The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “School Board”), had just cause to terminate Respondent, Joshua Crill (“Respondent” or “Mr. Crill”), for misconduct in office as alleged in the Administrative Complaint.
Findings Of Fact Based on the testimony and exhibits offered at the hearing and the stipulated findings of fact in the Prehearing Stipulation, the following Findings of Fact are made. Petitioner is the constitutional entity authorized to operate, control, and supervise public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; see also § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff. See § 1012.22(1)(f), Fla. Stat. At all times relevant to the allegations in the Administrative Complaint, Mr. Crill was employed as a teacher at Legacy Elementary School, pursuant to a professional services contract. On October 20, 2020, Mr. Crill reported he was involved in an incident at school. Specifically, a student in his classroom was climbing a bookcase. Mr. Crill intervened to prevent the student from harming himself, when the student scratched Mr. Crill’s arm causing a deep laceration and bleeding. Mr. Crill was concerned about possible infection, and thus, he was referred to a workers’ compensation doctor who provides treatment to School Board employees who are injured while working. As part of the evaluation for the possible workers’ compensation-related injury, and consistent with School Board policy, Mr. Crill submitted to a routine urine drug screen. The Medical Review Officer (“MRO”), Dr. Stephen Kracht, provided a report on the urine drug screen to the School Board, which found that the urine sample tested positive for marijuana. Mr. Crill did not challenge the administration of the test or seek a second test to confirm the results of the first test. Mr. Crill also did not challenge the accuracy of the results of the drug screen as reported by the MRO. Mr. Crill acknowledged that he used cannabidiol (“CBD”) products to treat pain related to wear and tear to his shoulder resulting from his military service in the United States Marine Corps (“USMC”) before his employment with the School Board.1 At no point prior to his positive drug screen did Mr. Crill notify his supervisor or the Board that he was using CBD. He only used Ibuprofen before using the CBD products. Mr. Crill pointed to his use of Tropic Twist for the positive test result. Tropic Twist is an over-the-counter product and, according to the packaging, is THC2 infused. Mr. Crill explained that he was introduced to Tropic Twist by a family friend during a gathering that took place before his injury. The family friend gave Mr. Crill the Tropic Twist package of gummies. Mr. Crill did not fully examine the package but he recalled that the package had a hemp leaf on the front and appeared similar to other CBD products that he previously used. The packaging also had the phrase “THC Infused” on the front underneath the package label, next to the hemp leaves. However, Mr. Crill testified that he did not see the language regarding “THC Infused” on the package. 1 Mr. Crill served in the USMC from 2011 through 2015. 2 THC (tetrahydrocannabinol), is the primary psychoactive component of cannabis (marijuana). Throughout his testimony at hearing, Mr. Crill maintained that he had no knowledge that the gummies contained the active ingredient for marijuana, and as a result, he unintentionally ingested the THC. However, he acknowledged that he regularly consumed the Tropic Twist product. Mr. Crill testified that he does not use marijuana or any other illegal drugs. Mr. Crill has no prior history of testing positive for marijuana on a drug screen. He submitted to a pre-employment drug screen when he began working with the School Board, which returned negative. He also submitted to a drug screen prior to being hired at Legacy Elementary School. The School Board maintains a drug-free workplace policy. Petitioner alleges Respondent violated policy 6.33, entitled “Alcohol and Drug-Free Workplace.” Pursuant to policy 6.33, section II.A., which constitutes notice to all employees of School Board, “as a condition of their continued employment” with the School Board, all employees are required to fully comply with the provisions of the Drug-free Workplace Policy. Policy 6.33, section II.B., provides that “it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Policy 6.33, section IV.B., provides that “[e]mployees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs; nor will they be under the influence of such drugs.” Policy 6.33, section IV.B., includes marijuana within a list of substances which are considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R. §§ 1300.11 through 1300.15. Policy 6.33, section VI.B.2., provides: Circumstances under which testing may be considered include but are not limited to the following: * * * 2. Accidents on the job causing personal injury to self or others. The School Board is also a party to a collective bargaining agreement, that governs, in part, terms and conditions of employment for Mr. Crill. According to Dr. Gullett, the recommended disciplinary action is termination when