13-003418TTS Miami-Dade County School Board vs. Rose Davidson Status: Closed Recommended Order on Friday, May 30, 2014.

Summary: School Board failed to prove that teacher cheated in preparing and/or administering evaluation assessments to her class. Her employment should be reinstated with back pay and benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 3418TTS

ROSE DAVIDSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal ad ministrative hearing was

conducted by video teleconference on February 7, 2014 , between

sites in Miami and Tallahassee, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Pet itioner: Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herd man and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Rose Davidson (Respondent) committed the acts

alleged in the Miam i - Dade County School Board's (School Board)

Notice of Specific Charges and, if so, the discipline that should

be imposed against Respondent's employment.

PRELIMINARY STATEMENT

At the times relevant to this proceeding , Respondent taught

second grade at Erne st R. Graham K - 8 Center (Graham Center).

At its regularly scheduled meeting on September 3, 2013, the

School Board took action to suspend Respondent's employment

without pay and institute this proceeding to terminate her

employment. Respondent timely ch allenged the School Board's

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

followed.

On November 15, 2013, the School Board filed with DOAH its

Notice of Specific Charges. The Notice of Specific Charges

alleged certain facts, and, based on those facts, alleged in

three separate counts that Respondent was guilty of (I)

misconduct in office, (II) violating School Board Policy 3210

(Standards of Ethical Conduct), and (III) violating School Board

Policy 3210.01 (Code of Ethics).

The gravamen of the Notice of Specific Charges is that

Respondent improperly assisted her students in preparing for the

Stanford Achievement Test (SAT) and that she inflated and

manipulated the scoring of a rea ding assessment test known as

F AIR (Florida Assessments for Instruction in Reading).

Prior to the formal hearing, the parties filed a Pre - Hearing

Stipulation, which contained certain stipulated facts. Those

stipulated facts have been incorporated by the undersigned as

findings of fact to the extent those facts are deemed relevant.

At the final hearing, the School Board presented the

testimony of Myra Alfaro (Graham Center principal), Karen Belusic

(Graham Center assistant principal), Respondent, Dr. Sally Shay

(district director for the Office of Assess ment Research and Data

Analysis), Alvin Martin (school police officer), Eileen Gross

(Graham Center teacher), and Rosa Sanchez (Graham Center reading

coach). Petitioner's pre - marked Exhibits 1 - 19, 33 - 34, and 38 - 42

were admitted into evidence.

Respondent t estified on her own behalf and presented the

additional testimony of Tangle Butterfield (Lakeview Elementary

School teacher) and Sharon Moyd (Lakeview Elementary School

teacher). Respondent's pre - marked Exhibits 1 - 9 were admitted

into evidence.

A Transc ript of the proceedings, consisting of one volume,

was filed on April 21, 2014. The deadline for the filing of

p roposed r ecommended o rders was extended on the unopposed motion

filed by the School Board. Thereafter, each party timely filed a

Proposed Reco mmended Order, which has been duly considered by the

undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2013), and all references to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDING S OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

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

2. At the times r elevant to this proceeding, Respondent was

employed pursuant to a professional services contract as a second

grade teacher at Graham Center, which is a public school in

Miami - Dade County. RespondentÓs employment is governed by the

collective bargaining ag reement between the School Board and the

United Teachers of Dade, the rules and regulations of the School

Board, and Florida law.

3. Respondent has been employed by the School Board since

1990. She spent the first ten years of her career teaching

element ary students at Westview Elementary. She next taught high

school for approximately 15 years. She was thereafter

transferred to Graham Center in the 2011 - 2012 school year where

she taught second grade for that school year and the 2012 - 2013

school year.

SAT

4. During the spring of every school year, all Miami - Dade

County public school students in kindergarten, first grade, and

second grade take the SAT to assess each studentÓs reading

comprehension and mathematics problem - solving skills. During the

2012 - 2013 school year , the reading portion of the SAT was

administered on April 9, 2013, and the math portion was

administered the following day.

