11-004933TTS Miami-Dade County School Board vs. Walita Mcbride Status: Closed Recommended Order on Tuesday, July 31, 2012.

Summary: Petitioner proved by a preponderance of the evidence that Respondent committed acts constituting misconduct in office so serious as to impair her effectiveness in the school system. Accordingly, just cause exists to terminate Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD , )

)

P etitioner, )

)

vs. ) Case No. 11 - 4933TTS

)

WALITA MCBRIDE , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2011), before Cathy M. Sellers, an Administrative Law Judge of

the Division of Administrative Hearings ( " DOAH " ), on February 9,

2012 , by video teleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Assistant School Board Attorney

The School Board of Miami - Dade

County, Florida

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Randy Alan Fleischer, Esquire

8258 W est State Road 84

Davie, Florida 33324

STATEMENT OF THE ISSUE

Whether Respondent committed misconduct in office and

violated Miami - Dade School Board Rules, and, if so, whether such

conduct constitutes just cause to dismiss he r from employment as

a teacher with Miami - Dade County Public Schools.

PRELIMINARY STATEMENT

On September 7, 2011, Petitioner, Miami - Dade County School

Board, took proposed action to suspend Respondent, Walita

McBride, without pay and to dismiss her from employment .

Respondent timely requested a hearing pursuant to sections

120.569 and 120.57(1) and the matter was referred to the

Division of Admin istrative Hearings for conduct of a hearing .

The final hearing initially was set for November 28 , 2011,

but pursuant to motion , was continued and rescheduled for

February 9, 2012 . Petitioner filed a Notice of Specific Charges

against Respondent on Nove mber 21, 2011. The parties filed a

Joint Prehearing Stipulation on January 31, 2012.

The final hearing was held on February 9, 2012 . Petitioner

presented the testimony of Leticia Fernandez, S.R., Adrian Montes,

A.M. , Charrise Mosley, Gabriella Degadillo, Adriana Sanabria,

Adazeh Trinidad - Oroujalipour, Ana Pinto, and Respondent .

Petitioner ' s Exhibits 1, 3, and 9 through 14 were admitted into

evidence pursuant to the parties ' stipulation, and Petitioner ' s

Exhibits 2, 4, 5, 6, 7, and 8 were admitted into ev idence over

objection. Respondent testified on her own behalf and also

presented the testimony of Vickie Dunnom, Glennecka Durand, Margie

Gaitor, Griesel Beltran, Ramon Pacho, Sherri Daniels, Tom Gammon,

Freida Griffith, Joanne Rosen, Rachael Vaughn, and Adrian Montes .

Respondent ' s Exhibits 1 through 15 were admitted into evidence

pursuant to the parties ' stipulation .

The two - volume Transcript was filed with the Division of

Administrative Hearings on June 1 8 , 2012. Pursuant to Notice of

Filing Transcript issued on June 19, 2012 , the parties were given

until June 28, 2012, to file proposed recommended orders.

Petitioner ' s Proposed Recommended Order was filed on J une 29,

2012, and was considered in preparing this Recommended Order.

Respondent di d not file a proposed recommended order.

FINDINGS OF FACT

The Parties

1. Petitioner is a duly - constituted School Board charged

with the duty to operate, control, and supervise all free public

schools within the school district of Miami - Dade County,

Florida, pursuant to article IX, section 4 (b) of the Florida

Constitution and section 1001.32, Florida Statutes .

2. At all times pertinent to this proceeding, Respondent

was employ ed as a n exceptional student education ( " ESE " ) teacher

at Olinda Elementary School ( " Olinda " ) , a public school located

in Miami - Dade County, Florida, and part of the Miami - Dade Public

Schools.

3 . At all times pertinent to this proceeding, Respondent ' s

employment was governed by the collective bargaining agreement

( " UTD Contract " ) between Petitioner and the United Teachers of

Dade, Petitioner ' s rules, and Florida law.