employees violate the School Board’s Drug-Free Workplace Policy. Dr. Gullett issued an Administrative Complaint recommending Mr. Crill’s termination due to his testing positive for marijuana on the urine drug screen. Mr. Crill timely requested a hearing to challenge the proposed termination and the School Board referred the matter to DOAH for an ALJ to issue a recommended order based on those disputed facts. Mr. Crill did not exhibit any signs of being under the influence of marijuana, nor did his principal, Shameka Murphy, observe any indication that Mr. Crill was under the influence. Ms. Murphy did not observe any basis to order Mr. Crill to take a reasonable suspicion drug screen, which would be required if she believed that he was under the influence of drugs or alcohol. The parties also stipulated that Mr. Hensel and Ms. Guest, who were principals at some point during Mr. Crill’s tenure working with the School Board, never had a basis to suspect that Mr. Crill was under the influence of drugs or had reason to direct him to submit to a reasonable suspicion drug screen. Ultimate Findings of Fact The greater weight of the evidence demonstrates that Mr. Crill tested positive for marijuana on a urine drug screen following an incident that occurred while working. Petitioner proved by a preponderance of the evidence that Mr. Crill violated School Board policy, namely: The Alcohol and Drug-Free Workplace Policy 6.33, Section II.B., by having the presence of drugs in his body while working as demonstrated by the positive urine drug screen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order finding that Respondent, Joshua Crill, engaged in misconduct in office and there is just cause to terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056(2). DONE AND ENTERED this 24th day of May, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2021. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast Third Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, the School Board of Sarasota County (the Board),1 proved Respondent, Betty Register (Ms. Register), committed misconduct in 1 The Board’s official name is The School Board of Sarasota County. § 1001.40, Fla. Stat. (2020). The case style has been amended accordingly. her employment as alleged in the Administrative Complaint (AC) dated November 17, 2020,2 and if so, the appropriate discipline.
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, the following Findings of Fact are made: The Parties The Board is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non-instructional “educational support” employees within Sarasota County, Florida. The Board employs approximately 300 school bus drivers each school year, each is considered an educational support employee. On or about September 22, 2020, Ms. Register was employed by the Board as a school bus driver. As a school bus driver Ms. Register was required to and did possess a Florida issued Commercial Driver’s License (CDL). Other Entities The Florida Department of Transportation (DOT) requires that anyone who holds a CDL to drive a commercial vehicle is subject to quarterly random drug and/or alcohol testing. Currently, DOT requires that fifty percent of the CDL holders be tested quarterly randomly. FSSolutions (FSS) is a third-party administrator that handles drug, alcohol, and other testing services for multiple clients. FSS has a contract with the state of Florida to provide these services, and individual entities may purchase the FSS services using the statewide contract. FSS also provides each entity with a list of companies that are approved collection agents. When an entity contracts with FSS to facilitate the testing, that entity will send a list of all its eligible employees to FSS. FSS will then generate a random list of the employees to be tested. The randomly selected employees are notified of the date, time, and location for a sample to be provided. The selected employees report to the collection site and provide a sample for testing. That sample is sent to a certified laboratory for analysis, and a test report is created for each sample tested. Each test report is reviewed by a trained medical doctor, who has been qualified to be a DOT medical review officer (MRO). The MRO will speak to “any donor whose laboratory result is not negative.” A non-negative test result could mean that the sample was positive, adulterated, or substituted. The test reports are then provided to the entity that ordered the test. The Board’s Process The Board requires quarterly random drug tests of its CDL holders, specifically its school bus drivers. Beginning in 2020, the percentage of the Board’s school bus drivers to be randomly drug tested rose from approximately 20 percent to 50 percent. The Board has a contract with FSS to administer the DOT required quarterly random drug and/or alcohol testing. FSS provided the Board a list of approved collection companies. The Board selected an approved collection company. Once the samples are collected, they are sent to a certified laboratory for testing. Each quarter, Ms. Peterson, the risk management supervisor, sends Ms. Clarke, the transportation