5. The SAT is a norm - referenced standardized assessment

used nationwide to gauge student achievement. The a ssessment

provides a means to compare a studentÓs achievement with peers

across the country. The assessment also provides a means to

determine a studentÓs needs, and can serve as a tool in

developing strategies to assist the student. The SAT can be

admin istered only once per school year.

6. During the 2011 - 2012 and 2012 - 2013 school years, all of

the kindergarten, first grade, and second grade students at

Graham Center took the SAT.

7. During the 2011 - 2012 school year , Respondent served as a

proctor for the administration of the SAT to a class, but she was

not the administrator of the SAT.

8. For the 2012 - 2013 school year, Respondent served as the

administrator of the SAT to her class.

9. In preparation for the upcoming administration of the

SAT, Karen Belusic, Graham CenterÓs assistant principal,

conducted a training session on March 14, 2013, for all the

second grade teachers at Graham Center on how to properly

administer the SAT. Respondent attended the March 14 training

session. The training informed the teachers about the procedures

for administering the test, test security, and how to handle test

materials. Ms. Belusic instructed the teachers not to look at

test items, review test items, or assist students with test

items. Teachers were to ld to report any testing irregularities.

10. In preparation for the administration of the annual

SAT, during the first week of March 2013, School Board staff

provided all public elementary schools with a n SAT practice test

to familiarize students with t he format of the test. Respondent

and the other second grade teachers at Graham Center received the

practice test during the March 14 training session. The cover

sheet of the practice test provided by School Board staff

reflects that it is a " Practice Te st Booklet " for the SAT.

11. In addition to the practice test provided by School

Board staff, Eileen Gross, the grade chair for second grade at

Graham Center, provided all second grade teachers a variety of

practice booklets on a weekly basis beginning ju st prior to the

week of February 16, 2013, and ending just before the week of

March 25, 2013. Ms. Gross also distributed three reading

simulations and three math simulations to the second grade

teachers.

12. Respondent considered the practice test she r eceived

from School Board staff and the materials she received from

Ms. Gross to be basic.

13. Sharon Moyd is a fourth grade teacher at Lakeview

Elementary School (Lakeview), which is a public school in

Miami - Dade County. Respondent and Ms. Moyd are longtime friends.

Well before the administration of the SAT, Respondent asked

Ms. Moyd if she had any materials that would help her class

prepare for second grade. Ms. Moyd asked several second grade

teachers at Lakeview if they had any materials that m ight help

her friend.

14. Tangle Butterfield, a Lakeview second grade teacher,

gave Ms. Moyd what Ms. Butterfield understood to be a practice

SAT test. That practice test was admitted into evidence as

PetitionerÓs E xhibit 5 and will, for ease of refere nce , be

referred to as Exhibit 5. Ms. Butterfield had received Exhibit 5

from a reading coach during a Saturday workshop in 2011.

Ms. Butterfield and at least one other Lakeview teacher had

utilized Exhibit 5 in preparing students for the SAT. The cove r

sheet of Exhibit 5 reflects that it is a " Practice Test Booklet "

for the SAT, and is almost identical to the cover sheet of the

practice test provided by the School Board staff.

15. Ms. Butterfield put Exhibit 5 in a manila envelope and

gave it to Ms. M oyd. Ms. Moyd put the envelope in the trunk of

her car without reviewing the contents of Exhibit 5, where it

remained for several weeks.

16. In mid - March 2013, Ms. Moyd informed Respondent that

she had something for Respondent. They arranged a mutuall y

convenient place to meet (in a parking lot) where Ms. Moyd gave

the envelope and its content to Respondent. Ms. Moyd never

reviewed the contents of Exhibit 5.

17. Spring break was the week prior to the administration

of the 2013 SAT. On the last Sunda y of that week, Respondent

" glanced over " Exhibit 5 because she wanted the school secretary

to make copies of the material when school resumed the next

morning.

18. The next morning, Respondent took Exhibit 5 to the

office at Graham Center and had a sec retary make enough copies

for her students. Respondent then distributed the copies to her

students for them to take home and study.

19. There was an allegation that Respondent told her

students not to tell anyone about Exhibit 5. The greater weight

of the credible evidence fails to establish that allegation.

