11-000943TTS Miami-Dade County School Board vs. Lisa Parker Status: Closed Recommended Order on Friday, February 15, 2013.

Summary: Thirty-day suspension recommended for a lead staffing specialist who failed to follow policies in determining a student's eligibility for ESE services and in drafting two IEPs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, Petitioner, )

)

vs. )

)

LISA PARKER, ) Case No. 11-0943TTS

)

Respondent. )

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by in Miami, Florida, on May 14-16 and June 12-14,

2012, before Administrative Law Judge Claude B. Arrington of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami-Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Maria del Carmen Calzon, Esquire

Suite 249

1825 Ponce de Leon Boulevard

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Lisa Parker (Respondent) committed the acts alleged

in the Miami-Dade County School Board's (School Board) Notice of

Specific Charges and, if so, the discipline that should be

imposed against Respondent's employment.

PRELIMINARY STATEMENT

Respondent is a lead staffing specialist with the Miami-

Dade County School Board's Exceptional Student Education (ESE)

program. At the times relevant to this proceeding, Respondent's

supervisor was a woman who will be referred to as Ms. S.-N. in

an effort to protect the privacy of Ms. S.-N.'s daughter, S.N.

The School Board seeks to terminate Respondent's employment.

At its regularly scheduled meeting on February 9, 2011, the

School Board took action to suspend Respondent's employment

without pay and institute this proceeding to terminate her

employment. Respondent timely challenged the School Board's

action, the matter was referred to DOAH, and this proceeding

followed. On March 25, 2011, the School Board filed with DOAH

its Notice of Specific Charges.

The Notice of Specific Charges alleged certain facts, and,

based on those facts, alleged in five separate counts that

Respondent was guilty of (I) misconduct in office, (II)

immorality, (III) violation of School Board Rule 6Gx13-4A-1.21

relating to Responsibilities and Duties of School Board

employees, (IV) violation of School Board Rule 6Gx13-4A-1.213

relating to the Code of Ethics, and (V) School Board Rule 6Gx13-

4A-1.212 relating to Conflict of Interests. The Notice of

Specific Charges relied on the provisions of sections

1001.32(2), 1022.22(1)(f), 1022.33(1)(a) and (6)(a), and

447.209, Florida Statutes (2010), and Florida Administrative

Code Rules 6B-1.001, 6B-1.006, and 6B-4.009.

The gravamen of the Notice of Specific Charges is that

Respondent improperly assisted Ms. S.-N. in creating and

expediting a purposely flawed Individual Education Plan (IEP)

and a Matrix of Services form for Ms. S.-N.'s benefit in

securing a McKay Scholarship for her daughter, S.N. 1 /

Paragraphs 8-13 of the Notice of Specific Charges contain

the following factual allegations:

8. The McKay Scholarship Program is

administered by the Florida Department of

Education's (hereafter "FDOE"), Office of

Independent Education and Parental Choice.

The Scholarship allows parents of students

with disabilities multiple options to choose

the best academic environment for their

child, including, inter alia, an opportunity

to receive tuition monies to attend a

participating private school.

9. As a staffing specialist Respondent is

charged with the duty of ensuring compliance

with Federal statutes, State statutes, and

School Board rules concerning exceptional

student education (hereinafter "ESE" or

"SPED").

10. Respondent also oversees and

participates in the creation of Individual

Education Plans (herein after "IEP's") for

students with disabilities. These IEP's are

used to determine eligibility for McKay

Scholarships.

11. On or about October 2008, Respondent's

supervisor and long time friend, [Ms. S.-

N.], enlisted Respondent to aid in the

expedited preparation of an IEP for her

daughter, S.N., for purposes of obtaining a

McKay Scholarship to pay for S.N.'s private

school tuition.

12. Respondent served as the Local

Educational Agency's (hereinafter "LEA")

representative for purposes of creating the

IEP.

13. The Respondent knew or should have

known that the IEP development process was

flawed and did not comply with the law or

established School Board policies and

procedures.

At the final hearing, the School Board presented the

testimony of Jesse Bernstein, Respondent Lisa Parker, Lawrence

Davidson, Dr. Yolando Sklar, Mark Finkelstein, Dr. Garnett

Reynolds, Will Gordillo, Dr. Richard Rosen, Dr. Sue Buslinger-

Clifford, Laura Harrison, Jesus Aviles, and Edna Waxman.

Ms. Waxman testified during the School Board's case in chief and

as a rebuttal witness. The parties stipulated to and the

undersigned took official recognition of the relevant statutes

and rules. Petitioner's pre-marked Exhibits 1, 6-8, 16-18, and

20-22 were admitted into evidence by stipulation. Petitioner's

pre-marked Exhibits 2, 9-14, 19, and 24 were also admitted into

evidence.

