13-003340 Citrus County School Board vs. Beth Stone Status: Closed Recommended Order on Wednesday, January 22, 2014.

Summary: Petitioner proved by a preponderance of the evidence that Respondent was guilty of misconduct in office, but not other charges. Recommend suspension rather than termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITRUS COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 3340

BETH STONE ,

Respondent .

/

R ECOMMENDED ORDER

On November 6, 2013, a duly - noticed hearing was held in

Inverness, Florida, before Suzanne Van Wyk, an administrative

law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Wesley Bradshaw, Esquire

Bradshaw and Mountjoy, P. A.

209 Courthouse Square

Inverness, Florida 34450

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S . Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent's employment as a teacher by the Citrus

County School Board should be suspended or terminated for the

reasons specified in the letter of n o tification of suspension

and termination dated June 17, 2013.

PRELIMINARY STATEMENT

Petitioner sent Respondent a letter of notification of

suspension without pay and initiation of dismissal proceedings

dated June 17, 2013, advising her of the allege d grounds for

termination and of her right to an administrative hearing. In a

letter dated June 20, 2013, Respondent , through counsel,

requested an administrative hearing. The matter was referred to

the Division of Administrative Hearings (DOAH ) for the

a ssignment of an administrative law judge on September 13, 2013.

The case was scheduled for final hearing on November 6, 2013,

and commenced as scheduled.

The parties stipulated to certain facts, which were

accepted at hearing, and are included among those set out below.

The parties stipulated to the introduction of PetitionerÓs

Exhibits 1 through 12, which were admitted into evidence.

Petitioner presented the testimony of five witnesses.

Respondent testified on her own behalf. The parties stipulat ed

to the introduction of the dep osition transcripts of students

E.B., K.K., and F.F.

The one - volume Transcript of the hearing was filed with

DOAH on November 21, 2013. The undersigned granted the parties Ó

Stipulated Motion for Extension of Time to f ile proposed

recommended orders. Both parties timely filed Proposed

Recommended Orders on December 6, 2013, which were considered in

preparat ion of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Citrus County School Board (School Board or

District ), is the entity authorized to conduct public educa tion

in Citrus County, Florida.

2 . Respondent is employed as an instruct or by the School

Board pursuant to a professional services contract. She has

taught third grade at Crystal River Prima ry School (the School)

for seven years. Respondent previously taught in Marion County

schools, and has taught school for a total of 22 years.

3 . Respondent is active in her community, serving as the

choir director at her church and teaching Vacation Bible School.

Respondent is also a member of the American Regional auxiliary.

STAR Testing

4 . The District administers a number of standardized tests

to elementary school students. Second - and third - grade students

are administered a STAR test four times during the school year.

The STAR test is an assessment tool to gauge student growth in

reading. 1/

5 . The STAR test is given to students at the beginning of

the school year (Ðthe first testÑ) , and at the end of the school

year (Ðthe last testÑ ) . The results of these two tests are

compared to measure the studentsÓ growth in reading.

6 . Student growth in reading is achieved when a studentÓs

last test score is at least one point higher than his or her

first test score. 2/ Alternatively, if a studentÓs first test

score is above the mean for the entire grade, growth is

achieved, even if the last test score is lower than the first

test score, as long as the last test score remains above the

mean.

7 . The STAR test is also given two additio nal times during

the school year to monitor student progress. The scores on

these ÐinterimÑ tests do not factor into a determination of a

studentÓs reading growth for the school year.

8 . School policy institut ed in the 2011 - 2012 school year

requires both the first and last administrations of STAR to be

conducted in the schoolÓs computer lab under strict guidelines.

The tests must be proctored. Both the teacher and the proctor

must sign a Test Administration Agreement (Agreement) in which

they agree not to engage in activities which may threaten the

integrity of the test, such as explaining or reading passages

for students, and changing or otherwise interfering with student

responses to test items. The Agreement also binds the teacher

and the procto r to follow test protocols, including testing only

during the designated testing window s for the first and last

tests.

9 . The District also requires the teacher to read a

specific script to students prior to beginning the test. The

teacher is prohib ited from answering questions from students

after the test begins.

10 . The ÐinterimÑ tests are not proctored, but are

administere d in the schoolÓs computer lab.

11 . Second - and t hird - grade students do not take the

Florida Comprehensive Assessme nt Test (FCAT). One reason for

administering STAR under strict guidelines is to prepare these

students for the FCAT testing environment. While a student may

not be retained in third grade for failing a STAR test, that

student may be retained in fourth gr ade for not passing the

FCAT.

12 . The record ev idence conflicted as to whether 2012 - 2013

S chool policy prohibit ed teachers from administering the STAR

test outside of the computer lab under any circumstances .

During both the 2011 - 2012 and 2012 - 2013 school years, the STAR

program was available to teachers on computers in their

classrooms. Respondent testified that she and other teachers

had given the STAR test in their classrooms.

13 . Valerie Komara, who runs the schoolÓs computer lab,

testifie d first that teachers had access to and did give STAR

tests in their classrooms prior to the 2012 - 2013 school year:

Q. And the Star test, was that Î - to your

knowledge was the Star test ever given

outside of the lab, even on the progress

test?

