03-001227 Pinellas County School Board vs. Kari E. Shouse Status: Closed Recommended Order on Friday, August 15, 2003.

Summary: Teacher assistant guilty of misconduct in office for giving students answers during a test.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1227

)

KARI E. SHOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, a final hearing was held in this case

on June 10, 2003, in Saint Petersburg, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Jacqueline M. Spoto Bircher, E squire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Mark Herdman, Esquire

Herdm an & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether Respondent should be dismissed from her employment

with Petitioner based on the allegations contained i n

Petitioner's letter to Respondent dated October 25, 2002.

PRELIMINARY STATEMENT

By letter dated October 25, 2002, the Superintendent of

Petitioner Pinellas County School Board (School Board) notified

Respondent Kari E. Shouse (Shouse) that she was suspe nded from

her position with the School Board and that a recommendation of

dismissal would be presented to the School Board at its

November 11, 2002, meeting. By letter dated November 1, 2002,

Shouse requested an administrative hearing.

The case was forwar ded to the Division of Administrative

Hearings on April 3, 2003. The case was originally assigned to

Administrative Law Judge Fred L. Buckine, but was transferred to

the undersigned to conduct the final hearing.

At the final hearing, the School Board call ed the following

witnesses: Jayme Klapperich, Arnold Klapperich, Scott

Dissinger, Ryan Zander, Amanda Zander, Lindsei Spagnola, Loretta

Stone, David Willard, Dorothy Zeason, Mike Miller, and Jim

Barker. Petitioner's Exhibits 1, 2, and 4 through 12 were

a dmitted in evidence. Shouse testified in her own behalf and

presented no exhibits.

At the final hearing, the parties agreed to file their

proposed recommended orders within ten days of the filing of the

transcript. Two volumes of the Transcript were file d on July 3,

2003. A portion of the Transcript had been omitted by the court

reporter, and that portion of the Transcript was filed on

July 21, 2003. On July 14, 2003, Petitioner filed an unopposed

Motion for Enlargement of Time to Submit Findings of Fac t,

Conclusions of Law and Supporting Memorandum. The motion was

granted, giving the parties until July 24, 2003, in which to

file their proposed recommended orders. The parties timely

filed their Proposed Recommended Orders.

FINDINGS OF FACT

1. Shouse w as employed by the School Board as a teacher's

assistant for nearly three years. Her duties included

administering tests to students who were in the Exceptional

Student Education (ESE) program at North East High School. Most

of the ESE students had diffi culty reading, and it was Shouse's

responsibility to assist them in reading the examinations and

other materials which could be used in taking the examinations.

2. Jayme Klapperich (Mrs. Klapperich) and Arnold

Klapperich (Mr. Klapperich) taught earth scie nce at North East

High School. On October 7 and 8, 2002, Shouse was assigned to

administer the first quarter earth science examination for the

ESE students in Mr. and Mrs. Klapperich's classes.

3. The examination was a 110 - question, multiple - choice

tes t, which was divided into 11 sections. Each section

represented a chapter in the textbook, and each section was

divided into two subsections. Each subsection consisted of five

definitions followed by five vocabulary words. The students

were to match the definitions to the correct vocabulary word.

Shouse had administered similar examinations for the Klapperichs

in the past.

4. Part of each student's classwork in the Klapperichs'

classes included the preparation of a notebook which was divided

by chapter s of the textbook. Each chapter section was supposed

to include vocabulary words and definitions, questions and

answers on the materials in the chapter, and quizzes and tests

that had been given on that chapter. The quality of the

notebook varied by stud ent, and some of the students' notebooks

were incomplete. The students were allowed to use their

notebooks during the first quarter examination, but each student

could use only the notebook which that student had prepared.

5. The examination was admini stered in a conference room

where other examinations were also being administered by another

teacher's assistant. The Klapperich students sat at a long

table with Shouse seated at the end of the table and the

students seated on each side.

6. Shouse admin istered the examination to ten ESE

students in Mr. Klapperich's class on October 7, 2002. She went

to Mr. Klapperich's class to get the students who would be

taking the examination in the conference room. She was present

when Mr. Klapperich advised the s tudents that each student was

to use only his or her own notebook during the test.

7. During the administration of the examination to

Mr. Klapperich's students, the students were loud and were

shouting out the answers to one another. Shouse would read th e

question, and some of the students would raise their hands or

just shout out an answer. If the answer was incorrect, Shouse

would give them the correct answer. Eventually, Shouse began to

give the correct answers to the students.

8. The ten ESE studen ts in Mr. Klapperich's class who took

the test administered by Shouse on October 7 made "A's" on their

examination. Many of the students missed the same questions. 1

9. Shouse administered the examination to eight ESE

students in Mrs. Klapperich's class on October 8, 2002. As in

the examination for Mr. Klapperich's class, the students were

allowed to use only their own notebook. One of the students did

not have his notebook with him during the examination.