Respondent testified on her own behalf and presented the

additional testimony of Dr. Laurie Karpf, Udyss Romano, S.N.,

and Tanya Jackson. Respondent's pre-marked Exhibits 29, 73, 82,

86, 102, 103, 108, 130-132, and 154 were admitted into evidence.

A Transcript of the proceedings, consisting of eight

volumes, was filed on November 6, 2012. The deadline for the

filing of Proposed Recommended Orders was extended twice on

unopposed motions. Thereafter, each party timely filed a

Proposed Recommended Order, which has been duly considered by

the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2012), and all references to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Miami-Dade County, Florida.

2. Respondent has been employed by the School Board since

1986. During the time relevant to this proceeding, Respondent

was the lead staffing specialist for the School Board's ESE

program in Region I.

3. During the 2008-2009 school year, Michael J. Krop Sr.

High School (Krop) was a school for which Respondent had

responsibility.

4. The School Board's ESE program provides services to

students who are determined eligible for such services. The

eligibility determination is made by a staffing committee

consisting of a minimum of three School Board professional

employees.

5. The School Board has adopted the following procedure

pertaining to the eligibility staffing committee 2 / :

A staffing committee, utilizing the process

of reviewing student data including but not

limited to diagnostic, evaluation,

educational, or social data, determines a

student's eligibility. A minimum of three

(3) professional personnel, one (1) of whom

is the district administrator of exceptional

students or designee, meet as a staffing

committee. For students being considered

for eligibility as a student with a

disability, the parent is invited to

participate in this meeting . . . .

6. If a student is determined to be eligible for services

through the ESE program, an IEP team is assembled to conduct an

IEP meeting and to prepare an IEP for the student. The parents

of the student are entitled to attend the IEP meeting as part of

the IEP team. A local education agency (LEA) representative is

a required member of an IEP team. The other required members of

the IEP are a general education teacher, a special education

teacher, and an evaluation specialist. 3 / Relevant to this

proceeding, a general education teacher and an evaluation

specialist can be excused from the IEP meeting before the close

of the meeting.

7. The members of a staffing committee that determines

eligibility can also constitute the members of an IEP team. An

eligibility determination is frequently made with an IEP team

meeting ensuing immediately thereafter. There is nothing

unusual about an eligibility determination and an initial IEP

being accomplished on the same day.

8. "Specific learning disability" and "other health

impaired" are two categories that qualify a student for ESE

services. 4 /

9. School-based staffing specialists are assigned to

schools to hold staffing meetings to determine eligible for

services from the ESE program, and to write an IEP for a student

found to be eligible. Generally, a lead staffing specialist is

a position of support for school-based staffing specialists in

the areas of organization, scheduling, and compliance with

relevant substantive and procedural requirements of the

Individuals with Disabilities Education Act, Florida Statutes,

and rules. A lead staffing specialist also provides

professional development to school-based personnel through in-

service training and individual support to schools. A lead

staffing specialist is responsible for ensuring that eligibility

determinations were based on adequate documentation in a timely

fashion.

10. On June 27, 2008, the School Board published a

"Memorandum" that solicited applicants for the position of "lead

staffing specialist." That Memorandum contained the following

under the heading "Job Responsibilities Include":

Serve as the Local Education Agency (LEA)

Representative of the Multi-Disciplinary

Team for eligibility, placement and

dismissal decisions for students in the

least restrictive environment.

Collect and review staffing data and

allocation of personnel to facilitate

adherence to required procedures and

timelines for staffings.

Assist the SPED Instructional Supervisor in

monitoring unit allocations, program

enrollment and suspension and inclusion

percentages.

Demonstrate knowledge in procedural

safeguards, due process and mediation

procedures.

Consult with the Regional Center SPED

Instructional Supervisors to resolve issues

related to the provision of programs and

services to individual students.

Provide on-site technical assistance to

teachers, administrators and support

personnel in areas involving program

planning, curriculum and instructional

techniques for students.

Provide program assistance to parents and

community agencies. Identify school needs

regarding enrollment, unit allocation,

equipment, materials and transportation.

Plan and conduct regularly scheduled staff

meetings to maintain communication and

provide for the dissemination of

information.

Serve as the Region Center SPED

Instructional Supervisor's designee in the

identification and resolution of problems,

issues and concerns related to special

education services.

