14-003005TTS Miami-Dade County School Board vs. Arleen Gomez Status: Closed Recommended Order on Friday, October 30, 2015.

Summary: Petitioner proved, by the preponderance of the evidence, that just cause exists to suspend Respondent without pay and to terminate her employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 3005 TTS

ARLEEN GOMEZ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2013), 1/ before

Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the

Division of Administrative Hearings ("DOAH"), on January 20,

2015, in Miami, Flo rida, and on February 17, 2015, by webcast at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to s uspend

Respondent without pay and terminate her employment as a

teacher.

PRELIMINARY STATEMENT

On or about June 18, 201 4 , Petitioner took action to

suspend Respondent without pay and terminat e her employment as a

teacher. Respondent timely requested an administrative hearing

to challenge Petitioner's proposed action, and the matter was

forwarded to DOAH for assignment of an ALJ to conduct a hearing

pursuant to sections 120.569 and 120.57(1).

On August 26, 2014, Petitioner filed the Notice of Specific

Ch arges in this proceeding, effectively alleging that Respondent

had impermissibly assisted her students on a series of reading

tests, by helping them answer the test questions or chang ing the

students' wrong answers to right answers . Petitioner charged

Respondent with having violated specified Department of

Education rules and School Board of Miami - Dade County policies.

The hear ing initially was scheduled to be conducted by

video telec onference on September 2, 2014; however, p ursuant to

the parties' joi nt motion for continuance , the hearing was

rescheduled for September 24, 2014. Thereafter , the parties

jointly moved the ALJ to conduct an in - person final hearing to

enable her to view exhibits consisting of original test papers

containing erasure marks t hat would not be visible on duplicated

copies of the papers. Accordingly, the final hearing was

rescheduled for November 6, 2014, in Miami, Florida. However,

due to illness of the undersigned , the final hearing was

rescheduled for January 20, 2015. The final hearing commenced

on January 20, 2015, in Miami, Florida, but did not conclude

that day. The continued hearing was conducted by webcast and

concluded on February 17, 2015, at sites in Miami and

Tallahassee, Florida.

In its case - in - chief, Petitioner presented the testimony of

Maria Zabala, Almendra Bodan, Mary Murphy, and Ana Sanchez.

Petitioner's Exhibits 1 through 3, 14 through 1 6, 20 through 22,

24 through 42, 44, 45, 50, 54, 56, 57, and 59 were admitted into

evidence without objection, and Petitioner's Exhibits 13, 19,

23, and 46 were admitted into evidence over objection.

Respondent testified on her own behalf and presented the

testimony of Susan Shugar. Respondent did not proffer any

exhibits for admission into evidence. On rebutta l, Petitioner

presented the testimony of Maria Zabala.

The two - volume T ranscript of the final hearing was filed at

DOAH on June 2 , 2015, and the parties initially were given until

June 12, 2015, to file proposed recommended orders. Pursuant to

Petitione r's motion, the time for filing proposed recommended

orders was extended to July 1, 2015. Respondent's Proposed

Recommended Order was timely filed on July 1, 2015, and

Petitioner's Proposed Recommended Order was filed on July 2,

2015. The undersigned dul y considered both proposed recommended

orders in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a duly - constituted school board charged

with operating, controlling, and supervising all free public

schools within Miami - Dade County , Florida, pursuant to

Article IX, section 4(b), Florida Constitution , and

section 10 01 .3 2 , Florida Statutes.

2. At all times relevant, Respondent was employed with

Petitioner pursuant to a professional services contract as a

teacher at Fienberg / Fisher K - 8 Center ( " Fienberg/Fisher " ) , a

public school in Miami - Dade County, Florida.

3. Respondent has been employed with Peti tioner as a

teacher since 2005. She became employed at Fienberg/Fisher in

the 2009 - 2010 school year , and taught kindergarten for the first

three years . She taught third grade in the 2012 - 2013 and 2013 -

2014 school year s .

4 . At all times relevant, Respondent's employment was

governed by the collective bargaining agreement between Miami -

Dade County Public Schools and the United Teachers of Dade

Contract, Petitioner's rules, and Florida law.

II. Evidence Adduced at Hearing

5. During the 2013 - 2014 school year, Res pondent taught

third grade. B etween 18 and 20 stud ents were assigned to her

class , 12 of which were classified as " English for Speakers of

Other Language s " ( " ESOL " ) students. 2/ Respondent had the largest

number of ESOL students assigned to her classroom for the entire

third grade at Fienberg/Fisher that school year.