and operations supervisor, an initial list of the Board’s school bus drivers. Ms. Clarke reviews that list and removes the names of school bus drivers who are no longer employed by the Board. Then Ms. Clarke adds the names of all newly hired school bus drivers to the list. That list is then sent to FSS. FSS then provides the Board with the randomly selected names of the school bus drivers to be tested. Once the randomly selected school bus drivers are identified, the Board’s transportation department sends out the notice to those employees to be tested. The notice contains the date, time, and location for each employee to report for testing. September 22, 2020, through October 6, 2020 The alleged conduct giving rise to this proceeding occurred on or about September 22, 2020. The Board’s quarterly testing period was July 1, 2020, through September 30, 2020. Ms. Peterson followed the routine set forth in paragraph 11 above. Ms. Register’s name was included in the initial list of school bus drivers sent to Ms. Clarke for her review. Following her review and necessary edits, Ms. Clarke returned the revised list, which included Ms. Register’s name, to Ms. Peterson. Ms. Peterson sent the revised list to FSS. FSS programed its random generator to select the requisite percentage of names required by DOT and the Board. FSS then provided the Board with the randomly generated list of employees to be tested. Ms. Register’s name was on that randomly generated list of employees to submit for the quarterly drug testing. Ms. Register was notified of her selection for the testing to be provided on September 22, 2020, at 10:30 a.m. Ms. Register reported to the collection location and provided a sample. Ms. Register’s sample was sent to the LabCorp location in Research Triangle Park, North Carolina, for testing. On October 6, 2020, the test reports were made available to Ms. Peterson, and she became aware that Ms. Register’s sample was positive for marijuana and opioids, specifically: “marijuana, hydrocodone, and hydromorphone.” Ms. Peterson called Ms. Clarke and notified her of Ms. Register’s positive test results. Ms. Clarke “automatically pulled [Ms. Register] from the route.” Further, Ms. Clarke testified Ms. Register never drove another school bus after that notification. District Policies Ms. Peterson testified that the Board is an alcohol and drug-free workplace. Ms. Peterson further testified that the Board’s policies provide that when there is a positive drug test, the employee is subject to an immediate termination of their employment. Ms. Peterson testified that Ms. Register’s employment was terminated based on her positive drug test, which constituted misconduct in office. Ms. Register is no longer employed by the Board. Ms. Register did not appear or testify during the hearing to offer any evidence to the contrary. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Ms. Register’s employment as a school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County affirm its termination of Ms. Register’s employment as a school bus driver. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of January, 2021. COPIES FURNISHED: Betty Register 4715 Greenwich Road Sarasota, Florida 34233 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan Asplen, III, Superintendent Sarasota School Board 1960 Landings Boulevard Sarasota, Florida 34321 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether just cause exists to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at Melaleuca Elementary School in Palm Beach County, Florida. Respondent was initially hired by the School Board as a teacher in 2006. At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the Collective Bargaining Agreement between the School Board and the Palm Beach County Classroom Teachers Association. The Florida Standards Assessment ("FSA") is a standardized, statewide, individual assessment examination administered to students in Florida's public schools. The FSA for third-grade students includes the Mathematics and English Language Arts ("ELA") Reading assessments. Student performance on the FSA is a measure of student accountability. A student's test score on the FSA must accurately reflect the student's actual performance on the test. If a student receives assistance, the student's performance will not be accurately measured. Student performance on the FSA is a factor in the determination of a school's grade, a teacher's evaluation, and potentially, a teacher's compensation and bonus. To maintain the integrity of the FSA and to ensure the proper administration of the FSA, teachers receive mandatory training in the correct administration of the test. On or about March 16, 2016, Respondent attended the FSA Test Administrator Training at Melaleuca Elementary School, which included instruction about test security. On or about March 16, 2016, Respondent received a copy of a PowerPoint entitled "Spring 2016 Florida Standards Assessments Training Materials – Computer Based Grades 4-5 ELA Reading; Grade 5 Mathematics – Paper-Based Grade 3 ELA Reading and Grades 3 & 4 Mathematics." On or about March 16, 2016, Respondent signed