11. When necessary, a lead staffing specialist is also

expected to serve as the LEA representative at a school-based

staffing to determine a student's eligibility for services from

the ESE program and to participate in the preparation of an IEP

as a member of the IEP team.

12. A lead staffing specialist who serves as the LEA at an

initial eligibility meeting or an IEP meeting is charged with

ensuring that the School Board's policies are followed and that

all necessary documentation is obtained. It is the School

Board's responsibility to ensure that its policies comply with

all applicable Federal and Florida statutes and rules.

13. The LEA at an IEP meeting has the responsibility of

preparing a Matrix of Services form based on the services

provided by the IEP. The completion of the form results in the

generation of a number that is used to determine the level of

funding the School Board receives for the student. For ease of

reference, that number will be referred to as the matrix number.

A higher matrix number generates more funding than a lower

number. A matrix number is also used to determine the level of

funding for a McKay Scholarship. Again, a higher matrix number

will result in greater funding.

14. Respondent has been adequately trained in the

procedures for determining eligibility for ESE program services,

for the completion of IEPs, and for the completion of Matrix of

Service forms.

15. At the times relevant to this proceeding, Ms. S.-N.

served as the School Board's Instructional Supervisor of ESE and

was Respondent's direct supervisor. In addition to their

professional relationship, Ms. S.-N. and Respondent had been

close personal friends for over 25 years at the time of the

formal hearing. S.N. is the daughter of Ms. S.-N..

16. At the request of Ms. S.-N., Respondent served as the

LEA for the eligibility staffing and subsequent creation of an

IEP for S.N. at Krop on October 15, 2008. Also at Ms. S.-N.'s

request, Respondent served as the LEA on an IEP team that

prepared a second IEP for S.N. on February 9, 2009.

17. Prior to the eligibility determination on October 15,

2008, S.N. was a student at American Heritage Academy, a private

school in Plantation, Broward County, Florida.

18. Prior to the eligibility determination, Dr. Laurie

Karpf, a psychiatrist, had diagnosed S.N. with attention deficit

hyperactivity disorder (ADHD) and mood disorder, NOS (not

otherwise specified). Dr. Karpf prescribed for S.N. medication

to treat ADHD. 5 /

19. Prior to the eligibility determination, Dr. Garnett

Reynolds, a speech and language pathologist employed by the

School Board, screened S.N. to determine whether S.N. had speech

or hearing deficits. Dr. Reynolds determined that S.N. had no

such deficits. Dr. Reynolds did not participate further in the

eligibility determination or in drafting either IEP at issue.

20. On August 22, 2008, Dr. Yolanda Sklar, a school

psychologist employed by the School Board, evaluated S.N. at the

request of Ms. S.-N. Because S.N. was enrolled in a private

school in Broward County, Dr. Sklar conducted the evaluation in

her capacity as a "clinical psychologist," using the DSM-IV

model, as opposed to the capacity as a school psychologist using

School Board protocols.

21. Dr. Sklar's report stated the following as the "Reason

for Referral":

[S.N.] is a 15 year, nine month old female

who was referred for a psychological

evaluation for reasons of academic

difficulties in school. [S.] is enrolled in

tenth grade at American Heritage School.

Information was requested regarding [S.'s]

level of intellectual functioning, academic

achievement, and her learning aptitude in

order to address the possibility of learning

disabilities. [S.] presents with a history

of attentional difficulties and academic

problems in school. She has struggled

throughout her schooling years, but her

difficulties in school have become more

evident at the higher grades, with higher

academic demands and expectations. [S.]

also has Attention Deficit Disorder. She is

currently on medication (Focalin) for

treatment of attentional difficulties and

she appears to be responding well to the

medication. The purpose of this evaluation

is to provide diagnostic clarification and

assist with determination of [S.'s]

educational needs. Recommendations are

provided based on [S.'s] learning abilities

and her instructional needs in order to

insure her academic potential and her

success in school.

22. Ms. S.-N. had, at times, been Dr. Sklar's direct

supervisor. Dr. Sklar felt intimated when Ms. S.-N. requested

that she evaluate S.N. Nevertheless, Dr. Sklar's report and her

testimony at the formal hearing established that she evaluated

S.N. in a thorough and professional manner.