A. The Reading Portfolios

6. During the 2013 - 2014 school year, the Florida

Comprehensive Assessment ( " FCAT " ) Test was administered

statewide to third - grade students, including the third - grade

students at Fienberg/Fisher.

7. Students must pass the FCAT to be promoted to fourth

grade. If a student fails to earn the necessary minimum score

of 2 (on a scale of 1 to 5, with 5 being the highest score) on

the reading p ortion of the FCAT, the student is mandatorily

ret ained in third grade unless he or she has successfully

completed a series of reading passages and related tests called

"Reading Portfolios " ( " Portfolios " ).

8 . Each Portfolio is an instructional package consist ing

of a reading passage covering a particular topic , followed by

questions ÏÏ essentially, a test ÏÏ aimed at measuring the student's

reading comprehension for the passage. The tests consist of a

series of multiple choice questions , each having four answer

choices . In taking the test, the student is to select the one

correct answer for each question. 3 /

9 . The reading passages in the Portfolios are administered

as a " cold read, " which mean s that the student sees the passage

for the first time when he or she reads it in order to answer

the test questions associated with that passage.

10 . The Portfolios are administered over a ten - week period

starting in January of the school year. Portfolios are

administered one day per week, with one Portfolio administered

th at day, for a total of ten Portfolios that are administered

to, and completed by , the students . Students may complete two

additional Portfolios if needed .

1 1 . The Portfolio reading passages and questions are keyed

to the reading benchmarks that are tested on the FCAT.

1 2 . A student has three opportunities to demonstrate ,

through completing the Portfolios, that he or she has mastered a

particular reading benchmark.

1 3 . T he Portfolios help prepare the student to take , and

presumably pass, t he reading portion o f the FCAT . T hey also

enabl e a student who does not pass the reading portion of the

FCAT to nonetheless be promoted to fourth grade , provided he or

she is able to demonstrate, through the Portfolio tests, mastery

of the reading benchmarks.

1 4 . A student's scores on the Portfolios serve to alert

the student, his or her parents, and the teacher as to whether

the student is reading at a level sufficient either to pass the

reading portion of the FCAT, or to demonstrate that he or she

should be promoted to the fourth grade in spite of having failed

the reading por tion of the FCAT.

1 5 . Therefore , it is vitally important that a student's

Portfolio scores accurately reflect the student's actual

performance on the Portfolios. To that point, it w ould be v ery

harmful to a student if he or she received scores on the

P ortfolios indicat ing that he or she could read at a level

sufficient to either to pass the FCAT or otherwise be promoted ,

when , in fact, that was not the case.

1 6 . Third grade teachers at Fienberg/Fisher are trained to

correctly administer the Portfolios. As part of the ir training,

all teachers sign a security form . In doing so, the teacher

acknowledg es that the Portfolios are secure tests , that he or

she may not share secure information with the students, and that

he or she may not take any action that would cause the Portfolio

results to be misinterpreted or scored in a way that do es not

accurate ly reflect student performance.

1 7 . Respondent attended the training session for the 2013 -

2014 school year 4/ and signed the sec urity form acknowledging

that she was informed regarding the secure administration of the

2014 Portfolios .

1 8 . In administering the Portfolios, the teacher

distributes the particular Portfolio assigned for that day to

the students. The Portfolio is not timed, so the student s may

take as much time as needed to read the assigned passage and

complete the test questions.

1 9 . When the Portfolio is administered, translation

dictionaries are distributed to the ESOL students who need them

to read the passages and complete the test questions. 5 /

20 . M ost of Respondent's students were ESOL and most of

them used translation dictionaries when reading the 2014

Portfolio passages and taki ng the tests associated with those

passages.

2 1 . When a student finish es a Portfolio, he or she returns

the Portfolio materials, including the completed test questions,

to the teacher.

2 2 . The teacher grades the test and records the student's

score for the test for that particular Portfolio reading passage

on a Score Summary Sheet, which is kept in the individual

student's Portfolio s folder . 6/ T he Score Summary Sheet

identifies the specific benchmarks being tested on each reading

passage and test . When a student's response to a question

constitutes an " acceptable demonstration " that the student has

met the specific benchmark being tested for that particular

Portfolio passage, the teacher checks the Score Summary Sheet

indicating that the benchmar k has been acce ptably demonstrated.

As noted above, the student has three opportunities to

demonstrate mastery of a particular benchmark and , if necessary,

may complete two additional Portfolio passages and tests to

demonstrate benchmark mastery.