A. Not th is past year, no. No, it has not

been.

Q. Meaning, do teachers Î - to the best of

your knowledge do teachers give the Star

test in the classroom at any point in time?

A. Previous to this year, to the year that

weÓre talking?

Q. Yes.

A. I know that it was on their computers,

yes, sir. It was available to them. [3/]

14 . When the undersign ed asked for clarification,

Ms. Komara testified that teachers Ðwere not to test in their

roomÑ during either the 2011 - 2012 or 2012 - 2013 school years. 4/

1 5 . Ms. KomaraÓs testimony is not competent substantial

ev idence on which to find that 2012 - 2013 School policy

prohibited teachers from administering the STAR test in the

classroom under any circumstances .

16 . Virginia George, the Teacher on Special Assignment

(TOSA) in charge of test administration for the school,

testified , Ðwe do all our testing in our test tech labs.Ñ 5/

However, Ms. George was not aware , until after the events of

May 1 and 2, 2013, that STAR was available to teachers on

computers in their classrooms. 6/ Thus, Ms. GeorgeÓs testimony as

to whether School policy prohibited teachers from giving the

STAR test in their classrooms prior to May 1 and 2, 2013, is not

reliable.

17 . Implementation of STAR has evolved since the 2011 - 201 2

school year. Thus, School policy has been somewhat fluid.

18 . In 2011 - 2012, the School did not administer the first

test until October. In subsequent years, the first test has

been administered during a narrow test window in l ate August and

early September.

19 . During both the 2011 - 2012 and 2012 - 2013 school years,

STAR was available to, and utilized by, teachers in their

classrooms. Following the 2012 - 2013 school year, the School

removed STAR from computers in teachersÓ classrooms.

20 . During both the 2011 - 2012 and 2012 - 2013 school years,

STAR was administered to students four times during the school

year. Currently, the District administers STAR only twice

during the school year -- fall and spring.

21 . From the totality of the evidence, the undersigned

finds that 2012 - 2013 School policy did not prohibit teachers

from administering STAR to students in their classrooms in

addition to the four STAR tests administered in the computer

lab.

STAR Factor in Teacher Evaluations

22 . Beginning with the 2011 - 2012 school year, the District

began using studentsÓ reading growth, based on STAR test

results, as a factor in their teachersÓ evaluations.

23 . Fifty percent of third - grade tea chersÓ evaluations is

based on their student sÓ reading gains for the given school

year. If 80 percent of the students achieve growth, the teacher

may be rated either ÐeffectiveÑ or Ðhighly effectiveÑ on the

Student Learning Growth/Performance Data portion (Student

Learning Growth) of the evaluation . If less than 80 percent of

the students achieve growth, the teacher may receive a Ðneeds

improvementÑ or ÐunsatisfactoryÑ rating. 7/

24 . The second portion of the evaluation is the

Professional Standards portion, in which a school administrator

(i. e., principal or assistant principal) rates the teacher based

on factors such as the teacherÓs leadership, support of the

District, design and implementation of lesson plans, class work,

and monitoring of student progress, as well as achievement of

goals s tated in his or her professional development plan.

25 . Teachers receive a final rating based on the following

matrix , which combines both the Student Learning Growth portion

and the Professional Standards portion:

Student Learning Growth/Data Portio n

HE E D/NI U

Highly Effective Developing/Nee Unsatisfactory

Effective ds Improvement

HE HE HE/E E E/D/NI

E HE/E E E D/NI

Professional D/NI E D/NI D/NI D/NI

Standards Portion U D/NI D/NI U U

26 . If a teacher receives an "unsatisfactory" on the

Student Learning Growth portion, and a Ðhighly effectiveÑ rating

on the Professional Standards portion, he or she may receive an

overall rating of either "effective" or Ðneeds improvement.Ñ

The school principal has the discretion to assign either rat ing

under that factual scenario.

27 . The School has no discretion in assigning ratings for

the Student Learning Growth portion. The studentsÓ test results

are reported to the District and the District assigns the rating

based solely on the test resu lts.

28 . The importance of STAR testing significantly increased

in 2011 - 2012 when STAR results became a factor in teacher

evaluations. Thus, testing protocols were introduced to protect

the integrity of the first and last tests upon which the

studen tsÓ growth determination is based. Requiring proctors,

signed Agreements, and a limit ed timeframe in which to

administer the first and last test s are measures which ensure

consistent test conditions and comparable results. These

measures likewise ensure fair evaluation of the teachers.

Respondent's Performance Evaluations

29 . For the 2011 - 2012 school year, Respondent received an

"unsatisfactory" on the Student Learning Growth portion of her

evaluation because less than 80 percent of her students ach ieved

reading growth during the school year.

30 . Respondent did not agree with the ÐunsatisfactoryÑ

rating as a fair assessment of her teaching abilities. The

first STAR test for the 2011 - 2012 school year was not given

until October. Respondent not ed on her evaluation that if

growth had been measured from August to May, rather than October

to May, she would have met, if not exceeded, the 80 percent

growth standard.

