then was absent for an extended period. She was absent on May 16 through 19, and 22 through 24. Principal Velez asked Ms. Shamequia Wright ("Wright"), a third grade teacher and union steward, and Ms. Hend Hafez ("Hafez"), an MLE Literacy Coach, to help assess Gibbs' students. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin ("Hennequin"), third grade team lead, entered Gibbs' classroom to look for the students' BAS folders. They could not find the BAS folders, and only found blank scoring sheets. They held up a BAS folder and asked the students where they could find the folders. The students informed Hennequin and Wright that they had never seen the folders. Hennequin and Wright left Gibbs' classroom to get their own materials so they could start assessing students. Wright proceeded to assess Gibbs' students on May 19 and May 22., 2017 On May 23, 2017, Hafez was asked to gather the BAS assessments that Wright had completed. Wright told Hafez that the assessments were on the round table in Gibbs' classroom. Hafez collected the BAS materials from the round table in Gibbs' classroom and provided them to the office. Upon trying to enter the BAS scores into the BASIS system, it was discovered that Gibbs had entered all of the students' scores on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for 16 students on that day. Principal Veliz knew this was an impossible task and, therefore, questioned the validity of the scores. Principal Veliz asked the District for a review. By May 26, 2017, the office had received all of the protocols--the student BAS folders containing the data for all three of the assessment periods--from all of the third grade teachers with the exception of Gibbs. The Assistant Principal, Joan Rosa ("Rosa"), made an announcement over the P.A. reminding all of the teachers who had not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought any of the protocols for any of the three assessment periods to the office. On May 26, 2017, Mildred Grimaldo ("Grimaldo"), Director of Literacy from the District, went to MLE to conduct a review and reassess Gibbs' students. The team conducted a reassessment of five students. Hafez reassessed the remaining students. It was found that the scores entered in BASIS on May 15, 2017, by Gibbs did not align with the reassessments completed by Grimaldo's team or Hafez. Of the 18 students in Gibbs' class, only six scored a three or above on the FSA. Six students scored a two and five students scored a one. One student was absent. Gibbs was scheduled for mandatory BAS training on January 13, 2017, but she did not attend. Gibbs received a verbal reprimand for missing the training. Gibbs received training as part of a calibration conversation that took place on April 4, 2017. The Literacy Coach also had previously shared (November 2016) a link to a Brainshark presentation, which included suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs did not review the Brainshark presentation. Incomplete Portfolios and Falsified Promotion Testing Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1 indicate that any student in third grade who does not meet the reading promotion criteria, which is a two or higher on the FSA, can be promoted to fourth grade based on good cause promotion criteria. The good cause promotion criteria consists of the completion and passing of a third grade Portfolio as an alternative to a passing FSA score. All third grade teachers are required to have their students complete the third grade Portfolio. Student Portfolios are based on work completed by the students in connection with what they are being taught by the teacher. The teachers are to teach the State standards. The Portfolios gauge students' mastery of the reading information standards, reading literature standards, and language standards. There are eight cycles that were put together by the District to help teachers teach the reading information standards, reading literature standards, and language standards. Each cycle has certain tasks that students must complete. The tasks are to be graded by the teachers and kept as part of the Portfolios. The grade is based on a four point system, with one being the worst and four being the best. If a student does not score a three out of four on a particular standard, the student is then given an additional passage and multiple choice test. The student must receive at least a 70% on the multiple choice test to show proficiency in the standard. Scores for the Portfolio tasks as well as the multiple choice test, if necessary, are recorded on a form entitled Third Grade Assessment Portfolio: Cumulative Student Record Form ("Portfolio Record Form"). MLE had an in-house deadline of May 1, 2017, to submit all Portfolios along with the summary sheets. The District's deadline was May 5, 2017. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing the last tasks for the Portfolios. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form indicated a perfect score, four out of four, for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple choice test for every standard for every student. Had a student actually received a perfect score on the tasks, the multiple choice test would have been unnecessary. This raised a red flag for Veliz. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs' box of Portfolios. The box was sealed, almost completely, with duct tape. As a team, Veliz, Hafez, and Rosa opened Gibbs' Portfolio box. They spot checked a few of the students' work and noticed significant discrepancies in what Gibbs recorded and the student product. Hafez and Rosa were asked to review all of Gibbs' students' Portfolios. It took a week to review all of the Portfolios. The team found errors that included, but were not limited to: incorrect grading; the sample answer was provided (i.e., the teacher answer key); missing tasks; missing test items; task given multiple times despite mastery of the task; blank or incomplete tasks; discrepancy in time frame of dates; items done as homework as opposed to class work; missing multiple choice sheets; and the inclusion of non-summative task items. Veliz reached out to Ms. Nicole Mancini, Director of Elementary Learning, to have someone from the District rescore the Portfolios. Dr. Teri Acquavita and Ms. Shellie Gory ("Gory"), supervisors for the District, conducted a District review. There were discrepancies between the District review and Gibbs' grading. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data along with the alternative portfolio multiple-choice assessments. Gibbs submitted the monthly data. Gibbs did not submit the multiple-choice alternative data, and has never submitted the multiple-choice data. However, on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple-choice tests. Gibbs told all of the parents that their students would be promoted. Unfortunately, five of Gibbs' students scored a one on the FSA. The Portfolios should have been used as good cause promotion criteria for those students, but they were too deficient. The students were promoted and placed into intervention programs the following year. Falsified Test Administrator Certificate School year 2016-17 was the first year that the FSA was to be given to students via computer. All MLE teachers were directed by Veliz to complete a Test Administrators' ("TA") Certification Course from American Institutes for Research ("AIR"). The FSA was given on April 27 and 28, 2017. On February 7, 2017, the school was scheduled to take an infrastructure practice test to make sure the school's system had the capacity to handle the testing by computers. On February 6, 2017, Gibbs received assistance from School Counselor, Ms. Gigi McIntire ("McIntire"), and the Micro-Tech, Mr. Osvaldo Hernandez ("Hernandez"), to create her password and receive a link for the infrastructure practice test. Gibbs' class did not take the infrastructure test. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her class had not completed the infrastructure test and the importance of practicing with her students prior to the FSA. During the meeting, Gibbs claimed that she had not been given the link and she had not received the password until the very end because Hernandez had helped all other teachers and left her for last. This was not true, however, because Gibbs received her password and the link on February 6, 2017. Gibbs submitted a TA Certificate on March 13, 2017, which had her name handwritten on it and which did not state a date of completion of the course. The certificate looked as though it was a screen shot from the computer. The certificates that were submitted by all other teachers looked different. They had their names typed on the certificate and the date that the course was completed. Gibbs was supposed to have her students practice taking the test on a computer. The expectation was that students would have done this multiple times before having to take the FSA. On April 24, 2017, Veliz approached some third grade students and asked them how their computer practice test was going. Several students from Gibbs' class stated that they had not practiced yet because their teacher did not know how to log in. Students from other classes stated that they had practiced several times. This alarmed Veliz. Veliz asked McIntire to provide copies of all the TA Certificates. Veliz saw that the only certificate with a name handwritten in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony Nembhard ("Nembhard") confirmed that Gibbs had only used her password to log in on February 6, 2017, and had not logged in at any other time. Nembhard provided Veliz with Case No. 545991, and showed Veliz how to print a report indicating that Gibbs had not completed the course. It was uncovered that a teacher could scroll through the course without actually taking it and get to a "Congratulations!" page that looked like what Gibbs had submitted as her certificate. A screen shot of this page could be printed out. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to assist students in practicing prior to the test. None of the students had any idea how to log in, did not know which browser to use, and every single one of them indicated that it was their first time accessing this practice test. The students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When Gibbs was asked if she had her students do the practice test, Gibbs indicated she had done everything she needed to do. Gibbs' defense, that her printer was not functioning properly to print a complete TA Certificate, is not credible. Gibbs apparently printed a TA Certificate in which everything printed perfectly, except her name, which she handwrote. She offered no explanation for failing to provide instruction to her students on how to utilize the computer so they would be ready to take the FSA. Falsified FMLA Certification of Healthcare Provider Gibbs sought and was granted Family Medical Leave Act ("FMLA") intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave every year thereafter from 2013 to 2015, and was approved by Ms. Marjorie Fletcher ("Fletcher") of the BCSB Leaves Department on each instance. Gibbs submitted a FMLA certificate of healthcare provider form from ARNP Princy Bhat-Bhardwaj ("ARNP Princy"), certifying Gibbs' need for another FMLA leave for the period of November 15, 2015, to November 15, 2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care provider. The frequency and duration section of the form on paragraph 11 were left blank. In order to process Gibbs' leave request, Fletcher faxed this form back to Metcare to request that it fill in the frequency and duration section of the form. The form was faxed back to Fletcher with the frequency and duration section of the form filled in. However, Fletcher noticed that the beginning and ending dates of the certification on paragraph nine, as well as the date of the signature on the bottom of the form, were whited out and written over. Fletcher called Metcare to verify their fax number which was fax-stamped at the top of the form. A person at Metcare could not verify the phone number listed on the top of the form. ARNP Princy confirmed to Fletcher that the handwritten portion of the date of the signature was not her handwriting. ARNP Princy also confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified that if she signs a form, it is her practice to date the form at the same time. According to ARNP Princy, Metcare's procedure for filling out and executing FMLA certifications is directed by the patient. In some instances, they fill out and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is handed back to the patient to submit to their employer. Gibbs submitted another FMLA certificate of healthcare provider from ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29, 2016, to June 10, 2016. On May 23, 2017, legal counsel for Metcare, confirmed to the Leaves Department that it had not completed a FMLA certificate for Gibbs since January 2015. It is evident that one or more FMLA forms submitted on behalf of Gibbs were falsified. However, no evidence was presented that the documents were altered by Gibbs or that they were ever in her possession prior to their submission by someone to the Leaves Department. Although no one other than Gibbs would seemingly have a motive to modify these forms, Gibbs denied falsifying them. While Fletcher certainly had a legitimate basis to question the validity of these forms, there was insufficient evidence to demonstrate that Gibbs knowingly submitted false information to secure ongoing intermittent leave. Prior Discipline Gibbs has prior disciplinary actions consisting of two verbal reprimands and several corrective actions (i.e., summary memoranda). She received a verbal reprimand on January 27, 2017, for failing to attend the scheduled Professional Learning Community on BAS at McNab Elementary on January 13, 2017. She received another verbal reprimand on December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement. Gibbs received received summary memos concerning: the need to attend all scheduled afternoon meetings; the need to promote positive interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period; the need to closely monitor and track student progress; the need to adhere to timelines and complete school-wide assessments in a timely manner; the need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for intentionally exposing students to embarrassment with references to boyfriends and girlfriends; the need the adhere to timelines and complete school-wide assessments in a timely manner; and the need to use guided reading during the reading block. On September 2, 2015, Gibbs was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. The personnel investigation involved two issues. One issue was about conduct that occurred during the 2014-15 school year when she was assigned to Walker Elementary as a VPK teacher. The alleged conduct was that she charged parents a fee if their child was picked up late from VPK and that she planned on charging a fee for the end of school graduation ceremony. The other issue was for conduct that occurred during the 2015-16 school year. It was alleged that on August 26, 2015, she pushed a student out of the classroom and pinched his back. Based on these two incidents, the Education Practices Commission issued a letter of reprimand to Gibbs, which is part of her BCSB personnel file. Ultimate Findings of Fact The evidentiary record overwhelmingly reveals a pattern by Gibbs of misconduct, gross insubordination, incompetence, willful neglect of duty, and violation of school board policies. The evidentiary record amply supports suspension without pay and termination of her employment for just cause.
Conclusions For Petitioner: Denise Marie Heekin, Esquire Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 6th day of March, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, 10th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Petitioner was employed by Respondent as an annual contract employee for approximately three years. Petitioner's third annual contract with Respondent was for an initial term of August 27, 1987, through June 19, 1987. The initial term of employment was extended until June 30, 1987. Petitioner has been paid all sums due for employment services rendered through June 30, 1987. State and Federal Certifications At all times material to this proceeding, Petitioner possessed a State of Florida Department of Education Teacher's Certificate ("Teaching Certificate"). The Teaching Certificate, in accordance with Section 231.17, Florida Statutes, 2/ authorized Petitioner to teach "JR ROTC" at the secondary level from July 1, 1985, through June 30, 1990. During his three year employment with Respondent, Petitioner served as an Assistant Aerospace Science Instructor ("AASI") for the United States Air Force Junior Reserve Officer Training Corps ("AFJROTC") program established at Northeast High School. Petitioner was required to be certified by the Air Force to instruct AFJROTC before he could obtain his Teaching Certificate from the Florida Department of Education. The Air Force certification requirement is separate and distinct from the Florida certification requirement. A member of Respondent's instructional staff who has a Teaching Certificate for "JR ROTC", who is decertified by the Air Force, and who is no longer eligible to teach "JR ROTC" may be assigned by the Respondent to a field other than "JR ROTC" pursuant to the authority granted to Respondent in Sections 231.095, 231.096, 231.141, 231.15, and 231.251, Florida Statutes. 3/ At all times material to this proceeding, Petitioner had a Teaching Certificate and was "properly certificated" within the meaning of Section 231.36(1)(a), Florida Statutes. The Air Force and the Respondent Northeast High School agreed with the Air Force to provide a program of instruction, to maintain standards prescribed by the Air Force, to employ instructors approved by the Air Force, and to ensure that the total work was divided as outlined in AFROTC Regulation 30-1. AFROTC Regulation 30-1, Section A, Part 2.b. The principal was designated in AFROTC Regulation 30-1 as the ROTC program director at Northeast High School. AFROTC Regulation 30-1, Section C, Part 12. The principal at Northeast High School evaluates the Aerospace Science Instructor ("ASI"). AFROTC Regulation 30-1, Section C, Part 12. The ASI is the senior instructor in any AFJROTC program. AFROTC Regulation 30-1, Section A, Part 1.c. The ASI evaluates an AASI for purposes of the AFJROTC evaluation. AFROTC Regulation 30-1, Section C, Part 16.b.