23. Dr. Sklar administered to S.N. the following tests:

Wechsler Intelligence Scale for

Children-IV

Woodcock-Johnson-III Tests of Achievement

Woodcock-Johnson-III Tests of Cognitive Ability

Beery Developmental Test of Visual- Motor Integration-V

Behavior Assessment System for

Children, Parent Rating

Behavior Assessment System for

Children, Self-Report

Sentence Completion Test-Adolescent

Clinical Interview and Observations

24. Dr. Sklar's report contained the following "Summary

and Conclusions":

[S.N.] is a 15 year, nine month old female

who is functioning within the Average range

of intellectual classification. Assessment

of learning aptitude indicates a learning

disorder or learning disability in

processing speed. Academically, [S.] is not

performing to the best of her ability and

not reaching her potential due to learning

disabilities. She is achieving

significantly below her level of expectancy

in reading fluency. Psychometric findings

strongly support evidence of a specific

learning disability in processing speed. A

childhood history of Attention Deficit

Disorder is also supported. The overall

implications are that [S.] will require

accommodations in the classroom and in

testing situations to fully utilize her

intellectual potential. The failure to

accommodate may lead to academic performance

well below her expected ability. Based on

findings, it is imperative that [S.] receive

individualized instructional adjustments in

the classroom and test accommodations in

order to meet her educational goals.

Results and clinical impressions are

consistent with a diagnosis of Attention

Deficit Disorder/Hyperactivity Disorder,

Predominately Inattentive Type, and Learning

Disorder NOS (Not Otherwise Specified).

25. Dr. Sklar's report contained the following under the

heading "Diagnostic Impressions":

The following diagnostic criteria is met in

accordance with the Diagnostic and

Statistical Manual of Mental Disorders-IV

(DSM-IV-TR), American Psychiatric

Association:

Axis I: 314.00 Attention

Deficit/Hyperactivity Disorder,

Predominately Inattentive Type

Axis II: 315.9 Learning Disorder, NOS

26. Dr. Sklar's report contained the following under the

heading "Educational Strategies and Recommendations":

[S.] would benefit from educational software

programs that are multi-modal and emphasize

visual skills, as her visual memory

processing skills appear to be her strongest

learning modality. Software programs, such

as Talking Books would be beneficial.

As [S.] has a history of Attention Deficit

Disorder, it is imperative that directions

be specific and given clearly. It may be

necessary to repeat directions in order to

assure attending skills and comprehension of

instructions regarding the task at hand.

In light of deficits in processing speed, it

is imperative that [S.] receive time

accommodations in classroom assignments,

exams, and standardized tests. Restrict the

amount of work required on a single page if

possible. Teaching techniques should begin

with identification of individual parts,

moving to integrated wholes. Keep visually

presented material simple in format and

uncluttered by excessive stimuli.

Classroom lectures may be taped in order of

[S.] to play back lectures and take notes at

her own pace. Strategies that may

facilitate written tasks include providing

outlines and visual cues such as color

coding, numbering lines, etc.

Educational materials and tools, such as a

computer/word processor, calculator, tape

recorder, spell-checker, ruler, etc., should

be allowed as deemed necessary.

27. Dr. Sklar's report does not reflect an opinion as to

whether S.N. met the eligibility criteria for ESE services in

Miami-Dade public schools. At the formal hearing Dr. Sklar

testified that S.N. did not meet criteria for eligibility under

the SLD category. The School Board uses a discrepancy model,

which measures the statistical difference from IQ and level of

academic functioning. The difference in S.N.'s evaluation was

one-half point short of the differential required by the School

Board, which determined that she was not eligible, but suggested

that further testing was warranted.

28. Prior to October 15, 2008, Ms. S.-N. instructed

Respondent to determine S.N.'s eligibility for ESE services and

to prepare an IEP for her daughter as soon as possible.

Respondent could not remember the date that conversation took

place, but it is clear that Respondent worked on very short

notice.

29. The School Board contends that Respondent acted to the

detriment of other students who were waiting to be evaluated for

eligibility of ESE services or for an IEP by giving S.N.

priority over those other students. The School Board's

contention is rejected because there was insufficient evidence

to establish that any student's staffing was delayed by

Respondent's actions.

30. Ms. S.-N. enrolled S.N. as a student at Krop on

October 15, 2008. The enrollment record reflected that S.N.

resided at an address in Miami-Dade County, Florida, within the

Krop school zone. That was a false address. Although

Respondent utilized that false address on the October 15, 2008,

IEP, Respondent testified, credibly, that she pulled the address

from the school computer. Respondent had no duty to verify the

accuracy of that address. There was no evidence that Respondent

knew or should have known that the address was false.

31. In response to Ms. S.-N.'s instruction, Respondent

attempted to convene an eligibility team meeting and an IEP

meeting at Krop on October 15, 2008. The meeting was held in

the office of Elissa Rubinowitz, the Program Specialist (for

ESE) at Krop.