Applicable Requirements of IDEA and Florida Law

4 . The Individuals w ith Disabilities Education Act

( " IDEA " ) requires, as a condition of receiv ing federal funding

assistance for educating disabled students, that local education

agenc ies ( in this case , Petitioner and Olinda ) establish and

maintain procedures in accordance with the IDEA and state

policies and procedures implementing the IDEA, to ensure that

students with disabilities are guaranteed certain safeguards

regarding the provision of a free appropriate public education

( " FAPE " ). See 20 U.S.C. § 1415(a); see also 34 C.F.R.

§ 300.201. Therefore , it is imperative that Petitioner comply

with the procedural and substantive requirements of the IDEA and

implementing federal regulations, and with Florida S tatutes and

administrative rules implementing the IDEA in Florida .

5. To t his end , Petitioner requires personnel employed by

Miami - Dade County Public Schools (the " District " ) to strictly

follow the standards and processes it and the individual schools

within the District have established to provid e ESE services to

disabled students consistent with the IDEA and Florida law .

6. The IEP is a critical component in providing FAPE to

disabled students under the IDEA. See 20 U.S.C. § 1402.

The IEP is a written statement for a disabled student that ,

among other things, describes the student ' s present level of

academic achievement and functional performance; sets forth

measurable annual goals designed to enable the student to be

involved and make progress in the general curriculum; identifies

special e ducation , related services , and supplementary aids and

services that will be provided to assist the student in

obtaining the annual goals; and establishes the means by which

the student ' s progress will be measured . See Fla. Admin. Code

R. 6A - 6.03028(3)(h ); 34 C.F.R. § 300.320.

7. The IEP for each student must be developed, reviewed ,

and r evised in accordance with Florida Administrat ive Code

rules 1 / that establish the composition of the IEP team , the

respective roles of its members , the procedures for conducting

IEP team meetings , and the substantive requirements for the IEP.

Creation and Maintenance of IEPs at Olinda

8 . Respondent began teaching at Olinda in September 2010.

Respondent was assigned the responsibility for creating and

maintain ing IEPs for the third, fourth, and fifth grade ESE

students 2 / at Olinda for the 2010 - 2011 school year .

9 . IEPs are created at Olinda pursuant to a process

established by the school ' s administration and the local

education agency ( " LEA " ) representative , 3 / consistent with the

IDEA, state law, and District policy. Specifically, ESE

t eachers are responsible for creating, developing, and

maintaining the IEPs for the school ' s disabled students .

10. As part of this process, the teacher responsible for a

particular disabled student notifies the parents and IEP team

members 4 / regarding the IEP team meeting and schedules t he

meeting. The meeting is held with as many team member s as

possible in attendance .

11 . The teacher then create s the IEP using the District ' s

Special Education - Electro nic Management System ( " EMS " ). To

create the IEP, the teacher logs onto EMS using his or her

unique employee identificat ion ( " ID " ) number and unique

password. The employee ID number and password are c onfidential

and may only be used to log into EMS by the teacher to which

they belong.

12. T he teacher creates a draft IEP , which is circulated

to each IEP team member who attended the meeting for comment and

input . The teacher then revises the draft as appropriate ,

finalizes the IEP , and obtains the signatures of the team

members who attended the meeting. The finalized IEP is to be

signed only by the persons who actually participated in the IEP

team meeting . 5 /

13. Once the IEP is s igned by all team members , the

teacher faxes it into EMS and it becomes designated as " Final. " 6 /

The teacher responsible for creating the IEP is the only person

authorized to fax it into EMS.

14 . Once the IEP is Final, a hard copy is to be printed

and included in the student ' s cumulative folder.

15 . O nce the IEP is " Final, " it cannot be changed without

going through the established procedures to modify the IEP,

including notifying all IEP team members and conducting an IEP

meeting.