the "Test Administration and Security Agreement" and the "Test Administrator Prohibited Activities Agreement," which prohibit assisting students in answering tests, giving students verbal and non-verbal cues, and changing or interfering with student responses. By signing these agreements, Respondent agreed to follow all test administration and security procedures outlined in the manual and rules, and she agreed not to engage in any prohibited activities or acts that would violate the security of the test or cause student achievement to be inaccurately measured. At the hearing, Respondent acknowledged she understood the contents of these agreements and the prohibited testing activities. On March 31, 2016, Respondent was a third-grade teacher at Melaleuca Elementary School and administered/proctored the FSA Mathematics assessment to third-grade students. During the test, Respondent gave assistance to students and interfered with students' answers. Specifically, Respondent: (1) made noises and tapped on students' desks and their test answer sheets to signal wrong answers; (2) pointed to wrong answers on the test answer sheets; whispered to a student that "she was doing a good job"; and erased marks and unwanted answers on students' answer sheets. Many students who were in the classroom when Respondent administered the FSA Mathematics assessment on March 31, 2016, credibly and persuasively testified at the final hearing regarding the assistance Respondent gave to them during the examination, and Respondent's interference with their answers during the examination. N.D. testified that during the test, Respondent made noises to signal a wrong answer. N.D. also testified that Respondent pointed to a question on her answer sheet in an effort to have N.D. change her answer. N.D. also testified that Respondent erased bubbles on her answer sheet. A.C. testified that during the test, Respondent made noises to signal a wrong answer. A.C. also testified that Respondent erased bubbles on her answer sheet. A.V. testified that during the test, Respondent made noises to signal a wrong answer. A.V. also testified that Respondent whispered to her that "she was doing a good job." A.V. also testified that Respondent pointed to answers and erased bubbles on her answer sheet. H.C. testified that during the test, Respondent made noises to signal a wrong answer. D.A. testified that during the test, Respondent tapped on his desk to signal a wrong answer. Y.C. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. testified that during the test, Respondent made noises to signal a wrong answer. A.R.E. also testified that Respondent erased bubbles on his answer sheet. A.H. testified that during the test, Respondent made noises. A.H. also testified that Respondent erased a mark on his answer sheet. Moreover, at the hearing, Respondent conceded that she erased bubbles on students' answer sheets and prompted a student when asked by the student about the definition of a polygram. Respondent's attempt to explain how she did not assist students and interfere with their answers during the FSA examination is unpersuasive and not credited. Respondent's assistance to students and interference with students' answers during the FSA Mathematics assessment resulted in the Florida Department of Education ("DOE") invalidating each of the students' math tests in Respondent's classroom. The invalidation of the students' math tests resulted in a deficit for the placement of students in the appropriate math instruction for the following school year. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2). By assisting students and interfering with students' answers during the FSA examination, Respondent violated Florida Administrative Code Rules 6A-10.042(1)(c), (d), and (f). Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students' learning environment and reduced Respondent's ability to effectively perform duties. Respondent also violated rules 6A-10.081(2)(a)1., (2)(b)2., and (2)(c)1., by failing to make reasonable effort to protect students from conditions harmful to learning, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, and failing to maintain honesty in all dealings. By assisting students and interfering with students' answers during the FSA examination, Respondent also violated School Board Policy 1.013 by failing to carry out her assigned duties in accordance with state rules and School Board policy. Respondent's conduct in assisting students and interfering with students' answers during the FSA examination was clearly flagrant and purposeful. Respondent was trained not to assist students and interfere with students' answers during the FSA examination. Respondent was aware of the prohibition against assisting students and interfering with students' answers during the FSA examination. Rather than adhere to these prohibitions, however, Respondent made a conscious decision to ignore them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and termination of Respondent's employment.1/ DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 1st day of September, 2017.