32. On October 15, 2008, Respondent generated an IEP for

S.N. that reflected that S.N. had been determined eligible for

the following ESE programs: "Specific Learning Disabilities"

and "Other Health Impaired." Under the heading "Signatures and

Positions of Persons Attending Conference [sic]", the following

signatures appear with the positions of each signer in

parenthesis: Ms. S.-N. (parent), S.N. (student), Respondent

(LEA representative), Ms. Rubinowitz (ESE teacher), Dr. Richard

Rosen (evaluation specialist), and Lawrence Davidson (general

education teacher).

33. Mr. Davidson was not at the staffing committee team

meeting that determined S.N.'s eligibility for services, nor did

he attend the IEP meeting at Krop on October 15, 2008.

Mr. Davidson's office at Krop was next door to Ms. Rubinowitz's

office. After Respondent completed the IEP without

Mr. Davidson's presence or input, Ms. Rubinowitz went to

Mr. Davidson's office, gave him the IEP, and asked him to sign

the IEP as the general education teacher. Mr. Davidson signed

the IEP as the general education teacher. 6 /

34. The IEP reflects that S.N. was to be placed in all

general education classes at Krop. Consequently, a general

education teacher should have been a participating member of the

IEP team. Because there was no general education teacher, the

IEP team was inappropriately composed.

35. Similarly, Dr. Rosen was not at Krop on October 15,

2008. On the afternoon of October 15, 2008, Dr. Rosen happened

to be at the Region I office when Ms. S.-N. asked him to come

into her office to review Dr. Sklar's psychological report. The

only persons present were Ms. S.-N., Respondent, and Dr. Rosen.

36. Dr. Rosen has known Dr. Sklar for many years and

quickly reviewed her report. Ms. S.-N. had no questions about

the report. After his review, Dr. Rosen signed the IEP as the

evaluation specialist.

37. Although Dr. Sklar is a school psychologist employed

by the School Board, her report pertaining to S.N. is properly

considered as being a private psychological evaluation because

Dr. Sklar's evaluation of S.N. was not prepared pursuant to

School Board protocol.

38. Either Dr. Rosen or Respondent should have signed a

form styled "Receipt of Private Psychological Evaluation," which

would have acknowledged receipt of the private evaluation from

Ms. S.-N. The form contains the following caveat: "A copy of

this form should be kept in the student's cumulative folder."

Respondent failed to ensure that this form was signed and placed

in S.N.'s cumulative folder.

39. Dr. Rosen should have completed and signed a form

styled "Review of Psychological Reports Originating Outside

Miami-Dade County Public Schools." That form includes a section

for the school psychologist to determine whether the report is

sufficiently recent and whether the evaluator meets professional

background criteria. At the bottom of the form is a note that

"This form is required for all psychological evaluations

originating outside M-DCPS." Respondent failed to ensure that

Dr. Rosen completed and signed that form.

40. The determination that S.N. met ESE eligibility was

not made by a properly convened staffing committee. There were

three persons employed by the School Board at the Krop meeting

(Respondent, Ms. Rubinowitz, and Ms. S.-N.). Likewise, there

were three persons employed by the School Board at the Region I

office meeting (Respondent, Dr. Rosen, and Ms. S.-N.). Ms. S.-

N. attended both meetings as a parent; not as a School Board

professional. Ms. Rubinowitz and Dr. Rosen did not participate

in the same meeting. Consequently, no staffing meeting as

contemplated by the School Board's policies occurred because a

minimum of three School Board professionals did not meet as a

staffing committee to determine eligibility.

41. There was a dispute as to whether the staffing

committee had adequate information to determine that S.N. met

the criteria for ESE services under the SLD category or under

the OHI category. That dispute is resolved by finding that a

properly convened staffing committee had the right to rely on

Dr. Sklar's report, on Dr. Karpf's records, and on input from

Ms. S.-N. in concluding that S.N. was eligible under both

categories. Further, the available information would have been

sufficient for a properly convened staffing committee to

determine that S.N. was eligible for ESE services under both

categories.

42. There was insufficient evidence to establish that the

substantive contents of the IEP developed October 15, 2008, were

inappropriate. 7 /

43. The Matrix of Services form contains five "domains."

Domain A relates to "Curriculum and Learning Environment."

Domain B relates to "Social/Emotional Behavior." Domain C

relates to "Independent Functioning." Domain D relates to

"Health Care." Domain E relates to "Communication." Under each

domain is a "Level of Service" that begins with Level 1 and ends

with Level 5. There is a descriptor on the form and in a

handbook as to what constitutes a level of service. The person

completing the Matrix of Service form assigns a number to each

domain based on the level of service provided in the IEP. The

numbers for the five domains are added together to produce what

is referred to as the "Cost Factor Scale," which is used to

determine state funding to the School Board. The higher the

Cost Factor Scale, the more state funding the School Board would

receive for the student. The Cost Factor Scale is also utilized

in determining the funding for McKay Scholarships.