Audit of IEPs at Olinda

1 6 . On or about February 25, 2011, Adrian Montes, the

Principal at Olinda, was informed that the parent of an Olinda

ESE student had complained to the Florida Department of

Education regarding the placement of her child. Montes

contacted the p arent regarding her concerns. The parent denied

having made such a complaint.

1 7 . T he student ' s IEP was soon scheduled for annual

review , so Montes decided to attend the IEP meeting . The

meeting w as conducted on February 28, 2011. At the meeting,

Montes noticed Respondent making numerous mistakes regarding

creation of the IEP. Concerned about the integrity of the IEP

creation process at Olinda, he requested Leticia Fernandez, the

school ' s LEA representative and head of its ESE program, to

conduct an audit of Olinda ' s IEPs.

1 8 . On or about March 1, 2011, Fernandez reported to

Montes that three IEPs for students for which Respondent was

responsible were missing from the students ' cumulative folders,

where pursuant to school protocol, they are required to be

kept . 7 /

1 9 . Montes asked Respondent about the missing IEPs .

Respondent provided him with hard copies of the documents the

following day. According to Respondent, these copies had been

stored in her classroom.

20 . Montes compared the hard copies with the electronic

versions of the same students ' Final IEPs stored in EMS , and

noted several discrepancies between the hard copies and the

electronic version of the Final IEPs in EMS .

21 . Fernandez ' audit revealed that school - wide, five IEPs

contained discrepancies between the hard copies and the Final

e lectronic version s stored in EMS , and that in some cases the

IEPs were missing signatures or appeared to have falsified

signatures . A ll five IEPs belonged to students for which

Respondent was responsible.

IEPs for which Respondent was Responsible

22 . Respondent was responsible for creating and

maintaining the IEP s for J.A.B., J.D.H., L.L.E., S.M.M., and

C.A.M.

23 . T he Final IEPs for some of these students contained

signatures that did not belong to the person purported to have

signed the IEP , and some were not prepared or finalized in

accordance with the District ' s established protocol for creating

IEPs.

24 . Specifically, with respect to J.A.B., t he signature

for general education teacher Gabriella Del g adillo appearing on

the Final IEP was not her s .

25 . With respect to J.D.H., the parent ' s signature

appearing on the Final IEP was not hers. She credibly testified

that she did not attend any IEP meeting s for her child, would

have attended had she been notified, and did not sign the Final

IEP. Additionally , Respondent obtained the signatures of

general education teacher Charrise Mosley and exceptional

education teacher Vickie Dunnom on the IEP eve n though neither

attend ed an IEP meeting for J.D.H.

26. With respect to L.L.E., the signature on the Final IEP

for Gabriella Delgadillo was not hers and she did not attend any

IEP meetings for L.L.E.

27. With respect to S.M.M., the signature for Char rise

Mosley that appears on the Final IEP was not hers. 8 / Respondent

also requested and obtained Mosley ' s signature on the IEP even

though Mosley did not attend the IEP meeting for S.M.M.

28. With respect to C.A.M., Gabriella Delgadillo , Vickie

Dunnom, guidance counselor Adriana Sanabria , and school

psychologist Azadeh Trinidad - Oroujalipour all credibly testified

that they had not attended an IEP meeting for C.A.M. , and each

credibly testified that the signature a ppearing on the Final IEP

was not hers . C.A.M. ' s parent also testified that she had never

been notified of, and had not attended, any IEP meetings for

C.A.M.

Charges in Notice of Specific Charges Proven

29. Petitioner ' s Notice of Specific Charges allege s that

Respondent corrupted the IEP creation process in violation of

the IDEA, Florida law, and Petitioner ' s rules, by forging the

signatures of certain school personnel on IEPs of students for

which she was responsible; asking IEP team members to sign IEPs

for students without having attended the IEP meetings for those

students; and designating IEPs as " Final " in EMS without having

conducted IEP meetings for those students.