31 . Respondent received a "highly effective" rating on the

Professional Standar ds portion of the evaluation.

32 . Among the glowing comments noted in the Professional

Standards portion of RespondentÓs 2011 - 2012 evaluation are the

following:

Ms. Stone's care and compassion for her

students and classroom is evident in her

day - to - d ay decision making. She is always

looking for innovative ways to improve

instruction.

Her dedication included an active part in

our school events.

She adapted her learning environment to

accommodate the needs of her students.

33 . Respondent rece ived an overall "effective" rating for

the 2011 - 2012 school year.

34 . No evaluation of Respondent prior to the 2011 - 2012

school year was introduced into evidence. Nor was any evidence

introduced of prior disciplinary action against Respondent by

eit her the School or the District.

35 . For the 2012 - 2013 school year, Respondent was rated

"highly effective" by the principal on the Professional

Standards portion. The Student Learning Growth portion was

dependent on the outcome of her studentsÓ STAR tests.

STAR testing May 1, 2013

36 . On the morning of May 1, 2013, Respondent took her

class to the computer lab for administration of the last STAR

test of the year. This is the test that would determine her

students' reading growth for the year.

37 . Valerie Komara runs the SchoolÓs computer lab, and

proctored the STAR test with Respondent that morning. Both

Respondent and Ms. Komara signed the Agreement and followed all

test protocols. The test was administered without incident.

38 . At the conclusion of the test, Ms. Komara generated a

growth report and handed it to Respondent. A growth report

shows the score of the first and last STAR test for each student

in the class, and the calculated growth.

39 . Following the test, Respon dent took her students to

her classroom. After lunch, the students reported to an

assembly.

40 . From the growth report, Respondent knew that her class

did not achieve the 80 percent growth necessary for her to

receive an "effective" rating on the St udent Learning Growth

portion of her evaluation.

41 . The evidence was insufficient to determine what

percentage of Respondent's students did achieve growth. Of the

16 students in Respondent's class, only 13 took both the first

and last proctored STA R test during the 2012 - 2013 school year. 8/

Of those, only three students achieved at least a one poin t

increase in their STAR score.

42 . The third - grade mean score was not introduced into

evidence. It is impossible to determine how many, if any, of

RespondentÓs students scored above the mean for the third grade

such that growth was achieved despite a gain of less than one

point.

43 . If none of the students' scores was above the mean for

the third grade, only 23 percent achieved growth. Based on the

preponderance of the evidence, the undersigned finds that the

growth percentage for Respondent's class was very low.

44 . Respondent was especially concerned about the scores

of three students, K.K., F.F., and E.B. Each of these student s Ó

fina l test score was either lower than, or the same as, their

first test score, despite progress hav ing been made on interim

tests.

45 . K.K.Ós final score of 3.4 was lower than the 3.7 she

received on the first test, and lower than the 3.6 and 3.9

scores recorded on her successive interim tests.

46 . F.F.Ós final score of 3.6 was the same as her initial

score. F.F. had scored 4.3 and 3.6 on the two interim tests.

47 . E.B.Ós final score of 2.9 was lower than her initial

score of 3.0, and lower than the scores of 3.2 and 3.8 recorded

on her successive interim tests.

48 . Respondent testified, credibly, that she knew each of

these students could do better. Respondent explained her belief

that students are tested so often during the school ye ar that

they Ðburn outÑ by the end of the year and do not perform as

they should.

49 . Respondent pulled students K.K., F.F., and E.B. out of

the assembly and took them to her classroom. Respondent told

the students that they had not scored well on t he STAR test that

morning, that they were going to take it again, and that they

needed to try harder.

50 . Respondent seated the students side - by - side at

computer terminals, logged them into the STAR program in her

classroom, and pr oceeded to administ er the exam.

51 . Respondent seated herself behind E.B., who was seated

between K.K. and F.F.

52 . When the students completed the STAR test, Respondent

dismissed them back to the assembly.

53 . Respondent ran a test record report for each of the

three students to see whether their scores on the test

administered in her classroom that afternoon were higher than

their scores from the test given in the computer lab that

morning. A test record report shows the date on which each STAR

test was taken, as we ll as the corresponding scores.

54 . Respondent was indeed pleased to see that each of the

three student s Ó scores had increased.

55 . Respondent then ran a new growth report for her entire

class and found that these three studentsÓ sc ores from the

morning administration of the test had been replaced with the

scores from the afternoon test.

56 . Respondent testified that she did not expect the

growth score for these students to be replaced by the second

score and it was not her int ent to substitute the scores. She

maintained that her intent was to see how well these three

students could do when they were taking the test seriously and

trying harder. RespondentÓs testimony was sincere and is

accepted as credible.

57 . Having se en the growth report, Respondent knew ÐI

screwed up.Ñ 9/ She was asked why.

58 . Ð[T] esting in Florida is everything,Ñ she responded.

So true.

59 . Respondent panicked. By her own admission, Respondent

lied.