44. As part of the IEP process, Respondent completed a

Matrix of Services form in conjunction with the October 15,

2008, IEP. Petitioner established that Respondent should have

scored Domain A as a 3 as opposed to a 4. As scored by

Respondent, the total domain rating was 12. If Respondent had

correctly scored Domain A, the total domain rating would have

been 11. Domain totals ranging from 10-13 produce a cost factor

scale of 252. Because the Cost Factor Scale was not changed,

this error did not become significant until Respondent completed

the Matrix of Services form in conjunction with the February

2009 IEP.

45. S.N. withdrew from Krop on October 23, 2008, and

returned to her private school placement shortly thereafter.

46. Between October 2008 and February 2009, S.N.'s

negative behaviors escalated.

47. On February 5, 2009, Ms. S.-N. re-enrolled S.N. at

Krop. On the instructions of Ms. S.-N., Respondent convened an

interim IEP meeting on February 9, 2009. The purpose of the

meeting was to "review accommodations." An interim IEP

coversheet was prepared by Respondent. Those purporting to sign

the coversheet as having participated in the IEP team meeting

and their positions were: Ms. S.-N. (parent), S.N. (student),

Respondent (LEA), Ms. Rubinowitz (ESE teacher and evaluation

specialist), and Mr. Davidson (general education teacher). As

he did with the earlier IEP, Mr. Davidson signed the interim IEP

coversheet on February 9, 2009, without having attended the IEP

meeting or providing any input. No general education teacher

participated in the IEP meeting. Consequently, this IEP team

was not appropriately formed. Respondent failed to adhere to

School Board procedures in assembling the IEP team.

48. At that meeting, the level of counseling for S.N. was

changed from weekly to daily, and a provision was added for the

counselor to consult with the family on a monthly basis to

monitor the status of S.N.'s focus on schoolwork. This change

was based on input from Ms. S.-N. as to S.N.'s escalating

behavior.

49. The body of the IEP was not changed to reflect the

change in counseling for S.N. from a weekly basis to a daily

basis. That omission was an error by Respondent. A note was

added to the IEP to reflect the added provision for family

counseling.

50. Respondent completed a Matrix of Service form on

February 9, 2009, based on the interim IEP. Domain B was

increased from a 3 to a 4 because of the change from weekly

counseling to daily counseling. Domain D was increased from a 1

to a 2 because of the addition of monthly counseling with the

student's family. The total domain rating increased from 12 to

14 based on the increases in Domains B and D. The Cost Factor

Scale increased from a score of 252 to a score of 253.

51. Petitioner established that Domain B should not have

been increased because the IEP does not reflect that the student

would begin receiving daily counseling.

52. Because of Respondent's scoring errors, the final Cost

Scale Factor was 253. Had Respondent correctly scored the

Matrix of Services form, the final Cost Scale Factor would have

been 252. Determining a level of service under a particular

domain requires some subjectively. While Respondent made the

scoring errors reflected above, Petitioner failed to prove that

Respondent deliberately "fudged" her scoring to benefit Ms. S.-

N. 8 /

53. On February 20, 2009, S.N. was withdrawn from Krop by

her father. Subsequent to that withdrawal, Ms. S.-N. applied

for a McKay Scholarship for S.N. for the 2009-10 school year.

The application included the two IEPs discussed herein and the

two Matrix of Services forms completed by Respondent. Had Ms.

S.-N. been successful in obtaining a McKay Scholarship, the

amount of the scholarship would have been greater if it had been

awarded on a Cost Factor Scale of 253 as compared to a Cost

Factor Scale of 252.

54. Respondent had no knowledge that Ms. S.-N. intended to

apply for a McKay Scholarship on behalf of S.N. at any time

relevant to this proceeding.

55. S.N. has now graduated from a high school in Broward

County, Florida. Until her graduation, S.N. received services

and accommodations similar to those reflected on the IEPs at

issue in this proceeding.

CONCLUSIONS OF LAW

56. DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120.57(1).

57. Because Petitioner seeks to terminate Respondent's

employment, which does not involve the loss of a license or

certification, Petitioner has the burden of proving the

allegations in its Notice of Specific Charges by a preponderance

of the evidence, as opposed to the more stringent standard of

clear and convincing evidence. See McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd.

of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

58. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

59. The School Board's Notice of Specific Charges alleges

that Respondent is guilty of (I) misconduct in office, (II)

immorality, (III) violation of School Board Rule 6Gx13-4A-1.21

relating to Responsibilities and Duties of School Board

employees, (IV) violation of School Board Rule 6Gx13-4A-1.213

relating to the Code of Ethics, and (V) School Board Rule 6Gx13-

4A-1.212 relating to Conflict of Interests.