(2). In addition, the principal is required to either endorse or not endorse the Evaluation Report ("ER") of an AASI rendered by the ASI for purposes of the AFJROTC program. An appeal of either an unsatisfactory ER rendered by an ASI or an endorsement of such an ER by the principal at Northeast High School is required to be made to the school superintendent in accordance-with AFROTC Regulation 30- 1, Section C, Part 16.f. The Air Force has no control over either the manner in which an ER is rendered by an ASI or the conduct of an appeal hearing by school officials. Neither the ER nor the appeal hearing becomes an Air Force matter until the decision of the superintendent is appealed. 4/ The superintendent's decision regarding the appeal of an unsatisfactory ER of an AASI rendered for proposed of the AFJROTC program at Northeast High School may be appealed by the AASI to the AFROTC Director of Operations, Maxwell AFB, Alabama 36112-6663. AFROTC Regulation 30-1, Section C, Part 16.f. If an unsatisfactory rating is appealed and is not raised to satisfactory, an inquiry officer is appointed by the AFROTC Commandant or Vice Commandant to determine if continued Air Force certification is warranted. AFROTC Regulation 30-1 Section C, Part 16.f. If the inquiry substantiates the unsatisfactory ER, the Air Force Commandant or Vice Commandant notifies the AASI of his or her decertification and ineligibility for employment as an AFJROTC instructor. Action taken by Respondent, through either the principal at Northeast High School or a representative of the superintendent, in the form of either an endorsement of an unsatisfactory ER rendered by an ASI for purposes of the AFJROTC program or the appellate review of such an endorsement, may result in decertification by the Air Force of an AASI and his or her ineligibility for employment as an AFJROTC instructor. AFROTC Regulation 30-1, Section C, Parts 12 and 16.f. Air Force decertification alone has no effect on the Teaching Certificate of a member of Respondent's instructional staff who has a Teaching Certificate in the subject area of "JR ROTC." Similarly, Air Force decertification alone has no effect on the status of an AASI as Respondent's employee. The State and the Respondent A member of Respondent's instructional staff who is an AASI receives a separate evaluation from the principal at Northeast High School in the AASI's separate capacity as a member of Respondent's state certified instructional staff. The evaluation rendered by the principal of Northeast High School is Respondent's official evaluation of an AASI for purposes of the AASI's employment by Respondent. 5/ Respondent may properly suspend or terminate a member of Respondent's instructional staff who is an AASI for "just cause", within the meaning Subsection 231.36(1)(a), Florida Statutes, 6/ after the AASI is provided with the requisite statutory due process prescribed in Subsection 231.36(6)(a). An AASI, therefore, who is suspended or terminated by Respondent for either an unsatisfactory official evaluation or decertification by the Air Force is entitled to written notice of the charges against him or her and a hearing conducted in accordance with Chapter 120, Florida Statutes. 7/ The, purpose of such a hearing is to determine whether the AASI's suspension or termination was for just cause. The Air Force and the Petitioner Prior to his employment with Respondent, Petitioner was employed as an AFJROTC instructor for four years and seven months at the Milwaukee Trade and Technical High School in Milwaukee, Wisconsin. Prior to that, Petitioner had 20 years military experience during which time Petitioner was a jet aircraft mechanic, a crew chief, a flight chief, and a trainer-supervisor. Petitioner was responsible for squadron training, classroom instruction, assuring that all enlisted members of his squadron were able to perform their jobs properly, and written testing for promotion eligibility. Finally, Petitioner has an Associate Arts degree and additional college credits from the Upper Iowa University. The AFJROTC program at Northeast High School received the Air Force honor of "Meritorious Unit" for each of the first two years Petitioner was employed as an AFJROTC instructor at Northeast High School. Meritorious Unit is the second highest honor an AFJROTC program can receive. During the third year of Petitioner's employment as an AFJROTC instructor, in April, 1987, the AFJROTC program at Northeast High School received the Air Force honor of "Honor Unit." Honor Unit is the highest honor an AFJROTC program can receive. It is awarded to only 20 percent of the AFJROTC programs annually, and is difficult to obtain. The AFJROTC program at Northeast High School won Honor Unit on the basis of an inspection conducted in February, 1987, by Daniel D. Eddy, Captain, United States Air Force. Captain Eddy received a masters degree in personnel management from Central Michigan University. Captain Eddy was the area manager for Junior ROTC units in central and south Florida at the time he conducted the inspection of the AFJROTC program at Northeast High School. The inspection conducted by Captain Eddy in February, 1987, evaluated over 26 criteria for the AFJROTC program at Northeast High School including: leadership, overall appearance of the AFJROTC unit, unit supply, inventory control, security of supplies, cadet attitudes, and the structure of the cadet corps itself. 8/ During his inspection, Captain Eddy noted that Petitioner had done an outstanding job in Petitioner's area of responsibility - management of supply uniform inventory and second year cadet drill sequences. Captain Eddy concluded that Petitioner's performance of his responsibilities contributed to the receipt of Honor Unit by the AFJROTC program at Northeast High School. Petitioner received separate evaluations from his ASI and from Respondent during the first two years of his employment as an AFJROTC instructor at Northeast High School. The Air Force ERs were rendered by Colonel Richard Rung, the ASI in the AFJROTC program at Northeast High School and Petitioner's supervisor for purposes of the AFJROTC program. Respondent's evaluations of Petitioner were rendered by Mr. Robert Schmelz, Principal, Northeast High School. All of Petitioner's evaluations during the first two years of his employment at Northeast High School were satisfactory overall. Colonel Rung did not rate Petitioner below an excellent in any individual performance rating. 9/ Respondent's official evaluations of Petitioner considered various performance criteria including Petitioner's competence, attitude, and conduct. Petitioner's First Unsatisfactory ER During Petitioner's third annual contract year with Respondent, Petitioner received aid unsatisfactory ER from Colonel Rung on May 1, 1987. Colonel Rung rated Petitioner poor in planning and evaluation, supply, aerospace science, leadership education, supervisory/employee relations, attitude, integrity, and cooperation. Colonel Rung's written remarks in the unsatisfactory ER stated that Petitioner failed to comply with the Colonel's directives and listed approximately 12 examples of Petitioner's alleged failure to follow directives. 10/ Petitioner did not concur in the unsatisfactory ER rendered by Colonel Rung. Instead, he denied the accuracy of both the "poor" ratings and Colonel Rung's written remarks. Petitioner submitted a written rebuttal to the unsatisfactory ER from Colonel Rung. Mr. Schmelz was not personally aware of any deficiencies in Petitioner's job performance and initially refused to concur in Petitioner's unsatisfactory ER. 11/ When Mr. Schmelz concurred in the unsatisfactory ER rendered by Colonel Rung, Mr. Schmelz relied on notes and representations provided to him by Colonel Rung pertaining to the alleged deficiencies contained in the ER. The official evaluations by Respondent were the satisfactory evaluations rendered by Mr. Schmelz. 