The Cover - Up

60 . Respondent im mediately prepared the following e - mail

message and sent it to Ms. Komara and the principal, Donnie

Brown:

From : Stone, Beth

Sent : Wednesday, May 01, 2013 2:57 PM

To : Brown, Donnie; Komara, Valerie

Subject : puzzled

I was looking at my studentsÓ STAR t est

record and there is an extra with todayÓs

date for 3 students . . . []. While I

certainly like those scores, they are very

different from their scores this morning.

61 . Respondent admits this e - mail was deceitful.

62 . Ms. Brown was at a D istrict meeting off - site and did

not respond to the e - mail.

63 . Ms. Komara received t he e - mail after 3:00 p.m. on

May 1, 2013, and went to Respondent Ós classroom to speak with

her.

64 . Respondent lied to Ms. Komara and told her that

Respondent had misplaced the growth report Ms. Komara had given

Respondent following her studentsÓ testing in the computer lab

that morning. Respondent used this lie to explain why she had

run the second growth report, which allegedly ÐrevealedÑ the

second set of sc ores for these three students. 10/

65 . Ms. Komara was upset because she had signed the

Agreement for the morning test and knew that she was

r esponsible, along with Respondent, for ensuring that test

protocols were followed. Ms. Komara told Respondent she was

going to inform Virginia George, the schoolÓs Testing

Coordinator. Respondent told Ms. Komara not to worry about it.

But, Ms. Komara was very worried.

66 . Ms. Komara left RespondentÓs office to find

Ms. George, who was not in her office. Ms. Komara next tried to

find Ms. Brown, who was likewise unavailable. Ms. Komara

returned to her room at approximately 4:20 p.m. and ran a growth

report for RespondentÓs students. She circled on the report th e

scores from the three student s Ó last test. Then, Ms. Komara ran

a test record on RespondentÓs students, which showed that two

separate tests were given that day to each of the three

students. Ms. Komara then realized that the system reported a

difference in reading growth for these three students .

67 . The following day, May 2, 2013, Respondent went to

Ms. GeorgeÓs office before school started. Respondent informed

Ms. George that the test record for three of her students showed

two STAR tests from May 1, 201 3 . Respondent asked Ms. George if

she could delete the second set of scores.

68 . Ms. George expressed concern over the second set of

scores. While Respondent was still in her office, Ms. George

began looking at the scores from other classes, trying to

determine if a second set of t est results were reported for

students in other classes. Ms. George was concerned about a

flaw in the testing program, a database error, or other system -

wide glitch.

69 . Respondent informed Ms. George that she had brought

the matter to the attention of Ms. Komara as well. Ms. George

asked Respondent to stop by the computer lab on the way to her

classroom and let Ms. Komara know that Ms. George was going to

handle the matter. Respondent left Ms. Komara the following

note on her computer: ÐVal Î Vir ginia is checking into the 2nd

tests. She said not to worry. SheÓll get it taken care of.Ñ

70 . Respondent hoped that Ms. George had the authority to

delete the second set of test scores and that deletion would put

the issue to rest. Respondent was wrong.

71 . Ms. George spent the remainder of the school day

investigating the origins of the second set of scores and

potential system errors. Ms. Komara contacted Jennifer Budden,

who handles the STAR database for the school. Ms. Budden

contacted Matt Biggs, a District employee involved in testing,

to assist in finding out exac tly when the second set of test

scores was posted. Ms. Budden also contacted the software

company directly.

72 . During her inquiry, Ms. George discovered that the

STA R testing program was available in the classrooms. She had

not previously been aware of this. She ran through possible

scenarios in her head Î - did the thr ee students accidentally log

in to the program when they returned to class after testing? Did

anoth er student log on using their passwords? Ms. George

decided that she would have to interview the three students to

get to the bottom of the issue.

73 . At the end of the school day on May 2, 2013 ,

Respondent came to see Ms. George again and inquired whether she

had been able to delete the second set of scores for the three

students. Ms. George explained the investigation she had

undertaken that day, the various scenarios she was imagining,

and her decision that she must interview the three students t he

following day. Respondent immediately offered to interview the

students herself. Ms. George declined, explaining that it was

important that she find out what had happened.

74 . After Ms. George made clear that she was going to

interview the stude nts, Respondent stated, ÐI did it.Ñ

Respondent then explained that she had tested the students again

in the afternoon of the previous day because she knew they could

have done better.

75 . Ms. George then told Respondent they would have to

bring Ms. Brown, the principal, into the issue. Ms. George

asked Respondent whether Responde nt wanted to talk with

Ms. Brown herself or if Ms. George should contact her.

Respondent indicated she would like to speak to Ms. Brown

personally.

76 . That evening M s. George called Ms. Brown, explained

the investigation she had undertaken that day and her concern

that the system was flawed. Ms. George reported that the matter

had been cleared up late in the day by Respondent, who would be

coming to see her the follo wing morning.

77 . On May 3, 2013, prior to the start of school,

Respondent saw Ms. Brown and confessed that she had retested the

students, which explained the second set of scores.