2 3 . Once the teacher has scored each student's test for a

particular Portfolio passage and recorded each student's test

score on the student's Score Summary Sheet, the teacher returns

the graded test to the student .

2 4 . The teacher then reviews the reading passage and the

graded test questions with the class , identifying the correct

answer for each question and explaining why that answer is

correct and the other choices are incorrect . The review is

instructional , so is a crucial componen t of the correct

administration of the Portfolios.

2 5 . Following review of the specific Portfolio reading

passage and test with the class , the teacher collects the graded

tests, which are securely stored , along with the other Portfolio

passages and tests, in the student's Portfolio folder.

2 6 . Respondent stored the students' Portfolio s folders in

a locked cabinet or closet in her classroom, so the y were not

readily accessible to others.

2 7 . For the 2013 - 2014 school year at Fienberg/Fisher,

P ortfolios were administered on Thursdays starting in

January 2014 .

2 8 . T he third - grade teachers at Fienberg/Fisher decided ,

as a group, the order in which the specific Portfolios w ould be

administered to the students based on the reading benchmarks

being covered at the time . T he same Portfolio was administered

to all students present in the class on a given day. 7 /

B. Events Triggering Investigation of Portfolios

2 9 . On March 6 , 2014, Respondent notified Maria Zabala,

the p rincipal at Fienberg/Fisher, that due to her father's

illness, she needed to take personal leave.

30 . At the final hearing, Zabala testified , credibly, that

when Respondent requested to take leave, she told Zabala that

she nonetheless needed to be present on Thursday to administer

the Portfolios to her students.

31 . Zabala testified that , initially, she did not

understand why Respondent insisted that she needed to be present

to administer the Portfolios and was under the impression that

Respondent simply wanted to be supportive of her students .

However, Respondent explained that if she wasn't there, the

students would not do well b ecause she needed to help them. A t

that point, Zabala stopped the conversatio n and asked Respondent

to report to her office the following morning to continue the

discussion.

32 . Zabala testified, credibly, that when Resp ondent came

to her office on the morning of March 7, 2014 , she recounted to

Respondent her understanding of their conversation the previous

day , stating " [t]his is what I understood of our conversation

yesterday. I understood that you need to be here for Portfolio

because the students are helped when they're taking Portfolio."

Zabala credibly testified that in response, Respondent " went

back and forth a little, but then settled on " [y]es, I'm there

and I help them, because if not, they won't do well."

3 3 . A t that point, Zabala called Assistant Principal Mary

Murphy to her office and asked Respondent to explain to Murphy

how she administered the Portfolios. Zabala testified ,

credibly, that Respondent also told Murphy that she helped her

students take the Portfolios.

3 4 . Zabala explained to Respondent that the Portfolios are

a secure test and that in order to determine if Respondent's

actions breach ed test security, she was required to report the

matter to Petitioner's investigative unit. Zabala testified

that at that point, Respondent asked what would happen next.

3 5 . Mu rphy corroborated Zabala's version of the discussion

between Zabala, R espondent , and herself . She testified ,

credibly, that when Zabala asked Respondent to repeat, in her

(Murphy's) presence, what she previously had relayed to Zabala ,

Respondent stated that the students could not take the reading

Portfolios i f she wasn't present because they would not score

well , that she needed to be there to ensure they would answer in

the correct way , and that that the Portfolios needed to b e

scored a certain way to e nsure the students passed .

3 6 . Murphy reminded Respondent that changing answers or

helping the students on the Portfolios would misrepresent

student scores and would be very detrimental to the students and

the school.

3 7 . Murphy testified, credibly, that Respondent then

responded that the reading coach, Danielle Klahr, had told her

to help the students take t he Portfolios. 8 /

3 8 . Thereafter, Zabala retrieved the Portfolios from

Respondent's classroom and secu rely stored them in her office.

3 9 . Thereafter, Respondent did not administer the reading

Portfolios to her students, but did continue teaching at

Fienberg/Fisher for the rest of that school year.

40 . Respondent's version of these events differs sharply

from Zabala 's and Murphy 's .

4 1 . Respondent testified that on March 6, 2014, when she

notified Zabala that she needed to take one week of leave due to

her father's illness, Zabala became upset and tried to dissuade

her from taking leave . Respondent characterized Zabala's

response as " like a guilt trip . She basically cried and told

me, you know, that she needed me to be there and how my students

were going to suffer and how I really didn't care about my

students."

4 2 . Respondent testified that at that point, she offered

to com e in on Thursday and administer the Portfolio to her

students . She stated: " I wasn't even thinking about correcting

it. I'm talking about administering it because children need

consistency and they will not be as nervous as they would be if

they had somebody else. So I was doing that as a favor.