12/ Frank Berry, the Assistant Principal of Northeast High School at the time, was responsible in relevant part for maintaining the inventory of school equipment and supervision of the north campus at Northeast High School. Mr. Berry performed an inventory of AFJROTC uniforms toward the end of the 1986-1987 school year and found no discrepancy. The supply room was clean. Petitioner always completed paperwork for Mr. Berry in a timely manner including permission forms for trips, requests for field trips, and cut slips. Petitioner was allowed to leave the school premises during planning periods by arrangement through the front office of the school. Lieutenant Colonel Timothy Tschetter, the other AASI that worked with Petitioner at Northeast High School, disagreed with the unsatisfactory ER rendered by Colonel Rung with respect to Petitioner. Colonel Tschetter worked very closely with Petitioner in the AFJROTC program at Northeast High School. Colonel Tschetter found that Petitioner's performance was outstanding and that Petitioner was not the kind of noncommissioned officer with whom Officers had trouble. Colonel Rung's evaluation of Petitioner was totally out of character for Petitioner. Colonel Rung attributed the alleged changes in Petitioner's performance to Petitioner's dissatisfaction over pay cuts imposed on all AFJROTC personnel. Petitioner was dissatisfied with those pay cuts and stated on several occasions that he could not afford to work as an AFJROTC instructor if that was all that he could earn. After the pay cut, however, no lack of excellence in Petitioner's performance was observed by Colonel Tschetter. Petitioner was always there for the cadets, and everything Petitioner did was as good or better than Petitioner had done before the pay cuts. There was no decline in Petitioner's performance in: testing and evaluation of students in leadership and drill classes; security procedures and cleanliness in the supply room; issue and retrieval of uniforms; safety procedures involving drill inspections on hard surfaces during hot weather; failure to prepare cadet personnel records; and: refusal to update the Air Force regulation manuals. It was difficult for Colonel Tschetter to grasp what Colonel Rung saw in Petitioner's performance that caused Colonel Rung to rate Petitioner unsatisfactorily. Colonel Rung had a managerial style that criticized rather than praised or corrected. Colonel Rung, Colonel Tschetter, and Petitioner were civilian employees of who were retired from the Air Force. Colonel Rung treated Colonel Tschetter and Petitioner as Air Force personnel rather than civilian employees. On one occasion, after a difficult day on the drill field, Colonel rung criticized Petitioner. Petitioner responded that if Colonel Rung worked as hard as Petitioner did, then Colonel Rung would have room to criticize. After that incidents Petitioner fell from grace with Colonel Rung. Nothing Petitioner did could satisfy Colonel Rung. Colonel Rung showed Petitioner's unsatisfactory ER to Colonel Tschetter before it was given to Petitioner. Colonel Rung told Colonel Tschetter that the only way Petitioner could avoid the unsatisfactory ER would be to resign and work elsewhere. While Colonel Rung was writing Colonel Tschetter's ER, Colonel Rung interrogated Colonel Tschetter regarding Petitioner's unsatisfactory ER. When Colonel Tschetter refused to support the findings in Colonel Rung's unsatisfactory ER, Colonel Rung became angry. Colonel Rung threw an unsatisfactory ER of Colonel Tschetter at Colonel Tschetter and told Colonel Tschetter that the only way the unsatisfactory ER could be avoided was for Colonel Tschetter to resign and work elsewhere. During the first six weeks of the 1987-1988 school year, Colonel Rung did not renew the officer rank of 10-15 cadets who were cadet major, cadet captain, or cadet lieutenant during the 1986-1987 school year. 13/ These cadets, in Colonel Rung's opinion, did not perform adequately. They did not support Colonel Rung and did not support the new cadet leaders who supported Colonel Rung. Instead, these 10-15 cadets belonged to the faction of cadets that supported Petitioner. Colonel Rung felt that these 10-15 cadets had been manipulated by Petitioner. 14/ Petitioner's Second Unsatisfactory ER When Petitioner rebutted his unsatisfactory ER dated May 1, 1987, Colonel Rung prepared a second unsatisfactory ER dated May 14, 1987. The second unsatisfactory ER was slightly more favorable than the first unsatisfactory ER. The second unsatisfactory ER rated Petitioner as "poor" in only four categories rather than the six categories in which petitioner was rated "poor" in the first unsatisfactory ER. The "poor" ratings in "planning and evaluation" and "leadership education" in the first ER had been upgraded to "average" in the second ER. Colonel Rung contested the factual representations contained in Petitioner's rebuttal and added to the second ER an allegation that Petitioner had misrepresented facts in an official statement. Mr. Schmelz also concurred in Colonel Rung's second unsatisfactory ER of Petitioner based on information provided to Mr. Schmelz by Colonel Rung. Appeal to the School Superintendent, Petitioner appealed his two unsatisfactory ERs to the Superintendent of Schools in accordance with AFROTC Regulation 30-1, Section C, Part 16.f. Petitioner's appeal hearing was conducted by Mr. Thornton G. Humphries and Mr. Damian Huttenhoff on June 15, 1987. At the time of the hearing, Mr. Humphries was the Director of Secondary Education for the northeast area of Broward County, and Mr. Huttenhoff was the Director of Employee Relations for Respondent. The Superintendent of Schools was not present at the appeal hearing. The appeal hearing was not conducted in accordance with Chapter 120, Florida Statutes, within the meaning of Subsections 231.36(6)(a) and 231.36(3)(e)4.a. 15/ Petitioner was given approximately 15 minutes to present his case at the appeal hearing. 16/ Petitioner was prevented from discussing the substance of the information in the written materials that he had submitted to Mr. Humphries and Mr. Huttenhoff, and was prevented from calling witnesses in his own behalf including the witnesses Petitioner had listed in his written materials. 17/ Mr. Humphries concluded that Petitioner was Air Force personnel and Air Force regulations did not require Mr. Humphries to call Petitioner's witnesses. Mr. Humphries and Mr. Huttenhoff voided the second, more favorable, unsatisfactory ER and made no change in the first unsatisfactory ER. Petitioner received written notice of the decision in the appeal hearing by letter dated June 23, 1987, and signed by Mr. Humphries. The decision in the appeal hearing was further clarified in a letter to the Air Force dated July 2, 1987, and signed by Mr. Huttenhoff. The letter attached "Official School Board" evaluations of both Colonel Tschetter and Petitioner. These evaluations reflected a level of satisfactory performance for both individuals. The letter stated: It is the District's position that the appeal of the Air Force evaluations is an internal Air Force matter. The School Board declares its intent to be neutral in this dispute. To that extent, the signature of Mr. Schmelz on the Air Force evaluation forms should not be used as verification of Colonel Rungs' concerns. The official evaluation of Sergeant Evans and Lieutenant Colonel Tschetter is the attached School Board employee evaluation. Appeal to the Air Force Petitioner appealed the decision of Mr. Humphries and Mr. Huttenhoff to the AFROTC Director of Operations at Maxwell AFB in Alabama in accordance with AFROTC Regulation 30-1, Section C, Part 16.f. An inquiry Officer was assigned to investigate Petitioner's appeal. The inquiry officer questioned neither the cadets that supported Petitioner nor their parents, including those who were listed by Petitioner as witnesses who could substantiate Petitioner's rebuttal of the unsatisfactory ERs rendered by Colonel Rung. The AFROTC Evaluation Report Appeal Board concluded on July 13, 1987, that Petitioner performed most of his primary duties in an "average" to "excellent" manner. The Board recommended that Petitioner's "poor" rating in "planning and evaluation", "supply", and "aerospace science" be upgraded to "average." The Board concluded, however, that Petitioner's frustration over salary reductions had affected his attitude and performance in a negative manner. The Board sustained Petitioner's "poor" ratings in "leadership education", "supervisory employee relations", and "attitude, integrity, and cooperation." 18/ The Board concluded that Petitioner's overall rating should remain "unsatisfactory", but recommended that Petitioner be placed on a "probationary" period. The Board further recommended that and on-site evaluation of the internal problems in the AFJROTC program at Northeast High School be conducted by AFROTC as soon as possible. The Vice Commandant at Maxwell AFB decertified Petitioner by letter dated August 20, 1987. 19/ By separate letter also dated August 20, 1987, Mr. Schmelz was notified of Petitioner's decertification. Contrary to the recommendation of the Board, Petitioner was not placed on a probationary period. No evidence was presented that an investigation of the internal problems in the AFJROTC program was ever conducted. Colonel Tschetter was not decertified by the Air Force as a result of his unsatisfactory ER by Colonel Rung. Colonel Tschetter returned to work at Northeast High School for the 1987-1988 school year and was a member of the "board" that did not renew the officer rank of cadets who had held similar ranks the previous school year but who supported Petitioner in his dispute with Colonel Rung. 20/ Contractual Right to Continued Employment Petitioner was employed by Respondent as a vocational teacher. Vocational teachers and other teachers who qualify for certificates on the basis of non-academic preparation are entitled to all of the contractual rights and privileges granted to other instructional personnel holding equivalent certificates. Subsection 231.361(1), Florida Statutes. Petitioner was a member of Respondent's instructional staff within the meaning of Subsection 228.041(9). The Collective Bargaining Agreement in effect between the Broward Teachers Union and Respondent from August 16, 1986, to August 15, 1989 ("CBA") 21/ applied to Petitioner's annual contract with Respondent for the 1986-87 school year. Article 2, Paragraph A of the CBA. Article 18, Paragraph O of the CBA specifies: All annual contract employees whose contracts are not being renewed shall receive written notice of same no later than May 15th. Any such employee not given such notice by May 30th shall be reemployed for the following school year. (emphasis added) Thomas P. Johnson, PhD., was the Associate Superintendent of Human Resources for Respondent until 1989. Dr. Johnson stated that Petitioner's personnel records contained no indication that Petitioner was recommended in the Fall of 1986 or the Spring of 1987 for reappointment in the 1987-1988 school year. In the absence of such a recommendation for reappointment, Dr. Johnson erroneously concluded that Petitioner's contractual right to continued employment with Respondent expired on June 30, 1987 and, thereafter, Petitioner had no status with Respondent. 