The Issue The issue in this case is whether a district school board is entitled to terminate for just cause the employment of a non- instructional employee who has been accused of misconduct in office, gross insubordination, and conduct unbecoming a school board employee.
Findings Of Fact The evidence presented at final hearing established the facts that follow. From December 1989 until the Board suspended her without pay effective October 11, 2000, Wallace worked in the Miami-Dade Public School System as a non-instructional employee. She held various clerical and secretarial positions in several different offices during that period. At the time of her suspension, Wallace was a Senior Secretary in the Office of Applied Technology, Adult, and Career Education. Wallace is a member of the United Teachers of Dade ("Union"). She is covered by the collective bargaining agreement between the Union and the Miami-Dade County Public Schools that took effect on July 1, 1999, and operates until June 30, 2002. Article XXI, Section 3, of the collective bargaining agreement sets forth the "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel" and contains the following provision: D. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. Pet. Exh. 1A. Although capable, Wallace has been a marginal employee whose service in the school system has been marked by documented deficiencies and supervisors' complaints. One former boss succinctly described her as being able "to do an excellent job[,] but . . . defiant, . . . disrespectful, . . . irresponsible, . . . [and] unreliable." Transcript of Final Hearing ("T-") 253. In fairness, this person's experience with Wallace ended in December 1995, yet others for whom Wallace worked more recently echoed her sentiments. Indeed, the Board presented extensive evidence of Wallace's negative employment history, establishing persuasively that over the years she had committed numerous infractions such as arriving late to work, taking long lunches, disobeying instructions, failing timely to complete assignments, and spending excessive time on personal telephone conversations. However, these incidents — many of which happened years ago and long before the Board decided to dismiss Wallace — are too remote, as a factual matter, to bear on the charges against her. Further, Wallace received her last annual evaluation at the end of the 1998-99 school year.1 Her evaluator was Mr. Dale Keith, the person to whom Wallace then directly reported. Signed by Mr. Keith on July 14, 1999, the evaluation contained his ratings of Wallace, as either satisfactory or unsatisfactory, in seven performance categories: A. Knowledge; B. Quality of Work; C. Efficiency; D. Interpersonal Skills; E. Dependability and Judgment; F. Attendance and Punctuality; and G. Adherence to Rules and Procedures. Mr. Keith rated Wallace satisfactory in every category and assigned her an Overall Performance Rating of satisfactory. He did not prescribe any "[r]equired actions toward remediation of deficiency" but made several "suggestions" for improvement in the upcoming 1999-2000 school year.2 Thus, as this evaluation demonstrates, despite past problems, by July 1999 Wallace had remedied her deficiencies to a degree that her job was not in immediate jeopardy. After July 1999, however, Wallace wound up in work-related trouble on three specific occasions, the circumstances of which are pertinent to the present charges. The Jury Duty Incident (August-September 1999) After receiving a summons requiring her to be available for jury duty in federal court during a two-week period beginning on Monday, August 30, 1999, Wallace notified Mr. Keith, in accordance with office procedures, that she might be absent from work as a result. Wallace did not report to work on August 30, 1999, or any following day that week. She also failed to keep Mr. Keith apprised of her whereabouts. On Friday, September 3, having heard nothing from Wallace, Mr. Keith contacted the court clerk's office, which sent him, by facsimile transmission, a Certificate of Juror's Attendance attesting to the fact that Wallace had attended court proceedings in person on August 30, 1999 — but not thereafter. On Tuesday, September 7, 1999 (Monday of that week was Labor Day), Mr. Keith called Wallace to find out what was going on. The upshot of this discussion was that Mr. Keith discovered Wallace had not been needed in court from Tuesday through Friday of the preceding week, but apparently she was serving on a jury during this second week of her eligibility. Mr. Keith told her to call in daily, and she did so after that. Upon Wallace's return to work, she was disciplined for having taken unauthorized leave on the days when she was neither in court nor in the office. As punishment, the Board docked Wallace's pay by four days' wages, and the matter was closed. The First Typing Test Incident (September 1999) Shortly before 9:00 a.m. on September 16, 1999, Wallace entered the Division of Non-Instructional Staffing's testing lab. Once inside, she recorded her name, arrival time, and purpose — to take a typing skills test — in a Receptionist Log located in the lobby. The typing skills test that Wallace desired to take