20. Respondent gave out Exhibit 5 to her class and told the

students that she would give them homework credit for taking the

practice test. The next day, Tuesday, April 9, 2013, Respondent

colle cted the practice tests from the students and administered

the reading section of the SAT to her class. That same day, when

her students were out of the class at physical education and

music, Respondent graded the practice tests that had been

completed by her students, including the math section.

Respondent marked the correct and incorrect answers. Respondent

returned the graded booklet s with the corrected answers for them

to study prior to the next dayÓs administration of the math

portion of the SAT.

2 1. The math portion of the SAT is designed for the

administrator to read the question to the class and for the

student to answer the question as read. The SAT booklet s that

the students complete during the actual administration of the

math portion of the SAT contains only multiple choice answers.

They do not contain the corresponding questions.

22. The math portion of Exhibit 5 contains multiple choice

answers for the students, but it does not have the corresponding

questions in the same part of the b ooklet as the multiple choice

answers. The last part of the math portion of Exhibit 5 includes

instructions to the administrator of the test. Those

instructions contain the questions the administrator is to read

to the students. 1/

23. Rosa Sanc hez, a reading coach at Graham Center, served

as a proctor for the SAT administered by Respondent on April 9

and 10, 2013.

24. On April 10 Ms. Sanchez observed a male student (K.R .)

who kept dropping his pencil. Ms. Sanchez gravitated towards

K.R. to m ake sure he was not disturbing other students. As

Ms. Sanchez stood next to K.R. she looked at his test booklet and

noticed that he had answered a question that Respondent had not

yet read to the class.

25. The answer K.R. chose involved a chart, whic h took up

most of the page. The studentÓs test booklet did not contain the

question. Before the students could answer the question, the

test administrator was supposed to read instructions about where

to start on the chart and how to move along the chart .

26. Ms. Sanchez told K.R. that he needed to stop working

ahead because he had not yet heard the instructions from the

teacher. K.R. told M s. Sanchez that he remembered the question

from the test booklet. Ms. Sanchez then raised her hand to

Responden t, who was at the front of the class, to indicate that

Respondent needed to stop the test. Instead of stopping,

Respondent looked at K.R. and stated , " K. stop saying crazy

things and pay attention. " Ms. Sanchez immediately looked around

and observed that other students appeared to be answering

questions Respondent had not asked.

27. At the conclusion of the SAT, Ms. Sanchez reported what

she believed to be an irregularity to Ms. Belusic, the assistant

principal who served as the SAT chairperson for Gra ham Center.

Together they informed Ms . Alfaro, the principal.

28. Ms. Alfaro went to RespondentÓs classroom and asked her

for all copies of Exhibit 5. Respondent opened a locked cabinet,

retrieved the material, and handed the material to Ms. Alfaro.

Wh en asked, Respondent told Ms. Alfaro that she had gotten the

material from a teacher at Lakeview named Sharon.

29. Ms. Alfaro compared Exhibit 5 to the actual SAT test.

Many of the same questions and answers contained in Exhibit 5

were identical to quest ions on the actual SAT test.

30. Upon further investigation, Dr. Sally Shay, the

District Director of the Office of Assessment Research and Data

Analysis, compared Exhibit 5 and the actual SAT test. On the

reading portion, Exhibit 5 contained 30 questi ons and answers

while the actual SAT contained 40 questions and answers. The

questions and answers on the reading portion of Exhibit 5 were

identical to 30 of the questions and answers on the real SAT.

For the math portion, Exhibit 5 contained 30 questio ns and

answers while the actual SAT contained 44 questions and answers.

The questions and answers on the math portion of Exhibit 5 were

identical to 30 of the questions and answers on the real SAT.

31. All of the SAT scores for RespondentÓs student s were

invalidated.

32. Petitioner failed to establish that Respondent knew or

should have known that Exhibit 5 contained actual SAT questions.

33. Petitioner asserts that Respondent used actual SAT

questions and answers to prepare her students so thei r higher

scores would qualify her for a performance bonus of approximately

$350.00 . That theory is improbable , and it is not supported by

the evidence.