22/ Dr. Johnson's conclusion erroneously applied the requirement for a recommendation of reappointment in Subsection 231.36(3)(a), Florida Statutes, to Petitioner's annual contract. The statutory requirement for a recommendation of applies only to professional service contracts and does not apply to annual contracts. Petitioner had a contractual right to an annual contract for the 1987-1988 school year. The annual contract Petitioner signed with Respondent for the 1986-1987 school year expressly provided that it was amended to comply with the CBA. In the absence of timely written notice that Petitioner would not be re-employed for the 1987-1988 school year, both the CBA, and Petitioner's annual contract mandated Petitioner's re-employment for the 1987-1988 school year. If Respondent did not wish to reappoint Petitioner for the 1987-1938 school year, Respondent was contractually required to give Petitioner written notice of Respondent's decision by May 30, 1987. Otherwise, Petitioner had a contractual right to continued employment for the 1987-1988 school year. The unsatisfactory ERs rendered by Colonel Rung for purposes of the AFJROTC program on May 1 and May 14, 1987, did not suffice as written notice that Petitioner's contract with Respondent was not being renewed. The official evaluations of Petitioner in his capacity as a civilian employee of the Respondent were those rendered by Respondent. Respondent's official evaluations of Petitioner rated Petitioner's performance as satisfactory. Petitioner did note receive written notice of the decision in his appeal hearing until June 23, 1987, or later. Although Mr. Schmelz signed the unsatisfactory ER rendered by Colonel Rung, Mr. Schmelz had no knowledge of Colonel Rung's allegations other than information provided by Colonel Rung. Respondent stated in writing on July 2, 1987, that its official record was the "Official School Board" evaluations of satisfactory performance. Respondent further stated that it was neutral in Petitioner's dispute with Colonel Rung which Respondent considered to be an internal Air Force matter. Petitioner had a reasonable expectation of employment for the 1987- 1988 school year and a contractual right to such continued employment. Respondent failed to give Petitioner written notice by May 30, 1987, that Petitioner's annual contract was not being renewed for the 1987-88 school year. No Abandonment Petitioner did not abandon his employment with Respondent. Mr. Schmelz instructed Petitioner on June 30, 1987, not to return to work until the Air Force matter was resolved. 23/ Respondent never provided Petitioner with written notice that Petitioner had been separated from his position with Respondent under conditions of abandonment. 24/ Instead, Mr. Schmelz hired a Sergeant Clark to replace Petitioner. Sergeant Clark was assigned to the AFJROTC program at Dillard High School in Broward County, Florida. Mr. Schmelz had used Sergeant Clark over the summer to teach the leadership part of the AFJROTC program at Northeast High School. Mr. Schmelz got in touch with the principal at Dillard High School, arranged a transfer, and notified the Air Force. 25/ The other two positions in the AFJROTC program act Northeast High School for the 1987-1988 school year were filled by Colonel Rung and Colonel Tschetter. Petitioner could not abandon a position by failing to report for a position that Respondent had filled by hiring Sergeant Clark. The actions of Respondent were sufficient to rebut the presumption that Petitioner abandoned his employment with Respondent. Statements by Petitioner during the 1986-1987 school year that he was not returning the next year because of the salary reduction for AFJROTC instructors were net an expression of Petitioner's intent. Petitioner's statements were belied by Petitioner's actions. Petitioner indicated on his Air Force preference card due on February 13, 1987, that he wished to remain in his position as an AFJROTC instructor. 26/ Petitioner obtained a part time job teaching real estate seminars on weekends to supplement his income for the salary reduction he suffered as an AFJROTC instructor. 27/ When asked by Colonel Rung to resign, Petitioner refused and unequivocally expressed his intent to preserve his option to return for the 1987-1988 school year. Petitioner told Mr. Schmelz in May, 1987, that Petitioner did not wish to leave at the end of the 1986-1987 school year and was being pressured by Colonel Rung to resign. 28/ Petitioner sought reinstatement to his position as an AFROTC instructor through every means available to him. Although some of the means were misdirected, 29/ they were undertaken in Petitioner's mind for the same purpose; reinstatement. 30/ Petitioner joined the Broward Teachers Union, filed a grievance, and appealed his decertification to the Air Force. Petitioner offered to accept the recommendation of probation from the Air Force if he was reinstated. Petitioner filed an ethics complaint against Colonel Rung, to no avail, sought help Congressionally, and applied for recertification by the Air Force. The means undertaken by Petitioner to be reinstated to his former position may have been misdirected, but they were not the actions of one who has abandoned his position. The actions of Respondent made it unnecessary for Petitioner to show up for work. Respondent filed Petitioner's position by hiring Sergeant Clark and by giving Sergeant Clark a written contract which Petitioner had the right to receive pursuant to the CBA. 31/ Respondents acted in a manner that was consistent with its assumption that decertification by the Air Force had the effect of terminating Petitioner from his employment with Respondent without further action by Respondent. 32/ A constructive abandonment that is deemed by the Respondent, but neither intended nor reasonably expected by the Petitioner, has the indicia of a termination. 33/ Suspension or Termination Petitioner was either suspended or terminated by Respondent on June 30, 1987. It is unnecessary to distinguish between suspension and termination because either was an improper dismissal of Petitioner under the facts in this proceeding. The facts and circumstances that preceded and followed the events of June 30, 1987, however, are more consistent with a finding that Petitioner was terminated by Respondent. Petitioner was instructed by Mr. Schmelz on June 30, 1987, not to return to his job until the Air Force matter was resolved. While Mr. Schmelz denied that he instructed Petitioner not to return to Northeast High School until the Air Force matter was resolved, 34/ his denial conflicts with other testimony received in evidence and is inconsistent with the facts and circumstances that preceded and followed June 30, 1987. The denial by Mr. Schmelz conflicts with the testimony of Petitioner and Colonel Tschetter. Petitioner and Colonel Tschetter stated in separate testimony that Mr. Schmelz instructed them not to return to work until the Air Farce matter was resolved. Whatever words were actually used by Mr. Schmelz, both Petitioner and Colonel Tschetter were left with the unequivocal understanding that they were not to return to their jobs until the Air Force matter was resolved. There was no doubt in the mind of either AFJROTC instructor concerning the substance of the instructions from Mr. Schmelz. The denial by Mr. Schmelz is inconsistent with the his own actions. When the Air Force did not decertify Colonel Tschetter, Mr. Schmelz reinstated Colonel Tschetter for the 1987-1988 school year. When the Air Force decertified Petitioner, Mr. Schmelz hired Sergeant Clark to replace Petitioner. Mr. Schmelz used Sergeant Clark during the summer to teach the leadership class in the AFJROTC program at Northeast High School. Mr. Schmelz used Sergeant Clark at a time when Mr. Schmelz knew that there were too few students at Northeast High School during the 1986-1987 school year to justify the continued employment of three AFJROTC instructors; much less four AFJROTC instructors. After Mr. Schmelz was notified by the Air Force on August 20, 1987, that Petitioner was to be decertified on August 28, 1987, Mr. Schmelz neither contacted Petitioner to determine if Petitioner intended to return for the 1987- 1988 school year nor contacted Petitioner to instruct him not to return for the 1987-1988 school year. Instead, Mr. Schmelz conducted one interview and hired Sergeant Clark to replace Petitioner for the 1987-1988 school year. 35/ Colonel Rung, Colonel Tschetter, and Sergeant Clark were assigned to the AFJROTC program at Northeast High School at the beginning of the 1987-1988 school year. They comprised the members of the "board" that decided not to renew the ranks of those cadets who had supported Petitioner rather than Colonel Rung. 36/ Colonel Tschetter was subsequently assigned to another school as an adjunct instructor. The denial by Mr. Schmelz is inconsistent with the procedures followed by Colonel Rung in rendering the unsatisfactory ERs concerning Petitioner. Colonel Rung's Air Force supervisors and Mr. Schmelz knew of and condoned the procedures used by Colonel Rung. 37/ There were too few students at Northeast High School during the 1986- 1987 school year to justify the continued employment of three AFJROTC instructors. 