30 . Respondent testified that she did not fo rge any

signatures on the IEPs and she further claimed that on some of

the IEPs, her signature was forged. N o witnesses testified that

they saw Respondent o r anyone else forge signatures on the IEPs.

3 1 . However, Respondent , through her unique confidential

employee ID number and p assword, was the only person who had

access to EMS to fax in the finalized IEPs on which the

falsified or forged signatures appear ed .

32. The circumstantial evidence in this case gives rise to

the inference, unless rebutted, that Respondent falsified or

forged signatures of IEP team members IEPs in violation of

Florida and federal law, as charged in the Notice of Specific

Charges. 9 /

33. Respondent failed to present credible evidence to

rebut this inference. Specifically, Respondent claimed that

be cause the student cumulative files were stored in a cabinet

that was not always locked and therefore accessible at times to

other school personnel, others had opportunity to forge the IEPs

and , in fact, did so. However, her t estimony on this point was

vag ue and speculative ; she did not present any specific,

credible evidence regarding who may have forged the IEPs, or

when, why, or how they did so, and h er testimony was not

corroborated by any other witnesses . Furthermore, w hether the

cumulative fo lders were accessible to others, or even whether

hard copies of the IEPs in the folders were forged, does not

explain or otherwise negate that falsified signatures appeared

on the Final IEPs that were faxed into EMS. Accordingly, the

undersigned finds tha t Respondent falsified or forged signatures

of IEP team members IEPs in violation of Florida and federal

law , as charged in the Notice of Specific Charges .

3 4 . Additionally , the credible evidence establishes that

Respondent sought and obtained the signatures of IEP team

members who had not attended meetings for the students whose

IEPs they were asked to sign. Respondent ' s actions in doing so

were contrary to Olinda ' s established protocol that only persons

attending an IEP meeting for a particular s tudent are to sign

that student ' s IEP. Respondent claimed that she was forced to

seek signatures of IEP team members who had not attended the

meetings because Montes would not excuse them from class , so

they were unable to attend. However, her testimony was not

corroborated by any other witnesses, several of whom were IEP

team members whose signatures she obtained even though they had

not attended IEP team meetings. The undersigned finds

Respondent ' s testimony on this point unpersuasive.

3 5 . The evidence also establishes that Respondent did not

conduct IEP meetings for certain students before finalizing

th o se students ' IEP s . Specifically, the teachers ( other than

Respondent ) whose names appear on the Final IEP s of L.L.E. and

C.A.M. credibly testified that they did not attend any IEP

meetings for these students. The parents of these students also

credibly testified that they were not notified of, and did not

attend, any IEP meetings for their children. Without the

teachers and paren ts comprising the IEP teams for these students

in attendance , the IEP team meetings for these students could

not have taken place. Respondent did not present any credible

evidence that she did , in fact, conduct the IEP meetings for

these students. Accordingly, it is determined that Respondent

finalized certain students ' IEPs without having conducted IEP

team meetings for those students, as charged in the Notice of

Specific Charges.

Findings of Ultimate Fact

3 6 . Petitioner seeks to terminate Respondent ' s employment

as a teacher with Miami - Dade County Public Schools. Pursuant to

section 1012.33(1)(a), 10 / Petitioner can terminate Respondent

only for " just cause. " " Just cause " is defined to include ,

among other things, " misconduct in office. "

3 7 . Florida Administrative Code Rule 6A - 5.056(3) 11 / defines

" misconduct in office " as a violation of the Code of Ethics of

the Education Profession as adopted in rule 6B - 1.001 , and the

Principles of Professional Conduct for the Education Profession

in Flori da as adopted in rule 6B - 1.006 , which is so serious as

to impair the individual ' s effectiveness in the school system.

Petitioner's rules 6Gx - 4A - 1.21 and 6Gx - 4A - 1.21 incorporate the se

standards and make them applicable to District personnel,

including instructional personnel.