RespondentÓs Intent in Administering the Second Test

78 . The Di strict maintains that Respondent intended to

change the students Ó scores in the STAR system and that she was

motivated by the need to achieve a satisfactory performance on

the Student Learning Growth portion of her 2012 - 2013 evaluation.

The District relie s upon the following alleged facts:

Respondent disagreed with the District rating of

ÐunsatisfactoryÑ on the Student Learning Growth portion of her

2011 - 2012 evaluation; although she had received a Ðhighly

effectiveÑ rating on the Professional Standards p ortion of her

2012 - 2013 evaluation, an ÐunsatisfactoryÑ rating on the District

portion could result in an overall rating of Ðneeds improvementÑ

rather than ÐeffectiveÑ on her 2012 - 2013 evaluation; Respondent

had expressed concern to a fellow third - grade te acher that she

was concerned her class would not achieve 80 percent growth; she

retested the three students in her classroom secretively and

told the students not to tell anyone; she had to have known that

the second set of scores would replace the first o nes on the

growth report; and, of course, that her series of deceitful acts

following the second test were designed to conceal the act of

retesting which she knew to be wrong. These all egations are

discussed in turn.

79 . It is true that Respondent c ould have received an

overall Ðneeds improvementÑ rating on her 2012 - 2013 evaluation.

The same was true for the 2011 - 2012 evaluation, but Respondent

received the Ðeffective rating.Ñ Administration was highly

supportive of Respondent Ós teaching methods an d strategies and

clearly considered her an asset to the school and her students.

RespondentÓs testimony that she was not in fear of receiving a

lower overall rating is accepted as credible.

80 . Moreover, Petitioner did not prove that increasing the

STAR scores for these three students to the ÐgrowthÑ threshold

would have impacted her evaluation at all. Petitioner did not

introduce the third - grade mean STAR score, which is the key to

determine the percentage of RespondentÓs students who attained

grow th. Without that key evidence, the undersigned is left with

the conclusion that only 23 percent of RespondentÓs students

achieved growth. Adding three more students to the growth

column would result in 46 percent growth Î - far short of the 80

percent nee ded to achieve a ÐsatisfactoryÑ rating from the

District. The undersigned finds that Respondent was not

motivated by an unattainable goal of 80 percent growth .

81 . RespondentÓs colleague, Jasmine Welter, testified that

Respondent had expressed to he r on three different occasions

that she was concerned her class would not make the 80 percent

goal. However, Ms. Welter also testified that the conversations

took place on or near the final testing date and that such

conversations among teachers were not unusual as the testing

dates approached. This evidence does not demonstrate that

Respondent was any more concerned about her studentsÓ upcoming

STAR performance than any other third - grade teacher.

82 . Respondent did retes t her students in the classr oom,

rather than the computer lab , and without the stringent

conditions under which the first and last tests are

administered. As previously discussed, there was nothing

inherently wrong in testing students in the classroom, a fact

which was confirmed by the principal , Ms. Brown.

83 . The District failed to prove that Respondent told the

students not to tell anyone about the retest. Of the three

students, one testified that Respondent told them not to tell

anyone about the test. Another testified th at Respondent told

them not to tell anyone that she gave the m lollipops for taking

the test and doing better. The third student did not testify

concerning the matter at all.

84 . Respondent likely did know that the retest scores

would replace the mor ningÓs STAR test scores on a growth report.

However, her testimony that she was not thinking about the

growth report at the time is accepted as credible. RespondentÓs

focus was on her students and the potential to increase their

performance. This is ref lected in the fact that Respondent

first ran a test record report, not a growth report, immediately

after testing them. Respondent was fo cused on the individual

student s Ó achievement, rather than the overall growth percentage

of her class. It was only whe n she ran the growth report that

she realized the morning Ós test scores had been replaced with

the retest scores. Once she realized that, Respondent

immediately took steps, however clumsy and surreptitious, to

remove the second set of scores and reestabli sh the morningÓs

gr owth calculation as the final one to be reported to the

District.

85 . The preponderance of the evidence does not support a

finding that Respondent intended to replace these three

student s Ó STAR test results from the morning test wi th the

r esults from the afternoon test.

Other Issues

86 . The troubling issue with the retesting is the

inescapable conclusion that Respondent assisted at least one of

the students with the test.

8 7 . E.B. is an exceptional education student unde r a 504

plan with a special accommodation for testing. E.B. did not

take the STAR test on the morning of May 1, 2013 , with the rest

of RespondentÓs class, but was given the test in a different

setting. Both K.K. and F.F. testified that Respondent helped

E.B. with the test that afternoon. K.K. testified Respondent

was seated directly behind E.B. and mumbled words to E.B.,

although she could not make out the words. F.F. testified that

Respondent helped E.B. with words on the test, although she

could not h ear specifically what Respondent was saying.

88 . E.B.Ós highest STAR score was a 3.8 , received on one

of the interim tests. E.B.Ós score on the retest was an

unprecedented 6.1 Î - a full 2.3 points higher than her previous

highest score. The evide nce supports a finding that Respondent

assisted E.B. with the test.