38/ The need to staff down for the 1987-1988 school year was evidenced by enrollment figures in October, 1986, and May, 1987. 39/ Article 26 of the CBA prescribes the procedures to be followed by Respondent for the reduction of personnel. Colonel Rung thought it would not be necessary to staff down because he thought the problem would automatically be resolved by Petitioner's unsatisfactory ER. 40/ Colonel Rung wrote a letter of resignation for Petitioner's signature on or about March 23, 1987. 41/ The letter of resignation was effective at the end of June, 1987. Petitioner refused to sign the letter of resignation and expressed his desire to stay at Northeast High School. Colonel Rung told Petitioner that Petitioner did not have the option of staying because Colonel Rung would write an unsatisfactory ER for Petitioner if Petitioner did not resign. Colonel Rung showed Petitioner the unsatisfactory ER on April 27, 1987, and again asked Petitioner to resign in order to avoid the unpleasantness of an unsatisfactory ER. Colonel Rung offered to make Petitioner's termination report a satisfactory one but Petitioner refused to resign. Colonel Rung stated in his second unsatisfactory ER of Petitioner that his procedures were known to and condoned by his Air Force supervisors and Mr. Schmelz. Mr. Schmelz concurred in Colonel Rung's second unsatisfactory ER of Petitioner. The substance of the separate steps undertaken by Respondent, when considered as a whole, demonstrate Respondent's suspension or termination of Petitioner irrespective of the form in which each separate step was cast and irrespective of the denial by Mr. Schmelz concerning the events of June 30, 1987. 42/ Respondent erroneously assumed that Petitioner's decertification by the Air Force had the effect of terminating Petitioner from his employment with Respondent without further action by Respondent. Furthermore, Respondent's actions or inaction, contributed to Petitioner's decertification by the Air Force. Respondent's position at the formal hearing was that Petitioner's Teaching Certificate was a vocational certificate which entitled Petitioner to teach only "JR ROTC." Respondent erroneously determined that Subsection 231.361(2), Florida Statutes, precluded petitioner from teaching in any "regular" K-12 program. 43/ Once the Air Force decertified Petitioner, Dr. Johnson erroneously concluded that no further action was required by Respondent. 44/ Mr. Humphries stated that Petitioner would not have a job with Respondent if Petitioner was not certified by the Air Force. Mr. Humphries was the Central Area superintendent at the time of his testimony at the formal hearing. The Central Area Superintendent is the managing agent for the school system in that area. 45/ Mr. Humphries was of the opinion that the disposition of the dispute between, Petitioner and Colonel Rung by the Air Force would be dispositive of the question of whether Petitioner would be re-employed by Respondent for the 1987-1988 school year. Mr. Schmelz concurred in the unsatisfactory ERs rendered by Colonel Rung without any first-hand knowledge of the allegations in the unsatisfactory ERs. Mr. Humphries and Mr. Huttenhoff failed to conduct Petitioner's appeal hearing in accordance with the provisions of Subsections 231.36(3)(e)4.a. and 120.57(1)(a), Florida Statutes. Mr. Humphries prevented Petitioner from calling witnesses in Petitioner's own behalf and prevented Petitioner from discussing any matter in the written materials Petitioner submitted at the appeal hearing. Mr. Humphries and Mr. Huttenhoff voided the second unsatisfactory ER that was more favorable to Petitioner on the ground that Colonel Rung was without authority to render the second unsatisfactory ER. Colonel Rung believed that the problems associated with having to staff down for the 1987-1988 school year would be solved by Petitioner's unsatisfactory ER. The procedures used by Colonel Rung in his unsatisfactory ERs of Petitioner were known to and condoned by Mr. Schmelz. Mr. Schmelz employed Sergeant Clark during the summer of 1987 at a time when Mr. Schmelz knew of the need to staff down for 1987-1988 school year. Sergeant Clark was not an existing member of Respondent's instructional staff. After Mr. Schmelz was notified by the Air Force of Petitioner's decertification, Mr. Schmelz hired Sergeant Clark to replace Petitioner in the AFJROTC program at Northeast High School. The recommendation to reappoint Petitioner for the 1987-1988 school year typically would have been made by Respondent in the fall of 1986 or the spring of 1987. There was no indication in Petitioner's personnel file that Petitioner was recommended for reappointment for the 1987-1988 school year. However, Respondent neither provided, Petitioner with timely notice that he would not be reappointed for the 1987-1988 school year nor entered into an annual contract with Petitioner. Instead, Respondent filled Petitioner's previous position by hiring Sergeant Clark and gave Sergeant Clark a written contract which Petitioner had the right to receive pursuant to the CBA. When Petitioner was suspended or terminated by Respondent, Petitioner was a member of the Northeast High School instructional staff, within the meaning of Subsection 231.36(6)(a), and possessed a contractual right to continued employment with Respondent pursuant to his annual contract for the 1986-1987 school year and the CBA. Respondent made no finding that Petitioner had been suspended or terminated for "just cause" within the meaning of Subsections 231.36(1)(a) and 231.36(6)(a), Florida Statutes. Respondent provided Petitioner with neither the written notice of charges against him nor a hearing conducted in accordance with Chapter 120, Florida Statutes, as required by Subsection 231.36(6)(a). Remedies Article 33, Paragraph A of the CBA provides: Any claim by an employee(s) .. that there has been a violation... of any provision of this Agreement may be processed as a grievance as hereinafter provided... (emphasis added) If an employee elects to seek redress of a grievance through the arbitration procedure prescribed in the CBA, Article 33 of the CBA, Paragraph D, provides in relevant part: ... Both parties agree that the award of the arbitrator shall be final and binding.... [and] ... The disposition of the Board shall be final and binding and shall not be subject to court or administrative review. Petitioner signed a grievance complaint with the Broward Teachers Union during the summer of 1987 challenging his unsatisfactory ER from Colonel Rung. 46/ Petitioner did not elect to utilize the arbitration procedure prescribed in Article 33 of the CBA to challenge the failure of Respondent to perform acts required by the CBA. Instead, Petitioner requested a formal hearing conducted in accordance with Chapter 120, Florida Statutes, pursuant to Subsection 231.36(6)(a), to challenge the failure of Respondent to perform acts required by Subsection 231.36(1) and 231.36(6)(a). Back Pay Petitioner earned $23,819.09 annually as Respondent's employee during the initial term of his annual contract for the 1986-1987 school year. In addition, Petitioner received $10,000.00 annually in Air Force retirement pay. 47/ Petitioner worked for approximately nine months subsequent to his termination by Respondent on June 30, 1987. During those nine months of employment, Petitioner earned $80.00 a week or approximately $2,880.00. 48/ Approximately $1,920.00 of the $2,880.00 was earned in 1987 and $960.00 of the $2,880.00 was earned in 1988. Petitioner earned an additional $2,040.00 in 1988 over and above his retirement pay. 49/ Petitioner was contractually entitled to be compensated by Respondent for the 1987-1988 school year in accordance with Article 18, Paragraph O of the CBA, in the amount of $23,819.09. 