3 8 . The persuasive evidence establishes that Respondent

violated the Code of Ethics of the Education Profession codified

in rule 6B - 1.001. Her actions in failing to hold or conduct IEP

meetings for disabled students in her charge and in falsifying

or forging signatures on Final IEPs for these students did not

adhere to Florida or federa l law regarding the creation and

maintenance of IEPs, a key component in the delivery of a f ree

appropriate public education pursuant to disabled students

pursuant to the IDEA and Florida law. By her actions,

Respondent demonstrated that she did not value the worth and

dignity of the students for which she falsified IEPs or failed

to hold IEP meetings. She did not pursue the truth and failed

to demonstrate devotion to excellence or dedication to the

acquisition of knowledge by her students. Further, her actions

demonstrate that her primary professional concern was not for

her students or the development of their potential. She did not

exercise acceptable professional judgment or integrity , and her

actions in falsifying the IEPs and failing to hold IEP me etings

were unethical.

39 . The persuasive evidence also establishes that

Respondent violated the Principles of Professional Conduct for

the Education Profession, rule 6B - 1.006. Specifically,

Respondent did not protect her disabled students from conditions

harmful to learning, and, in fact, affirmatively engaged in

conduct harmful to their learning. She also intentionally

suppressed subject matter relevant to her students ' academic

progress. By failing to follow the procedures and requirements

o f the IDEA and Florida law, she denied her disabled students '

rights regarding the opportunity to obtain a free appropriate

public education. She did not maintain honesty in her

professional dealings and submitted fraudulent information on

documents in co nnection with her professional activities.

4 0 . The persuasive evidence demonstrates that Respondent ' s

actions also violated Petitioner ' s rule 6Gx - 13 - 4A - 1.21,

"Responsibilities and Duties." Specifically, she engaged in

conduct that did not reflect credit on herself or on the school

system. She did not prepare, maintain, and submit accurate

reports regarding her disabled students pursuant to Florida law,

Department of Education Rules, Petitioner ' s rules, and the

established IEP creation process at Olinda. By falsifying IEPs

and failing to conduct IEP meetings , she failed to efficiently

and faithfully teach her disabled students in accordance with

Florida law.

4 1 . The persuasive evidence also establishes that

Respondent violated Petitioner ' s rule 6Gx - 4A - 1.213, the "Code of

Ethics." Petitioner ' s rule incorporates the standards

established in rule s 6B - 1.001, the Code of Ethics of the

Education Profession in Florida , and 6B - 1.006, the Principles of

Professional Conduct for the Education Profession in Florida .

As previously discussed, the evidence establishes that

Respondent violated the st andards established in these rules.

Further, Respondent violated rule 6Gx - 4A - 1.213 by failing to

make the well - being of her disabled students and the honest

perfor mance of her professional duties her core guiding

principles , failing to treat her stud ents with respect and

fairness , and failing to deliver her job duties in an efficient

and effective manner .

4 2 . Based on the foregoing, it is determined that

Respondent ' s conduct constitutes misconduct in office , and that

her misconduct is so serious as to impair her effectiveness in

the school system.

4 3 . Accordingly, it is determined that just cause exists

for Petitioner to terminate Respondent's employment .

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120.57(1) , Fla. Stat .

4 5 . Petitioner seeks to terminate Respondent ' s employment

for "just cause" pursuant to section 1012.33. "Just cause" is

defined to include "misconduct in office." § 1012.33(1)(a),

Fla. Stat.

4 6 . Rule 6B - 1.001, the Code of Ethics of the Education

Profession, provides:

(1) The educator values the worth and

dignity of every person, the pu rsuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The e ducator'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, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

4 7 . Rule 6B - 1.006, the Principles of Professional Conduct

for the Education Profession in Florida, provides in pertinent

part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student's academic progra m.

* * *

(f) Shall not intentionally violate or deny

a student's legal rights.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudu lent information

on any document in connection with

professional activities.