8 9 . The evidence raises a question as to whether

Respondent also assisted K.K. with the test. K.K. scored a 4.5

on the afternoon test, six - tenths of a point higher than her

previous high score of 3.9 on one of the interim tests. Both

F.F. and K.K. testified that Respondent did not assist them with

the test. E.B. testified that Respondent helped K.K. and F.F.

with the test, but only by telling them to re - read the questions

they were having difficulty with. The evidence is insufficient

to support a finding that Respondent assisted eit her K.K. or

F.F. with the test.

90 . The District argues that by assisting students with

the test, Respondent violated testing protocols and the

Ag reement she executed on the morning of May 1, 2013. That

argument is not well - taken. Respondent cannot be said to have

violated protocols for a test which was not administered for the

purpose of official scores.

91 . Finally, RespondentÓs deceitful attempt to have the

second set of scores deleted was a clumsy, panicked effort to

undo the mess she had made. It cannot be overlooked that it was

an attempt to correct her error, not perpetuate inaccurate test

results for her own professional gain. It wa s wrong to lie, and

it was wrong to involve so many professional colleagues in her

attempt to have the scores deleted. Respondent should have

known that, given the importance of the test results and the

protocols surrounding the testing, the matter would not be

cleared up by a simple deletion of test scores. While

Respondent is to be commended for bringing the ruse to an end

before the students were hauled in for questioning, the gesture

was too little, too late.

CONCLUSIONS OF LAW

9 2 . DOAH has juri sdiction over the subject matter and

parties in this case, p ursuant to section 1012.33(6) and

sections 120.569 and 120.57(1), Florida Statutes (2013).

Pursuant to section 120.65(11), the School Board has contracted

with DOAH to conduct these hearings.

9 3 . 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 Citrus County, Florida,

under section 1 001.32 .

9 4 . RespondentÓs substantial interests are affected by

suspension and termination of her employment and she has

standing to contest PetitionerÓs action. McIntyre v. Seminole

Cnty. Sch. Bd. , 779 So. 2d 639, 641 (Fla. 5th DCA 2001).

9 5 . Petitioner seeks to terminate Respondent's employment ,

and has the burden of proving the allegations set forth in its

Suspension and Termination letter by a preponderance of the

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

convincing evidence applicable to the loss of a license or

certifi cation. Cropsey v. Sch. Bd. of Manatee Cnty . , 19 So. 3d

351 (Fla. 2d DCA 2009) rev. denied , 29 So. 3d 1118 (Fla. 2010);

Cisneros v. Sch. Bd. of Miami - Dade Cnty . , 990 So. 2d 1179 (Fla.

3d DCA 2008).

9 6 . Generally, a professional services contract is a

continuous contract which renews automatically. Pursuant to

sections 1012.22(1)(f) and 1012.33(6)(a), Florida Statutes

(2012), 11/ the School Board has the authority to suspend or

terminate employees under a professional services contrac t for

just cause. Section 1012.33(1)(a) provides:

J ust cause includes, but is not limited to,

the following instances as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency . . . gross insubordination,

willful neglect of duty, or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any c rime involving moral turpitude.

9 7 . According to the Charging Letter, Respondent is

charged in this case with immorality, misconduct in office,

gross insubordination , and willful neglect of duty.

9 8 . Whether 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).

9 9 . Sectio n 1001.02(1) grants the State Board of Education

authorit y to adopt rules pursuant to sections 120.536(1) and

120.54 to implement provisions o f law conferring duties upon it.

Immorality

100 . Consistent with this rulemaking authority, the State

Board of Education has defined Ði mmoralityÑ to implement

section 1012.33(1).

101 . Florida Administrative Code R ule 6A - 5.056 defines

ÐImmoralit yÑ as follows:

[C]onduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct that brings the

individual concerned or the education

profession into public disgrace or

disrespect and impairs the individualÓs

service in the community.

10 2 . In order to dismiss Respondent for immoral conduct,

Petitioner must show that Respondent (a) engaged in behavior

Ðinconsistent with the standards of public conscience and good

morals, and (b) that the conduct was sufficiently notorious so

as to [1] disgrace the teaching profession and [2] impair

[RespondentÓs] service in the community.Ñ McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996)(emphasis

in original).

10 3 . In the instant case, Petitioner p resented no evidence

establishing the applicable Ðstandards of public conscience and

good moralsÑ with which RespondentÓs behavior was inconsistent.

Lack of evidence establishing the Ðstandards of public

conscience and good moralsÑ has been the basis for recommending

dismissal of charges of immorality. See Miami - Dade Cnty. Sch.

Bd. v. Swirsky - Nunez , Case No. 10 - 4143 (Fla. DOAH May 16, 2012;

Miami - Dade Cnty. Sch. Bd. Dec. 19, 2012); Broward Cnty. Sch. Bd.

v. Harris , Case No. 10 - 10094TTS (Fla. DOAH Nov. 23, 2011;

Broward Cnty. Sch. Bd. Feb. 7, 2012); Broward Cnty. Sch. Bd. v.

Deering , Case No. 05 - 2842 (Fla. DOAH July 31, 2006).