50/ Petitioner actually earned $4,920.00 during the 1987-1988 school year. The difference between the amount Petitioner was contractually entitled to earn for the 1987-1988 school year and the amount Petitioner actually earned is $18,899.09. Petitioner was contractually entitled to be compensated by Respondent for the 1988-1989 school year in the amount of $23,819.09. No evidence was presented that Petitioner earned any amount during the 1988-1989 school year over and above his retirement pay. 51/ The difference between the amount Petitioner was contractually entitled to earn for the 1988-1989 school year and the amount Petitioner actually earned is $23,819.09. Petitioner was contractually entitled to be compensated by Respondent for the 1989-1990 school year in the amount of $23,819.09. No evidence was presented that Petitioner earned any amount during the 1988-1989 school year over and above his retirement pay. The difference between the amount Petitioner was contractually entitled to earn for the 1988-1989 school year and the amount Petitioner actually earned is $23,819.09. The aggregate amount of salary Petitioner was contractually entitled to from Respondent for the 1987-1988, 1988-1989, and 1989-1990 school years was $71,457.27. The amount Petitioner actually earned over and above his retirement pay was $4,920.00. The difference between the amount Petitioner was contractually entitled to earn for the same period and the amount Petitioner actually earned was $66,537.27. Other Benefits No evidence was presented concerning any benefits of Petitioner's employment with Respondent other than salary. Therefore, there is no evidence that Petitioner lost any such benefits including insurance benefits or seniority. 52/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent reinstate Petitioner as a member of Respondent's instructional staff with back pay through the date of reinstatement; and Respondent assign Petitioner either to teach in an out-of-field area, within the meaning of Sections 231.095 and 231.096, Florida Statutes, that is not in a regular academic field of the kindergarten through grade 12 school program, as a teacher's aide, or in any other manner authorized by applicable law. In the event Respondent determines that Petitioner does not qualify for assignment in accordance with the preceding paragraph, Respondent should suspends or terminate Petitioner in accordance with the requirements of Subsection 231.36(6)(a), Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1990.
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001.
Findings Of Fact At all times material hereto, respondent, Marion C. Strange, held Florida teacher's certificate No. 296394, covering the areas of Elementary Education, Mental Retardation, and Specific Learning Disabilities. Since at least 1979, she has been employed by the citrus County School Board as a teacher of exceptional students at Crystal River High School. Her teaching duties included keeping complete, current and accurate records on her exceptional students. These record keeping duties are required of the Citrus County School System by federal and state authorities and are necessary for the school system to remain eligible for federal and state funds, which pay the costs of educating exceptional students. Exceptional students are defined by Section 228.041(18), Florida Statutes, as students who have been classified under regulations of the state board of education as unsuited for enrollment in regular classes in public schools or who are unable to be adequately educated in the public schools without the provision of special classes, instruction, facilities or related services. The education of exceptional students is strictly regulated by federal, state and local school board laws and regulations. Exceptional students are taught differently than students in regular public school classes. A basic element in the education of exceptional students is the preparation and maintenance of an Individual Education Plan (IEP) for each exceptional student. IEP's are reviewed on an annual basis and are considered the backbone of the special education process. Respondent, as an exceptional education teacher, was responsible for maintaining an IEP for each of her students. An IEP is necessary to evaluate the students' educational level, to establish short and long-term educational objectives for the student, to develop alternative ways to accomplish the objectives, to provide a systematic method for implementing the objectives, to record the progress of the plan and to establish a means for the school administration to review and control the education of the student. The proper preparation and maintenance of IEP's is a basic responsibility of the special education teacher. Critical to the preparation and maintenance of IEP's is the annual IEP review conference. Under Citrus County School Board regulations and policy, the annual review conference takes place at a meeting where school professionals, with varied areas of expertise, confer, evaluate the student's progress, make recommendations, and decide on the appropriate instructional program for the student. It is a multi-disciplinary "team" approach to managing the student's education program. The annual IEP review conference is mandatory. Failure to hold the conference is a violation of federal, state, and School Board rules and policies; deprives the child of the educational assistance to which he or she is entitled under law; and jeopardizes continued federal and state funding of the School Board's exceptional education program. Respondent was repeatedly instructed, as were all other teachers of exceptional students, that every IEP must be reviewed at least once a year through an IEP review conference. The School Board's Operations Manual requires the following persons to attend and participate in the annual review conference: the exceptional education teacher, a school psychologist, and a parent. At Crystal River High School, the psychologist also acted as the LEA representative, the designated representative of the school board. The Operations Manual states that the following additional people may participate in the annual conference: a guidance counselor, the mainstream classroom teacher, the principal, the student, other individuals invited by the parent, or other supportive personnel. Although not required by the Operations Manual, at Crystal River High School the mainstream teacher and guidance counselor were expected to participate in the annual review conference. The exceptional education teacher is responsible for assuring that the annual IEP review conference is held and documented in the student's IEP records. The exceptional education teacher schedules the conference, invites the required people, and records it. As a means of documenting that the required conference took place, the School Board requires that participants in the conference sign the IEP's. The requirement that attendees sign the appropriate IEP is a requirement made explicit by the Operations Manual, copies of which are given to each teacher, and by instructions at annual training sessions. Exceptional education teachers, including respondent, are well aware of this requirement. Beginning in June, 1980, and continuing through 1983, respondent was frequently cited for record keeping violations. Her supervisor repeatedly asked her to correct numerous errors and omissions in her students' IEP's. In June, 1980, Neil S. Weiss, Coordinator of Exceptional Students Programs for the Citrus County School Board, reviewed respondent's student IEP records. He found discrepancies and sent her a memorandum, dated June 6, 1980, in which he directed her attention to the Operations Manual and correct procedures to follow. On September 23, 1981, Mr. Weiss again reviewed respondent's IEP records, examining, in depth, the records of six students. He found at least five serious problems with those records and discussed them with respondent. On March 3, 1982, Mr. Weiss again reviewed respondent's records and found incomplete IEP forms. Disturbed by her continued record keeping deficiencies, Mr. Weiss wrote a letter, dated March 5, 1982, identifying the errors, explaining the seriousness of her failure to keep adequate records, and offering assistance. He considered this to be a letter of reprimand and treated it as such; it was made a part of her personnel file. On December 10, 1982, Mr. Weiss visited respondent's classroom and, once again, reviewed her exceptional students' folders. After finding substantial problems in more than half of her files, he discussed the matter with her and wrote her a letter, dated December 22, 1982, expressing concern. In his experience, her chronic record keeping failures were unprecedented. Never before had he experienced similar problems with a special education teacher in the Citrus County school system. In his December letter to respondent, Mr. Weiss advised her that her records were deficient and violated state and county rules and procedures. He noted that many of her IEP's had expired, and offered her the in-service training assistance of Patricia Stayments, a former teaching principal who was employed by the School board as a training consultant. He concluded the letter with an explicit warning: "If deficiencies in this area are not corrected by you by April 1, 1983 I may have to recommend that your teaching contract be returned from continuing to annual status." (Petitioners' Exhibit No. 6) This was the first time he had given her a specific deadline for bringing her records into compliance. In January, 1983, at the request of Mr. Weiss, Ms. Stayments approached respondent and offered her assistance. Respondent initially declined the offer but later changed her mind and sought her assistance. Their first meeting took place on February 24, 1983. At that time Ms. Stayments reviewed 27 of respondent's files and found substantial problems in 19 of them. Ms. Stayment documented these deficiencies, in detail, by making handwritten notes. (Petitioners' Exhibit No. 16) The files of numerous special education students either lacked