4 8 . Petitioner's rule 6Gx13 - 4A - 1.21, entitled

"Responsibilities and Duties," provides in pertinent part:

I. Employee Conduct

All persons employed by The School Board of

Miami - Dade County, Florida 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 matter

that will refl ect credit upon themselves and

the school system.

* * *

II. Records and Reports

All personnel shall maintain, prepare, and

submit promptly all reports that may be

required by State Law, State Department of

Education Rules, School Board Rules, and

admini strative directives.

* * *

V. Instructional Personnel

Members of the instructional staff, subject

to the rules of the State and District

Rules, shall teach efficiently and

faithfully, using the books and materials

required, following the prescribed courses

of study, and employing approved methods of

instruction as provided by law and the rules

of the State Department of Education.

49 . Petitioner's rule 6Gx - 4A - 1.213, "Code of Ethics,"

provides in pertinent part:

I. INTRODUCTION

All members of The School Board of Miami -

Dade County, Florida, 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 t he 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.

As stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education Rule 6B - 1.001):

1. The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and th e nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

2. The educator's primary professional

concern will always be for the student an d

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 maintain the highest

degree of ethical conduct.

* * *

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

Citizenship Î Helping create a society based

on democratic values; e.g., rule of law,

equality of opportunity, due process,

reasoned argument, representative

government, checks and balances, rights and

responsibilities, and dem ocratic decision -

making.

Cooperation Ï Working together toward goals

as basic as human survival in an

increasingly interdependent world.

Fairness Î Treating people impartially, not

playing favorites, being open - minded, and

maintaining an objective attit ude toward

those whose actions and ideas are different

from our own.

Kindness Ï Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living

things.

Pursuant of Excellence Ï Doing your best

with the talents yo u have, striving toward a

goal, and not giving up.

Respect Ï Showing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three major

forms: respect for oneself, respect fo r

other people, and respect for all forms of

life and the environment.

Responsibility Î Thinking before you act and

being accountable for your actions, paying

attention to others and responding to their

needs. Responsibility emphasizes our

positive oblig ations to care for each other.

* * *

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.

* * *

4. To treat all persons with respect and

strive to be fair in all matters.

* * *

8. To be efficient and effective in the

delivery of job duties.

* * *

V. CONDUCT REGARDING STUDENTS

As set forth in the Principles of

Professional Conduct for the Educat ion

Profession in Florida, each employee:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental or

physical health and/or safety.

* * *

4. Shall not intentionally suppress or

distort subject matter relevant to a

student's academic program.

* * *

6. Shall not intentionally violate or deny

a student's legal rights.

5 0 . These statutes and rules are penal and therefore must

be strictly construed, with ambiguities resolved in favor of the

person charged with violating them . Lester v. Dep ' t of Prof ' l &

Occ. Reg. , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

5 1 . W hether Respondent committed the charged offenses is a

question of ultimate fact to be decided by the trier of fact in

the context of each alleged violation. McKinney v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653

So. 2d 489, 491 (Fla. 1st DCA 1995).

5 2 . Petitioner bears the burden to prove each element of

each charged offense by a preponderance of the 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 Lake Cnty. , 569 So. 2d

883 (Fla. 3d DCA 1990).

5 3 . As addressed above, the preponderance of the evidence

demonstrates that Respondent committed the acts charged in the

Notice of Specific Charges, and that such acts constitute

misconduct in office that is so serious as to impair her

effectiveness in the school system.

5 4 . Accordingly, just cause exists , pursuant to section

1012.33, to terminate Respondent from her position as a teacher

with the District.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that Peti tioner, Miami - Dade

County School Board , enter a Final Order terminating the

employment of Respondent, Walita McBride, as a teacher with

Miami - Dade County Public Schools.

DONE AND ENTERED this 31st day of July , 2012, in

Tallahassee, Leon County, Florida.

S

__________________________________

CATHY M. SELLERS

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 31st day of July , 2012.

ENDNOTES

1 / See Fla. Admin Code. R. 6A - 6.03028 .