is used to screen potential applicants for clerical and secretarial jobs. A tool that measures typing speed, the test is administered to persons not presently employed in the Miami-Dade Public Schools who are interested in applying for clerical positions in the system, as well as to existing employees who, by improving their previous scores, may become eligible to apply for higher-level jobs. A person who is not already employed in the school system must achieve a score that meets the minimum requirement for some position to become eligible to submit an application. A prospective applicant will not be provided an application until after he or she has passed the typing skills test by earning a minimally qualifying score. There are additional examinations that must be taken later in the application process, but none is at issue here. Because it is beneficial to earn a score that will qualify for as many positions as possible, existing employees routinely re-take the typing skills test in hopes of expanding their opportunities for advancement. The fastest typing speed required for any clerical or secretarial job, however, is 60 words per minute ("wpm"). Therefore, once an individual attains a score of 60 wpm or better, that person can achieve no additional competitive advantage with a higher score and need not be tested again. Wallace had attained a score of 60 wpm in 1994. Although Wallace appears to have had no practical reason to re-take the typing skills test in September 1999, she was not at the time under direct orders forbidding her from doing so, and there were no specific written rules or policies proscribing her action.3 An employee named Mariana Pena was responsible for administering the typing skills test. That September morning when Wallace appeared, Ms. Pena called the names of the persons who had signed the Receptionist Log, collected their picture identification cards for verification, brought them to the testing area, and gave instructions to sit down at one of the computer terminals and sign in by name and Social Security number. Wallace went into the testing area accompanied by another woman with whom she appeared to be friendly. Consistent with their apparent familiarity, the two sat next to each other. Ms. Pena did not happen to see the computer screen showing the name and Social Security number that Wallace entered when she signed in. Persons taking the typing skills test are provided a piece of paper and instructed to type the text contained on it. The computer determines each person's proficiency and prints the results, assigning a score to each individual, all of whom are identified on the score sheet by name and Social Security number. Each person is given two chances to perform, and his or her lower score is discarded. Ordinarily, the persons being tested proceed with their respective second attempts as the results print out from their first ones. On September 16, 1999, the results from the first round of testing were anomalous in that Wallace's putative friend had managed to post two scores while Wallace herself had generated no score. One possible explanation for this unusual outcome was that Wallace had taken the test under her friend's name, by prior arrangement, while the latter had failed to perform her part in the plot by pretending to be Wallace. There was no direct proof, however, that the two had conspired to cheat in this manner. Suspecting that a scheme was afoot, Ms. Pena kept a watchful eye on the pair during the second round of testing. This time, the results were normal, with a score assigned to each test taker. At the conclusion of the testing process, Ms. Pena asked Wallace and her apparent friend to remain behind. Ms. Pena and her immediate supervisor, Arlene Diaz, questioned the two and ascertained that both were school system employees. In due course, the details of the incident were provided to Mr. Henry Horstmann, an Executive Director in the Division of Non-Instructional Staffing. Upon learning what had transpired, Mr. Horstmann contacted Wallace by telephone and explicitly directed her to stay away from the testing lab. In addition, Mr. Horstmann ordered Wallace not to take the typing skills test again without obtaining his permission in advance. Separately, he instructed Ms. Pena and Ms. Diaz that Wallace was not to be given the typing test, and that they must notify him immediately if she attempted to take it in the future. Mr. Horstmann's directives to Wallace were unambiguous and, in view of the circumstances, entirely reasonable in nature.4 He unquestionably had the authority to issue them. The Second Typing Test Incident (February 2000) On February 23, 2000, Wallace returned to the testing lab for the purpose of taking the typing skills test. This time, she signed the Receptionist Log as "Tranee Wallace." Tranee Wallace is the name of Wallace's daughter. After Ms. Pena called the roll, Wallace presented an identification card that bore Tranee's name and picture. When Ms. Pena saw the photograph, she could tell that the identification was not Wallace's. Also, seeing the name "Wallace" on the card jogged her memory of the September 