10. The normal time for taking the examination would have

been at least an hour. The ESE students to whom Shouse

administered the examination on October 8 finished the

examination in 15 to 25 minutes. Mrs. Klapperich commented to

one student on the short amount of time it took the students to

take t he test.

11. During the examination, Shouse read the examination

questions to the students as a group. She then read the answer

from one student's notebook. Shouse testified that she checked

each student's notebook before reading the answer to make sure

that the student had the correct answer in his or her notebook.

Her testimony is not credible. One student did not have his

notebook. By her own admission, the writing in many of the

notebooks was practically illegible. It would not have been

possible to read 110 questions, to find the answers in the

notebook, and to check the notebooks of eight students for each

question to make sure the student had the definition in his

notebook in the span of 25 minutes.

12. The students taking the examination on O ctober 8

made "A's" on their examinations. All the students gave the

same incorrect answers for questions 14, 15, 69, and 70.

Mrs. Klapperich became suspicious because all the students made

"A's" and they all gave the same incorrect answers to four

que stions. Additionally, six of the students had grade averages

of "F" prior to taking the test. Her suspicions were further

aroused when she confiscated a note immediately after the test

which was written to a classmate by one of the students who had

taken the examination with Shouse's assistance. The student

admitted at the final hearing that she wrote the note and that

the note concerned the earth science examination administered by

Shouse on October 8. The note stated in part:

I wrote. She read the q uestions - n - gave us

the answers.

* * *

(101) Should have gone it was the easiest

thing I've done all year.

13. Mrs. Klapperich discussed her suspicions with her

husband, and they agreed to report the situation to school

administrators. An investiga tion ensued. The students were

required to retake the examination in November. Because many of

the students no longer had their notebooks, the students were

allowed to use their textbooks in the examination.

14. Eight of the students in Mr. Klapperich's class retook

the examination. The time these students took in taking the

test ranged from 80 to 150 minutes. Four of the students made

"A's." Three students made "B's," and one student made an "F."

15. Five of the students in Mrs. Klapperich's class r etook

the examination. The time for taking the examination for these

students ranged from 65 to 135 minutes. One student made an

"A," one student made a "B," two students made "C's," and one

student made a "D."

16. The School Board had adopted disciplin ary guidelines

for employees of the School Board. School Board Policy

8.25(1)(v), provides that the penalty range for misconduct or

misconduct in office is from caution to dismissal.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

j urisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

18. The School Board seeks to dismiss Shouse for

misconduct. The School Board has the burden to establish the

allegations against S house by a preponderance of the evidence.

Dileo v. School Board of Dade County , 569 So. 2d 883, 884 (Fla.

3rd DCA 1990).

19. The School Board has authority to dismiss School Board

employees pursuant to Section 230.23(5)(f), Florida Statutes

(2001). Sect ion 231.3605(2)(b), Florida Statutes (2001),

applies to the termination of educational support staff such as

teacher's assistants, and provides:

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall conti nue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school board rule in cases where a

collective bargaining agreement does not

exist, or reduces the number of em ployees on

a districtwide basis for financial reasons.

(c) In the event a superintendent seeks

termination of an employee, the school board

may suspend the employee with or without

pay. The employee shall receive written

notice and shall have the oppo rtunity to

formally appeal the termination. The

appeals process will be determined by the

appropriate collective bargaining agreement

or by school board rule in the event there

is no collective bargaining agreement.

20. School Board Policy 8.25(1)(v) provides that an

employee may be disciplined for misconduct in office. The

policy does not define misconduct in office; however, the

Department of Education's definition of misconduct as set forth

in Rule 6B - 4.009(3), Florida Administrative Code, is instr uctive

and provides:

(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.

21. The principles of professional conduct require that

educators shall "make reasonable effort to protect the student

from conditions harmful t o learning" and "maintain honesty in

all professional dealings." Rules 6B - 1.006(3)(a) and 6B -

1.006(5)(a), Florida Administrative Code.

22. The School Board has established by a preponderance of

the evidence that Shouse did give answers to students during the

administration of the Klapperichs' earth science examinations,

and that the manner in which she read from one student's

notebook enabled others to benefit from materials in a notebook

other than their own in violation of the Klapperichs'

instructions. Such actions are dishonest and harmful to the

students' learning. Shouse's conduct impaired her effectiveness

in the school system and constitutes misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered finding Kari E.

Shouse guilty of misconduct in office and dismissing her from

employment with Petitioner.

DONE AND ENTERED this 15th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 2003.

ENDNOTE

1/ All of the students gave "b" as an answer for question 69

and "c" for question 70. When the papers were graded, seven

students' answers to these que stions were checked as incorrect,

and three students' answers were not checked as incorrect. Nine

of the students gave "d" as the answer for question 21 and "c"

for question 22. Five of the nine students' answers to these

questions were checked as incorr ect, and the remaining four

students' answers were not checked as incorrect.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Jacqueline M. Spoto Bircher, Esquire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

D aniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Dr. J. Howard Hinesley, Superintendent

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770 - 3536

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 should be filed with the agency that

will issue the Final Order in this case.