10 4 . The undersigned concludes that evidence as to the

particular moral standards need not be introduced . It is

axiomatic tha t, by virtue of their leadership position, teachers

are traditionally held to a high moral standard in the

community. Adams v. ProfÓl Practices Council , 406 So. 2d 1170,

1172 (Fla. 1st DCA 1981). Teachers are expected to be leaders

and role models for st udents. Id .

10 5 . Assisting E.B. with the test in this case was not

immoral. Respondent never intended to substitute the second set

of scores for the official scores which would determine E.B.Ós

reading growth . E.B. was not tested with the class th at morning

and there was no evidence Respondent was aware of the special

accommodations due her. Under the circumstances, the

undersigned cannot find that RespondentÓs action was contrary to

public conscience and morals.

10 6 . Lying to Ms. Komara, Ms . Brown, and Ms. George is a

different matter. Respondent acted contrary to the high moral

standard for teachers when she denied knowledge of the orig in of

the second set of scores.

10 7 . However, it is not enough for RespondentÓs conduct to

have bee n inconsistent with the standards of public conscience

and good morals. It must also be Ðconduct that brings the

individual concerned or the education profession into public

disgrace or disrespect and impairs the individualÓs service in

the community.Ñ F la. Admin. Code R. 6A - 5.056(1).

10 8 . No evidence was introduced to demonstrate that

RespondentÓs actions were ever a subject of public knowledge or

debate, much less an injurious one. The evidence fails to

demonstrate that RespondentÓs misrepresenta tions brought Ðpublic

disgrace or disrespectÑ to Respondent or to the education

community.

10 9 . Additionally, for conduct to constitute immorality it

must also have impaired the teacherÓs service in the community.

McNeill v. Pinellas Cnty . Sch. Bd. , 678 So. 2d 476, 478 (Fla. 2d

DCA 1996)(reversing school board order that conduct constituted

immorality where competent substantial evidence supported ALJÓs

finding that conduct did not impair individualÓs service in the

community). Respondent is clearly involved in the community as

the choir director at her church and a memb er of a civic group.

Petitioner offered no evidence that RespondentÓs service in the

community was impaired due to the misrepresentations she made to

School personnel on May 1 and 2, 2013.

1 10 . Impairment may be established in the absence of

"specific" or "independent" evidence where the conduct engaged

in by the teacher is of such a nature that it "speaks for

itself" in terms of its seriousness and its adverse impact on

the tea cher's service and effectiveness. In such cases, proof

that the teacher engaged in the conduct also constitutes proof

of impaired effectiveness. Abrams v. Seminole Cnty . Sch. Bd. ,

73 So. 3d 285, 295 (Fla. 5th DCA 2011)(while determined on an

individual b asis, impairment may be found as a matt er of law for

some misconduct); Walker v. Highlands Cnty. Sch. Bd. , 752 So. 2d

127 (Fla. 2d DCA 2000)(commotion in class, including intoxicated

student, showed class was out of control such that no evidence

of impaire d effectiveness was necessary, misconduct "spoke for

itself").

1 11 . Petitioner did not cite to any cases parallel to

Abrams and Walker that would permit a finding of impairment of

service as a matter of law in cases involving immorality, though

that would be logically consistent. Cf. McKinney v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 1995)(dearth of record evidence to

support required finding of fact that soliciting medication

impaired service in community).

11 2 . Petitioner offered insuffici ent evidence to show that

RespondentÓs actions impaired her service in the community.

11 3 . Petitioner failed to prove by preponderance of the

evidence that RespondentÓs conduct constituted immorality as

defined in rule 6A - 5.056.

Misconduct in Office

11 4. Consistent with its rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in Florida

Administrative Code R ule 6A - 5.056 (2) , which reads in pertinent

part as follows:

(2) ÒMisconduct in OfficeÓ means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1. 006, F.A.C.

11 5 . Rule 6B - 1.001, renumbered without change as 6A -

10.080, is entitled Code of Ethics of the Education Profession

in Florida, and provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion t o 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 educator's primary professio nal

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.

11 6 . Rule 6B - 1.006, renumbered without change as 6A -

10.081, is titled Principles of Professional Conduct for the

Education Profession in Florida. The School Board first alleges

that Respondent violated sections (3)(a) and (d) of the rule,

which reads as follows:

(3) Obligation to the student requires that

the individu al:

(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 subje ct matter relevant to a

studentÓs academic program.

11 7 . Petitioner presented no evidence that Respondent

failed to protect her students from conditions harmful to

learning or that she endangered the mental or physical health or

safety of her studen ts. There is no record evidence to support

a finding that retestin g students K.K., F.F., and E.B. subjected

them to a harmful learning environment or put them in harmÓs way

mentally or physically.

11 8 . Petitioner did not prove that Respondent

intent ionally distorted subject matter relative to her studentsÓ

academic program. Respondent never intended to change or

inflat e the studentsÓ STAR scores.

119 . Petitioner did not prove by a preponderance of the

evidence that Respondent violated rule 6A - 10.081(3)(a) and (d).