60. Section 1012.33(6)(b) applies to Respondent's

employment and provides grounds for the dismissal or suspension

of that employment. Included among those grounds are

"immorality" and "misconduct in office" as those terms are

defined by the State Board of Education.

61. Count I of the Notice of Specific Charges alleges that

Respondent is guilty of misconduct in office. Florida

Administrative Code Rule 6B-4.009(3) defines that term as

follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

62. Florida Administrative Code Rules 6B-1.001 and 6B-

1.006 have been transferred to Florida Administrative Code Rules

6A-10.080 and 6A-10.081, respectively. Florida Administrative

Code Rule 6A-10.080(2) and (3) provide as follows:

2. The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

3. Aware of the importance of maintaining

the respect and confidence of one's

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

63. Florida Administrative Code Rule 6A-10.081(5)

provides, in relevant part, as follows:

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

64. The two IEPs at issue in this proceeding reflect Mr.

Davidson's participation on the IEP team as a general education

teacher. That representation is false. The IEP dated

October 15, 2008, reflects Dr. Rosen's participation on the IEP

team as an evaluation specialist. That representation is false.

Respondent failed to follow established School Board policies

regarding assembling a staffing committee and an IEP team, and

Respondent failed to collect required documentation. Respondent

did not exercise the best professional judgment and integrity,

did not maintain honesty in all professional dealings, and

submitted documents (IEPs) that contained false information.

65. The definition of "misconduct" requires that the

conduct is so serious "as to impair the [Respondent's]

effectiveness in the school system." Impaired effectiveness in

the school system can be found based on the conduct alone if the

conduct is sufficiently serious. See Purvis v. Marion County

School Board , 766 So. 2d 492 (Fla. 5th DCA 2000). Respondent's

conduct as found in this Recommended Order is sufficient without

other proof to establish that Respondent's effectiveness in the

school system has been impaired.

66. Count II of the Notice of Specific Charges alleges

that Respondent is guilty of immorality. Florida Administrative

Code Rule 6B-4.009(2) defines that term as follows:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

67. Petitioner's allegations of immorality are based on

alleged facts that Petitioner did not prove. Respondent is not

guilty of immorality as alleged in Count II of the Notice of

Specific Charges.

68. Count III of the Notice of Specific Charges alleges

that Respondent violated School Board Rule 6Gx13-4A-1.21, which

relates to Responsibilities and Duties of School Board employees

and provides, in relevant part, as follows under the heading

Employee Conduct:

All persons employed by [the School Board]

are representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

69. For the reasons discussed under Count I (misconduct in

office), it is concluded that Respondent committed the violation

alleged in Count III.

70. Count IV of the Notice of Specific Charges alleges

that Respondent violated School Board Rule 6Gx13-4A-1.213, which

relates to the Code of Ethics and provides, in relevant part, as

follows:

I. INTRODUCTION

All members of [the School Board],

administrators, teachers, and all other

employees of Miami-Dade County Public

Schools, regardless of their position,

because of their dual roles as public

servants and educators are to be bound by

the following Code of Ethics. Adherence to

the Code of Ethics will create an

environment of honesty and integrity and

will aid in achieving the common mission of

providing a safe and high quality education

to all Miami-Dade County Public Schools

students.

* * *

2. The educator's primary professional

concern will always be for the student and

the development of the student's potential.

The educator will therefore strive for

professional growth and will seek to

exercise the best professional judgment and

integrity.

3. Aware of the importance of maintaining

the respect and confidence of one's

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

* * *

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

Honesty - Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating or lying.

* * *

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well-being of the students and the

honest performance of professional duties

core guiding principles.

2. To obey local, state and national laws,

codes and regulations.

* * *

5. To take responsibility and be

accountable for his or her actions.

6. To avoid conflict of interest or any

appearance of impropriety.

* * *

8. To be efficient and effective in the

delivery of job duties.

71. For the reasons discussed under Count I (misconduct in

office), it is concluded that Respondent committed the violation

alleged in Count IV.

72. Count V of the Notice of Specific Charges alleges that

Respondent violated School Board Rule 6Gx13-4A-1.212, which

relates to Conflicts of Interest and provides, in relevant part,

as follows:

No School Board employee shall corruptly use

or attempt to use his or her official

position or perform his or her official

duties to secure a special privilege,

benefit, or exemption for himself, herself,

or others.