However, that was extremely misconstrued."

4 3 . According to Respondent, s h e went to Zabala's office

on the morning of March 7, 2014, for the sole and specific

purpose of requesting two weeks' leave instead of the one week

she originally had requested. She testified : " [t]he only thing

ÏÏ the only conversation that I was thinking on having with

Ms. Zabala that morning was the fact that I got the paper signed

for me to take the week off."

4 4 . Respondent testified that Zabala refused to approve

her request for two weeks' leave and that i n the course of th eir

discussion, Zabala questioned the accuracy of her students'

Portfolio test scores , which she recently had submitted .

According to Respondent, Zabala observed that Respondents'

students previously had failed interim reading tests and other

tests but now " mysteriously " were performing relatively well on

the Portfolios .

4 5 . Respondent testified that Zabala ordered her to bring

the students' Portfolios to her office , and she complied.

4 6 . Respondent testified that in the discussions with

Zabala and Murphy, she had explained that she needed to be

present to administer the Portfolios because " children need

consistency [,] [a] nd them having another teacher in the

Portfolio would be devastating for them."

4 7 . R espondent cla im e d that she had " offer ed , " rather than

requested , to be present to administer the Portfolios , and that

her offer was " misconstrued."

48. Respondent denied having allowed her students to cheat

on the P ortfolios , and she denied having told Zabala and Murphy

that she allowed her students to cheat on the Portfolios.

4 9 . Respondent did not specifically address or deny

Murphy's testimony that she (Respondent) had told Murphy that

the reading coach had told her to assist the students in taking

the Portfolio tests.

C. Petitioner's Investigation

50 . Respondent's students had completed an estimated six

Portfolios by the time Zabala retrieved their Portfolios.

51 . Zabala reviewed the Portfolios to determine whether

Respondent had helped her students cheat on the Portfolios. She

specifically reviewed the students' test papers to determine,

from erasure marks on the tests, " did [the students] go too many

times from wrong answers to right answers."

5 2 . Zabala testified that on sev eral of the students'

Portfolio test papers , there were numerous erasure marks showing

that the student had erased the wrong answer, and that the right

answer had been circled. Zabala interpreted that as indicating

either that Respondent had told the student the right answer s

and allowed them to change wrong answer s to right answer s , or

that Respondent herself had erased the wrong answers and circled

the right answers.

5 3 . Zabala acknowledged that she did not review

Respondent's students' test papers to evaluate the frequency

with which the students changed answers from right to wrong or

from wrong to wrong , and she further acknowledged that she did

not review the Portfolio test papers for any of the other third -

grade classes.

5 4 . Zabala noted that many of Respondent's students' test

papers were gra ded in pencil , rather than pen and asserted that

this was a violation of test protocol because it enabled the

students or Respondent to erase " X " marks placed next to the

wrong answers and to select the right answers. She testified ,

based on her review of Respondent's students' papers, that it

appeared that this had happened.

5 5 . The evidence showed that in several instances,

students' test papers were not graded, but scores for those

tests nonetheless were recorded on the Portfolio Score Summary

S heets kept in the students' folders. Zabala explained that it

is extremely important that the test papers are graded and

returned to the students , because review of the graded tests

enables the students t o learn from their mistakes and,

therefore, be better prepared to take the FCAT.

5 6 . Zabala also testified that in several instances,

students who consistently had performed poorly on previously -

administered standardized tests , including the Stanford

Achievement Test ( " SAT " ) and the second - grade FCAT, had

performed comparatively well on the Portfolio tests that

Respondent administered . She observed that it is uncommon for a

student who previously performed po orly on such tests to perform

well on the Portfolios. The clear import of Zabala's testimony

was that she believed that the students' improved performance on

the Portfolios was due to Respondent having helped the students

or having herself changed wrong a nswers to right answers.

D. Invalidation of Respondent's Students' 2014 Portfolios

5 7 . Following her discussion with Respondent and Murphy on

the morning of March 7, 2015 , Zabala contacted Petitioner's

District office to report the suspected security breach in

Respondent's administration of the 2014 Portfolios.

Petitioner's Civilian Investigative Unit conducted an

investigation of the matter.

5 8 . Ultimately, as a result of the investigation , the

Portfolios that had been completed by Respondents' students to

that point in the school year were invalidated.

5 9 . Because their 2014 Portfolio s were invalidated, the

students were required to complete a nother set of Portfolios.