FAIR

34. The FAIR assessment is a state - mandated assessment test

to evaluate a studentÓs reading abili ty. Second graders take the

FAIR assessment three times during a school year. There is a

section of the ass essment that deals with student s spelling words

on paper that are said by the teacher. In addition, there is a

part of the test that involves the use of a computer, with the

student reading the question from a booklet and giving the

teacher his or her answer. The student sits next to the teacher,

who inputs into the computer whether the studentÓs answer was

correct. There is a script that informs the teacher whether a

particular answer is acceptable.

35. Toward the end of the 2012 - 2013 school year, after the

SAT scores for RespondentÓs students were invalidated, Ms. Alfaro

examined the scores of RespondentÓs students on the FAIR

assessments for the school year 2012 - 2013. By that time

Respondent had administered the FAIR assessment to her students

for all three periods. For the first period assessment, towards

the beginning of the school year, RespondentÓs studentsÓ scores

ranged from 14% to 99% . For the second period assessment,

towards the middle of the school year, the scores ranged from 92%

to 99%. 2/ For the third assessment, toward the end of the school

year, one student scored 73%, but the other students ranged

between 92% and 98%.

36. M s. Alfaro considered the scores for the last two

periods to be too high, and had Ivette Padron - Rojas, a Curriculum

Specialist, re - assess Respondent's class for the third assessment

period. The re - assessment resulted in substantially lower scores

for most of RespondentÓs students.

37. Petitioner offers its theories for the discrepancies in

scoring in paragraph 27 of the Notice of Specific Charges, which

alleges in part that " tests administered by Respondent were

misleading and erroneous, and that Respond entÓs scores were

inflated and manipulated, in part due to Respondent providing

students with the actual spelling words to study and practice

prior to taking the assessment. "

38. The School Board established that studentsÓ test scores

for assessment perio d three were substantially higher when

Respondent administered the assessment than they were when

Ms. Padron - Rojas administered the assessment. However,

Petitioner failed to prove its allegation that Respondent

provided the students with the actual spell ing words to study

before the students took the assessment, and there was no other

evidence to establish that RespondentÓs administration of the

assessment was " misleading, " " erroneous, " " inflated, " or

" manipulated. "

40. The School Board failed to prove that Respondent acted

inappropriately regarding the FAIR assessments.

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120.57(1).

42 . Because Petitioner seeks to termin ate Respondent's

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

certification, Petitioner has the burden of proving the

allegations in its Notice of Specific Charges by a preponderance

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

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

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

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

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

43 . The preponderance of the evidence standard requires

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

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

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

Lyons , 763 So. 2d 27 6, 289 n.1 (Fla. 2000)(relying on American

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

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

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

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

violating School Board Policy 3210 (Standards of Ethical

Conduct), and (III) violating School Board Policy 3210.01 (Code

of Ethics).

45. Petitioner failed to prove the facts that underpin the

violations alleged in the Notice of Specific Charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

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

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

Fact and Conclusions of Law cont ained in this Recommended Order.

It is FURTHER RECOMMENDED that the final order dismiss the

charges against Rose Davidson set forth in the Notice of Specific

Charges. It is FURTHER RECOMMENDED that the employment of Rose

Davidson be reinstated with full back pay and benefits.

DONE AND ENTERED this 30 th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 30 th day of May , 2014 .

ENDNOTE S

1/ These instructions are found in Scho ol Board E xhibit 5,

beginning at Bates stamp page 76.

2/ Ms. Sanchez, the reading coach, reviewed the FAIR scores for

RespondentÓs students for assessment period two and was not

concerned the scores were too high because she had spent some 21

days in Res pondentÓs class and had observed Respondent teaching

the students.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 , North

Clearwater, Florida 33761

Heather L. Ward, Esquire

Miami - Dade County Pub lic Schools

1450 Northeast Seco nd Avenue

Miami, Florida 33132

Alberto Carvalho, Superintendent

Miami - Dade County Public Schools

1450 Northeast Second Avenue

Miami, Florida 33132

Matthew Carson, General Counsel

Department of Education

Turlington Buildin g, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399

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 Or der should be filed with the agency that

will issue the Final Order in this case.