2 / Ten ESE students were assigned to Respondent.

3 / The District is the LEA for purposes of the IDEA. As the

primary entity required to develop individualized educational

programs for each disabled child in a particular locality, LEAs

are at the center of the provision of IDEA. The local education

agency representative is the school's representative to th e

District.

4 / Pursuant to Florida Administrative Code Rule 6A - 6.03028(3)(c),

the IEP team participants must include the parents of the

student; not less than one regular education teacher of the

student as applicable; not less than one special educati on

teacher of the student; a representative of the school district

who is qualified to provide or supervise the provision of

specially designed instruction to meet the unique needs of

students with disabilities, is knowledgeable about the general

curriculu m, and is knowledgeable about the availability

5 / This is because the IEP is a collaborative product that

reflects input of IEP team members acting in their respective

roles. Team members' signatures are required to substantiate

the legitimacy of the IEP and to comply with state and federal

law.

6 / Hard copies of the IEPs for each student also are kept in

cumulative folders in the school office at Olinda. The

cumulative folders are stored in a file cabinet, and the school

secretary has the key. It is protocol for anyone taking a

cumulative folder out of the file to sign for the folder.

7 / The student cumulative folders are stored in a file cabinet in

the school's office. The school's Registrar, Margie Gaitor, was

responsible for overseeing the security of the cumulative

folders. The credible evidence established that the file

cabinet in which the cumulative folders are stored is located in

or near the teachers' mailroom, an area accessible to the

teachers, school administrators, and school non - instructional

personnel. The file cabinet usuall y, but not always, is locked.

Persons checking out a student's cumulative folder from the file

cabinet contact Ms. Gaitor, who provides them a sign - out sheet

that they are required to sign, listing the name of the student

whose folder is being checked ou t, the name of the person

checking out the folder, and the date on which the folder was

checked out.

8 / In the signature appearing on the Final IEP Mosley's first

name was incorrectly spelled, and Mosley credibly testified that

the signature was not he rs.

9 / In this case, the circumstantial evidence establishes that

Respondent falsified or forged the signatures on the IEPs.

Under Florida law, forgery may be established by circumstantial

evidence. See J.N.W. v. State , 361 So. 2d 826 (Fla. 1 st DCA

1978). In this case, both parties attempted to introduce lay

testimony comparing the signatures of persons, other than the

witness himself or herself, to establish whether the signatures

were genuine. That testimony was excluded. In Florida, it is

well - established that in the absence of testimony by expert

witnesses in handwriting, the trier of fact is not qualified to

make ÏÏ and, therefore, as a matter of law, cannot make ÏÏ

comparisons of handwriting. Huff v. State , 437 So. 2d 1087

(Fla. 1983); Clar k v. State , 114 So. 2d 197 (Fla. 1 st DCA 1959).

10 / Respondent's actions alleged to constitute just cause for

termination of her employment took place between October 2010

and March 2011. Accordingly, Florida Statutes 2010 apply to

this case.

11 / Petit ioner cites rule 6B - 4.009 as defining "misconduct in

office." However, the text of rule 6B - 4.009 recently was

transferred to rule 6A - 5.056, which now codifies the criteria or

suspension and dismissal of instructional personnel, including

"misconduct in of fice." Of further note is that in July 2012,

after the text of rule 6B - 4.009 was transferred to rule 6A -

5.056, the rule was extensively amended; that amendment does not

apply to this case because it became effective after the conduct

in this case is alleg ed to have occurred. See § 120.54(1)(f),

Fla. Stat.

COPIES FURNISHED

Christopher J. La Piano, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

[e-mail]

Randy A. Fleischer, Esquire

Randy A. Fleischer, P.A.

8258 State Road 84

Davie, Florida 33324

[e-mail]

Gerard Robinson, Commissioner

Department of Education

Suite 1514

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Coun sel

Department of Education

Suite 1244

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Al berto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

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.