1 20 . Next, Petitioner alleges that Respondent violated

Florida Administrative Code Rule 6A - 10.081(5)(a), which requires

an educator to Ðmaintain honesty in all professional dealings.Ñ

1 21 . Respondent admitted that she lied to both Ms. Brown

and Ms. Komara in her e - mail of May 1, 2013 , titled Ðpuzzled.Ñ

Respondent was not puzzled as to the origin of the second set of

STAR scores for that date. As with most lies, this one required

another. Respondent also lied to Ms. Komar a by representing

that Respondent had lost the first growth report given her that

day to explain why she had generated a second growth report.

Respondent continued the series of lies when she met with

Ms. George the following day to request deletion of th e second

set of scores. Respondent knowingly involved three professional

colleagues in her scheme to cover up the fact that she had

retested the students.

122 . Petitioner proved by a preponderance of the evidence

that Respondent violated rule 6A - 10. 081(5)(a).

12 3 . The same facts support the conclusion that Respondent

violated the more general Professional Code of Ethics provision

in Florida Administrative Code Rule 6A - 10.080(3) which requires

educators to refrain from violating Ðthe respect and confidence

of oneÓs colleagues . . . . Ñ

12 4 . Finally, Petitioner alleges that Respondent violated

Florida Administrative Code Rule 6A - 10.081(5)(h), prohibiting an

educator from submitting Ðfraudulent information on any document

in connection with pr ofessional activities.Ñ In contrast to

rule 6A - 10.081(3)(d), the rule does not hinge on the teacherÓs

intent.

12 5 . By retesting the students, Respondent changed the

growth record report for K.K., F.F., and E.B. Those test

results are the basis on w hich the District assigns ratings on

the Student Learning Growth portion of teacher evaluations.

Once the te st was complete, Respondent submitted the fraudulent

information. However, RespondentÓs punishment for violation of

this rule must be tempered by the fact that, once she became

aware that the final scores upon which these studentsÓ growth

would be measured had been replaced , she immediately attempted

to remove the scores.

126 . Petitioner proved by a preponderance of the evidence

that Responden t violated rule 6A - 10.081(5)(h).

12 7 . Petitioner proved that Respondent violated both the

Professional Code of Ethics and the Principals of Professional

Conduct for the Education Profession in Florida.

12 8 . Petitioner proved by a preponderance of the evidence

that Respondent is guilty of misconduct in office, as defined by

r ule 6A - 5.056(2)(a) and (b).

Gross Insubordination

12 9 . Petitioner next charges Respondent with gross

insubordination, which is defined in Florida Administrative Code

Ru le 6A - 5.056(4) as follows:

[i]ntentional refusal to obey a direct

order, reasonable in nature, and given by

and with proper authority; misfeasance, or

malfeasance as to involve failure to perform

required duties.

1 30 . Petitioner did not prove that 2 012 - 2013 School policy

prohibited teachers from administering STAR tests to students in

their classrooms. RespondentÓs choice to retest her three

students in her classroom during the testing window for the last

proctored exam of the year was foolish and h asty . Based on the

evidence, the undersigned cannot find that it was in violation

of a direct order.

1 31 . Petitioner failed to prove that Respondent is guilty

of gross insubordination as defined in r ule 6A - 5.056(4).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

That the Citrus County School Board enter a final order

finding Beth Stone guilty of misconduct in office, suspend her

employment without pay for a period of 180 school days

retroa ctive to May 24, 2013 , and place her on probation for a

period of one year.

DONE AND ENT ERED this 22nd day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Adm inistrative 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 22nd day of January , 2014 .

ENDNOTES

1/ A companion STAR math test is also administered, but i s not

the subject of this case.

2/ For example, if the first score is a 2.9 and the final scor e

is a 3.9, growth is achieved.

3/ T.51:4 - 15.

4/ T.52:17 .

5/ T.63:21 - 22.

6/ T.68: 15 - 20.

7/ Teachers in their first three years of employment ma y receive

a ÐdevelopingÑ rating rather than Ðneeds improvementÑ if less

than 80 percent of their students achieve reading gains.

8/ The undersigned finds from the evidence that one student l eft

before the last STAR test was administered, and two students

were not enrolled until after the testing window for the first

STAR test had closed.

9/ T.100:14 .

10/ This lie is not logical. A growth report does not reveal

sets of scores. A growth r eport shows the first and last tests

administered, the scores from those tests, and the change or

growth. The test record report shows each test, the d ate taken,

and scores recorded.

11/ References to statutes and rules throughout this Recommended

Order are to versions in effect from September 2012 through June

2013, the period of alleged incidents, except as otherwise

indicated.

COPIES FURNISHED :

R. Wesley Bradshaw, Esquire

Bradshaw and Mountjoy, P.A.

209 Courthouse Square

Inverness, Florida 34450

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Sandra C. Himmel, Superintendent

Citrus County Schools

1007 West Main Street

Inverness, Florida 34450 - 4625

Matthew Carson, General C ounsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Flori da 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 should be filed with the agency that

will issue the Final Order in this case.