73. Petitioner failed to establish that Respondent acted

"corruptly" in using her position to expedite the IEP process

for her supervisor's daughter or by the errors she made scoring

the Matrix of Services form. Respondent was acting on her

supervisor's instructions when she expedited the IEP process.

The scoring errors were mistakes that do not constitute a

violation of the Conflict of Interest Rule. Respondent is not

guilty of the violations alleged in Count V of the Notice of

Specific Charges.

74. Because of the findings of misconduct in office, the

School Board has the authority to dismiss, suspend, or otherwise

discipline Respondent's employment. In its Proposed Recommended

Order Petitioner asserts that Respondent's employment should be

terminated. That assertion is based, largely, on factual

allegations it did not prove. Termination is, in the opinion of

the undersigned, not warranted. In forming this opinion, the

undersigned has considered Respondent's long history of

employment with the School Board, the absence of any harm to any

person or entity, and that she was dealing with her supervisor

as the parent of the student. She failed to comply with

procedures and she made mistakes, but she did not act corruptly.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board of Miami-Dade

County, Florida, enter a final order adopting the Findings of

Fact and Conclusions of Law contained in this Recommended Order.

It is further RECOMMENDED that the final order find Lisa Parker

guilty of the violations alleged in Count I (misconduct in

office), Count (III) (Violation of School Board Rule 6Gx13-4A-

1.21 relating to Responsibilities and Duties of School Board

employees), and Count (IV) (Violation of School Board Rule

6Gx13-4A-1.213 relating to the Code of Ethics) of the Notice of

Specific Charges and as found in this Recommended Order. It is

further recommended that the final order find Lisa Parker not

guilty of the violations alleged in Count II (immorality) and

(V) (Violation of School Board Rule 6Gx13-4A-1.212 relating to

Conflict of Interests). For the violations found, it is

recommended that the final order suspend Lisa Parker's

employment without pay for a period of 30 school days. Because

Lisa Parker has been suspended for more than 30 school days, it

is RECOMMENDED that her employment be reinstated with back pay.

The calculation of back pay should not include pay for the 30-

day suspension period.

DONE AND ENTERED this 15th day of February, 2013, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February 2013.

ENDNOTES

1/ Ms. S.-N. was the respondent in DOAH Case No. 10-4143 (Fla.

DOAH May 16, 2012.) Beginning at paragraph 5 of the Findings of

Fact section of that Recommended Order, ALJ Edward T. Bauer

described the John M. McKay Scholarships for Students with

Disabilities Program, which is codified at section 1002.39. It

is unnecessary to describe that program in this Recommended

Order because there was, as found below, insufficient evidence

to establish that Ms. Parker knew that Ms. S.-N. intended to

apply for a McKay Scholarship on behalf of her daughter.

2/ See Petitioner's exhibit 19, Bates stamped page 653).

3/ See Petitioner's exhibit 19, Bates stamped page 660.

4/ Florida Administrative Code Rules 6A-6.03018 and 6A-6.030152,

define those terms.

5/ Dr. Karpf established that S.N.'s issues were serious and

substantial.

6/ Mr. Davidson testified that it was not an unusual practice at

Krop for a general education teacher to review and sign an IEP

after it had been prepared without having participated as a

member of the IEP team.

7/ The IEP contained a scrivener's error. On page 2 of the IEP

(Petitioner's exhibit 22, Bates stamped page 1155) the word

"not" was left out of the following statement: "[S.] has a

learning disability in processing speed that is [not] allowing

her to reach her full potential . . . ." In finding no

substantive deficits, the undersigned has not ignored the

criticism Ms. Waxman had of the October 15, 2008, IEP.

8/ Errors in scoring Matrix of Services numbers are apparently

not unusual. In 2008, the School Board initiated what was

called the "Matrix Project," during which Matrix Service forms

were reviewed and Matrix of Services scores were changed upward,

which resulted in an increase in Cost Factor Scales. That

project generated some $20 million for the School Board in

additional state funding.

COPIES FURNISHED :

Christopher J. La Piano, Esquire

Miami-Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

Maria del Carmen Calzon, Esquire

Suite 249

1825 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Karen Lowell, Esquire

Law Offices of Karen Lowell

1683 Southwest 109th Terrace

Fort Lauderdale, Florida 33324

Alberto M. Carvalho, Superintendent

Miami-Dade County School District

1450 Northeast Second Avenue

Miami, Florida 33132-1308

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Tony Bennett, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.