1999 incident, causing her to recognize Wallace. As instructed, Ms. Pena immediately notified Mr. Horstmann that Wallace was in the testing lab. Mr. Horstmann walked to the testing lab and removed Wallace, escorting her back to his office. There, Mr. Horstmann examined the identification that Wallace had presented to Ms. Pena and observed that it belonged to Wallace's daughter Tranee. Mr. Horstmann explained to Wallace that he was going to refer the matter to the Office of Professional Standards for investigation. He again directed Wallace not to return to the testing lab. Mr. Horstmann also notified Dr. John Goonen, the Administrative Director, Adult Education Work Force Development, in whose department Wallace was working, about the situation. Having heard from Mr. Horstmann, the District Director of the Office of Professional Standards approved an investigation into the February 2000 incident at the typing lab. The case was assigned to Detective Niurka Echezebal of the Miami-Dade County School Police Department. On March 20, 2000, the detective interviewed Wallace in the presence of a Union representative. During the interview Wallace stated that she had disobeyed Mr. Horstmann's earlier directive to stay away from the testing lab because she was upset at having been forbidden to take the typing skills test again. Wallace admitted that she had attempted to take the test using her daughter's name and identification. Wallace denied that she was trying to help Tranee become eligible for employment in the school system. She claimed that she merely had wanted to practice her typing speed. The investigation, which concluded on March 29, 2000, resulted in a determination that Wallace had committed the offense of fraud. As a result, she was directed to appear at a conference-for-the-record in the Office of Professional Standards, which took place as scheduled on May 9, 2000. At that meeting, Wallace again denied having attempted to take the typing skills test for her daughter. As before, Wallace maintained that she had desired only to discover how well she would fare on the test. About five months later, on October 11, 2000, the Board made the decision that gave rise to these proceedings, suspending Wallace without pay, with the intent to terminate her employment. Ultimate Factual Determinations Wallace did not commit the offense of gross insubordination or willful neglect of duties, as defined in Rule 6B-4.009(4), Florida Administrative Code — not, at least, after July 1999. Her failure during the week of August 30, 1999, to report for work under the pretense of jury service was not in defiance of a direct order, and in any event Wallace was punished appropriately for that misdeed. Similarly, Wallace’s first bit of trouble in the typing lab, which took place on September 16, 1999, did not stem from an intentional refusal to obey a direct order; too, she was properly disciplined for her involvement in that event. In contrast, when Wallace attempted to take the typing skills test on February 23, 2000, she intentionally violated a direct and reasonable order, given by Mr. Horstmann with proper authority, that she not return to the testing lab for the purpose of taking the typing skills test without securing his permission in advance. This single, flagrant act of insubordination, however, does not amount to "constant or continuing" disobedience, which the rule requires be shown to justify termination of employment. Wallace’s participation in the first typing test incident did not constitute misconduct in office. Although the Board has argued here that Wallace was engaged in a fraud that September day, the evidence regarding her intent was inconclusive — as Wallace’s superiors concluded at the time of the event. Whether Wallace was an innocent victim of someone else’s mistake or wrongdoing, made a mistake of her own, played a prank, or had something more malign in mind is hard to say. Mr. Horstmann’s pragmatic punishment — ordering Wallace not to return to the testing lab — was a sensible resolution of the affair. Wallace is guilty of the offense of misconduct in office as a consequence of the second typing test incident. Her attempt to take the typing skills test while knowingly posing as her daughter was made with an intent to deceive the Board and hence was tantamount to fraud. Wallace's explanation that she wanted to take the test for her own benefit rather than her daughter's is not credible. The trier refuses to believe that Wallace would have taken so large a risk (loss of job) for so little gain (secret satisfaction at performing well on an in- house typing skills test?) when a more likely motive is readily apparent. The circumstances and common sense suggest that Wallace — whose typing abilities qualified her for any clerical or secretarial position in the school system — intended to take the test for her daughter so that Tranee could apply for some job, at least, and the widest variety of jobs at best. Accordingly, when Wallace wrote her daughter's name in the Receptionist Log, she knowingly misrepresented, on a document in connection with professional activities, a material fact — her identity — with the intent that Ms. Pena (or whoever was about to administer the test) would rely on the false statement and allow her to take the test as Tranee. Continuing with the deception, Wallace failed to maintain honesty in her professional dealings when she handed Tranee's identification card to Ms. Pena knowing that the card misrepresented Wallace's true identity and with the intent that Ms. Pena would believe Wallace to be Tranee. Wallace's deceitful conduct on the occasion of the second typing test incident violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), as well as Rule 6B- 1.006(5)(a)(employee shall maintain honesty in all professional dealings).5 Wallace's deceitful conduct also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve highest degree of ethical conduct) and School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and affirmatively requires employees to conduct themselves so as to reflect credit on themselves and the school system. These latter two violations, it should be mentioned, are derivative of the first two described, inasmuch as an act of fraud or dishonesty necessarily misses the "highest degree of ethical conduct" mark and always fails to reflect credit on the perpetrator. There was little direct evidence that Wallace's deceitful conduct actually impaired her effectiveness in the school system — which is a necessary factual component of the offense of misconduct in office. Mr. Keith's testimony on the issue of ineffectiveness was largely hypothetical and somewhat ambivalent. T-283-84. Dr. Goonen's testimony on the point was conclusory, T-313-15, as was Ms. Virginia Bradford's, T-346. Dr. Goonen and Mr. Keith argued that Wallace could not be trusted to handle sensitive assignments, such as those involving information about other employees' rates of pay, but this contention seemed contrived and lacked force. Wallace's secretarial duties did not demand a heightened degree of trustworthiness, honesty, judgment, or discretion above and beyond that which any reasonable employer would expect of a rank-and-file employee.6 Moreover, and more important, there was no evidence that Wallace's responsibilities were restricted in any way as a result of the misconduct in question. Indeed, it is striking that, although Wallace continued to work in the school system for nearly seven months after the second typing test incident, the Board did not present proof of a single occurrence of actual ineffectiveness attributable to her deceitful conduct. Nevertheless, Wallace's misconduct — which entailed a premeditated, intentional deception of her employer for the purpose of subverting the integrity of the employment application process, to the potential detriment not only of the school system but also of prospective applicants besides Tranee — was of a kind that would not have failed, in the ordinary course of events, to impair her effectiveness in the school system. This finding is based on common sense and common knowledge, which teach that: (1) an employee who has been caught, red-handed, in the very act of advancing a plan to deceive his or her employer inevitably will be branded dishonest and disloyal — in a word, untrustworthy; and (2) an employee whose probity is rightly suspect cannot be as effective as one who is regarded favorably, or at least has given no cause for concern, on that score. Therefore, under the facts of this case, it is reasonable to infer, and the trier of fact does infer, that Wallace's deceitful conduct must have impaired her effectiveness in the school system, to some extent. In drawing the fair inference of resulting ineffectiveness, the trier has taken into account several additional factors that should be noted. First, the deceitful conduct at issue was not of a private immoral nature, e.g. some sort of consensual sexual activity between adults. Second, to execute her fraudulent scheme, Wallace needed to defy a direct order to stay away from the testing lab; the seriousness of Wallace’s deceitful conduct is magnified by the fact that it required a predicate act of willful defiance. Third, Wallace refused to acknowledge her wrongdoing, offering instead incredible excuses for it, and she never apologized or showed remorse. She did nothing, in short, to mitigate the damage to her reputation; if anything, she compounded the impairment that follows inexorably from fairly being thought dishonest. Finally, while there was no persuasive direct evidence of Wallace's resulting ineffectiveness, there was also no affirmative evidence that she continued to be effective despite having been caught, in flagrante delicto, defrauding her employer. In sum, taking into consideration all of the evidence in the case, there are no compelling countervailing factual grounds to discourage the drawing of an inference of ineffectiveness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Wallace’s suspension without pay effective October 12, 2000, and discharging her from further employment in the Miami- Dade Public Schools. DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of April, 2001.
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