an IEP annual review form, or, if such a form existed, lacked the required signatures of participants. (Petitioners' Exhibit No. 16) At that meeting, and in subsequent meetings on March 1, 2, and 24, 1983, Ms. Stayments discussed these deficiencies with respondent. At their final meeting on March 24, 1983, it appeared to Ms. Stayments that, except for four student folders, respondent had brought her records into compliance. She reported the progress to Mr. Weiss. She failed, however, to detect several discrepancies. Several signatures of annual IEP conference participants, previously noted as missing, were now included on "corrected records," but were back-dated to a time prior to Ms. Stayments' initial meeting with respondent. The previously imposed deadline for bringing respondent's records into compliance was April 1, 1983. On April 11, 1983, Mr. Weiss reviewed the IEP files of Marion Strange to determine compliance. At first, the records appeared to be acceptable. He then noticed that, on one IEP, the signature of Ann Cummins, a school psychologist, was misspelled "Cummings." (Ms. Cummins, had been the LEA representative at the Crystal River High School for the past 4 years. She was the designated representative of the School Board administration at IEP annual conferences.) Mr. Weiss then found other IEP's that had Ms. Cummins' signature misspelled. He then showed the misspelled signatures to Ms. Cummins, who verified that the signatures were false. Mr. Weiss then examined more closely the other IEP's and, after investigation, found numerous instances where signatures of professional personnel were forged, giving the false impression that the records were complete, that the IEP annual conferences were held and attended as required, and that the students were being educated in accordance with local, state, and federal requirements. The forgeries are described below. Respondent's IEP records contain the false signature of Ms. Cummins, as the LEA representative on 14 IEP annual review forms. The signatures were unauthorized. In fact, on the dates when many of the IEP annual conferences supposedly took place, Ms. Cummins was not at Crystal River High School. Many of the signatures were misspelled, "Cummings." (Respondent had earlier sent a routine letter to students' parents in which she made the same mistake in spelling Ms. Cummins' name.) The false signatures were affixed during 1982 and 1983. Several of the signatures were affixed between February 24, 1983, and April 11, 1983, for the apparent purpose of satisfying Ms. Stayments' February 24, 1983, criticism of unsigned or missing IEP review forms. Respondent's IEP annual review records also contain the false and unauthorized signature of George Moonschiene, a math teacher, on the IEP records of John Dubois, one of her exceptional education students. The false signatures indicated that Mr. Moonschiene had attended an annual IEP review conference concerning this student on October 19, 1982. He had not. On February 24, 1983, Ms. Stayments had complained to respondent that this particular student's IEP form had no signatures. By April 11, 1983, the form contained the unauthorized and forged signature of Mr. Moonschiene. Respondent's IEP records also contain the false and unauthorized signature of Gerald Schuman, an English teacher, on the IEP review forms of at least four exceptional education students: James Morrow, Debra Hollis, Greg Burress, and Richard Schaefer. The false signatures indicated that Mr. Schuman, as a mainstream teacher, attended IEP review meetings on these students. In fact, these were not his students and he did not attend any IEP review meetings concerning them. On February 24, 1983, Ms. Stayments had pointed out to respondent deficiencies in the IEP records of each of these students. Respondent's IEP records also contain the false and unauthorized signature of Linda Alexander, a guidance counselor at Crystal River who was expected to participate in IEP annual reviews. Her signature was forged on the IEP review forms for at least five exceptional education students: Debra Hollis, John DuBois, David Lenhard, James Marrow and Ronald Parker. The forged signature indicated that she had attended annual IEP review meetings on these students; she had not. At the February 24, 1983, meeting with respondent, Ms. Stayments pointed out deficiencies in the IEP records of four of these five students. The deficiencies in three of the forms involved missing signatures. John Dubois' IEP review record had no signatures. At least in his case, the forged signature was added between February 24, 1983, and April 11, 1983. Respondent's IEP annual review records for Doran Mulder also contain the forged and unauthorized signature of his parent, Calvin Mulder. The forged signature falsely indicates that Mr. Mulder attended his son's IEP annual review. A handwriting analyst employed by the Florida Department of Law Enforcement compared respondent's handwriting with the forged signatures of Ann Cummins, Jerald Schumann, Linda Alexander, and George Moonschiene. His resulting report was inconclusive: There are some similarities between the known writing of Marion F. [sic] Strange (K-1 thru K-21) and portions of the questioned signatures in the names of "Ann S. Cummings" and "Linda Alexander" on the above mentioned exhibits; however, there are differences present which cannot be reconciled on the basis of the material at hand. Therefore, no definite opinion can be reached with respect to whether or not Marion F. [sic] Strange (K-1 thru K-21) executed any of the questioned signatures on Exhibits Q-1 through Q-21. (Respondent's Exhibit No. 3) The evidence forcefully, and convincingly, supports the inference, now drawn, that respondent either alone or in combination with another--forged the signatures of Ann Cummins, Jerald Schumann, Linda Alexander, George Moonschiene and Calvin Mulder on the IEP annual review forms described above. She forged these signatures to make it appear that these persons had participated in annual IEP review meetings, when they had not; and that the students involved had received IEP reviews in accordance with local, state, and federal law, which they did not. She intended to deceive her supervisors into believing that she was conducting IEP reviews and keeping IEP review forms, as required. These inferences are based on circumstantial evidence which is compelling. No other theory or hypothesis has been posited which is plausible, or even rational. The falsified forms were in respondent's control and it was her duty to see that they were complete and accurate. It was also her duty to arrange for and convene the annual IEP review meetings for her exceptional education students. Her tenure and, conceivable, even her job were in jeopardy because of her seemingly chronic inability to comply with IEP annual review requirements, including record keeping and documentation. She had been formally reprimanded, and placed on a deadline for bringing her records into compliance. As of February 24, 1983, her records were replete with error and omissions; the deadline for compliance was fast approaching, little more than a month away. Under the pressure of these events, she had not only the opportunity but a clear motive to "correct" her records by forging, either alone or in concert with another, the required signatures. Many of the forged signatures were added to the documents between February 24, 1983, and April 11, 1983, when they were discovered by Mr. Weiss. There is no evidence that anyone, other than respondent, had anything to gain from falsifying the records in question. By forging signatures and falsifying important student records, respondent breached the trust which her employer, her students and their parents place din her as a school teacher. She misled her supervisors and deprived some exceptional students of the annual IEP review to which they were lawfully entitled. To this extent, her students were adversely affected by her actions. Her integrity and honesty are now in doubt; her supervisor has lost confidence in her. Her effectiveness as an employee of the School Board has been seriously reduced. She is no longer able to serve effectively as an employee of the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's continuing contract with the School Board of Citrus County be terminated by the School Board; and That her Florida teacher's certificate No. 296394, be permanently revoked by the Education Practices Commission. DONE and ORDERED this 20th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Wilson Jerry Foster, Esq. Suite 616 Lewis State Bank Bldg. Tallahassee, Florida 32301 Richard S. Fitzpatrick, Esq. 213 N. Apopka Avenue Inverness, Florida 32650 Philip J. Padovano, Esq. Post Office Box 873 Tallahassee, Florida 32302 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald Griesheimer, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Roger Weaver, Superintendent School Board of Citrus County 1507 W. Main Street Inverness, Florida 32650 ================================================================= AGENCY FINAL ORDER ================================================================= RALPH D. TURLINGTON, as Commissioner of Education Petitioner, vs. CASE NO. 83-2889 MARION C. STRANGE, Respondent. /