60 . Invalidating the 2014 Portfolios placed Respondent' s

students , their parents, and the school in a very difficult

position . The students were confused and did not understand why

they were being forced to complete another set of Portfolios.

Many of them wondered if they had done something wrong and were

concerned about being retained in the third grade. The

students' parents, understandably, were distraught that their

children had to complete another set of the Portfolios. The

administration and teaching staff at Fienberg/Fisher were placed

in the difficult circumstance of having to administer ten weeks

of replacement Portfolios in a compressed time frame before the

FCAT was administered in April 2014.

E . Administration of Replacement Portfolios

61 . As replacement for the invalidated 2014 Portfolios,

the students completed Portfolios that previously had

been given to third - grade students in the 2012 - 2013 school year

( " Replacement Portfolios " ) .

6 2 . Because there were only a few weeks remaining between

invalidation of the 2014 Portfolios and administration of the

2014 FCAT, Respondent ' s students were forced to complete more

than one R eplacement Portfolio per week.

6 3 . Susan Shugar , a reading speci alist who administered

the R eplacement Portfolios to Respondent's students, testi fied

that in administering the R eplacement Portfolios, " I was just

there. I did what I was told, and that's it." She testified

that she was not told to distribute translation dictionaries to

the students in Respondent's class, so she did not do so.

Shugar testified: " I think maybe one student had a dictionary

and that's it."

6 4 . M any of Respondent ' s students performed significantly

worse on the R eplacement Portfolios than t hey had performed on

the 2014 Portfolios. Zabala interpreted this as further

evidenc ing that Respondent had assisted her students in taking

the Portfolios , either by giving them the correct answers or

changing the ir incorrect answers.

F. Specific Charges Against Respondent

6 5 . In its Notice of Specific Charges, Petitioner alleges

that Respondent engaged in conduct that helped the stu dents in

taking the Portfolio tests by allowing them to change their

answers fro m wrong to right ÏÏ essentially, that she help her

students cheat on the tests. Petitioner charges that

Respondent 's conduct constitutes misconduct in office under

Florida Administrative Code Rule 6A - 5.056; violat es the Code of

Ethics of the Education Profession in Florida , rule 6A - 10.080;

violates the Principals of Professional Conduct for the

Education Profession in Florida , rule 6A - 10.081 ; violat es the

School Board of Miami - Dade County ( " School Board " ) Standards of

Ethical Conduct, Policy 3210 ; and v iolat es the School Board Code

of Ethics, Policy 3210.01 .

III. Findings of Ultimate Fact

A. Evidentiary Findings

6 6 . Having fully and carefully consider ed the evidentiary

record, it is determined that Petitioner has shown, by a

preponderance of the competent, substantial, and persuasive

evidence, that Respondent did, in fact, did help her students

cheat on the Portfolio tests, and that this conduct constitutes

misconduct under rule 6A - 5.056; violates the Code of Ethics of

the Education Profession in Florida, rule 6A - 10.080; violates

the Principles of Professional for the Education Profession in

Florida, rule 6A - 10.081; and violates School Board Policies 3210

and 3210.10.

6 7 . T he undersigned found Zabala and Murphy to be very

credible witness es , 9 / and found their account of the discussions

that took place on March 6 and 7, 2014, to be far more

persuasive and credible than Respondent's account of those

discussions. 1 0 /

6 8 . As discussed above, t he persuasive evidence

establishes that when Respondent told Zabala that she needed to

be present to administer the Portfolios, Zabala herself

initially thought that Respondent merely meant that she needed

to be present in order to provid e consistency for her students.

However, specifically to ensur e that she did not misinterpret

Respondent's statement, Za bala asked Respondent to clarify , and

that based on Respondent's explanation , Zabala concluded that

Respondent meant that she needed to be present to help the

students get the righ t answers on the Portfolio tests .

6 9 . Murphy precisely corroborated Zabala's version of the

March 7, 2014, discussion with Respondent. Based on Murphy's

discussion with Respondent, Murphy also concluded that

Respondent did indeed admit that she help ed her students get the

right answers on the Portfolio tests.

70 . Given Zabala's and Murphy's precise testimony on this

point , it is difficult to envision that they both " misconstrued "

Respondent's statements, made during three s eparate discussions ,

such that they both incorrectly concluded that Respondent had

effectively admitted that she helped her students get the right

answers when they took the Portfolio tests. Accordingly, t he

un dersigned rejects, as incredible and unpersuasive,

Respondent's claim that Zabala and Murphy " misconstrued " her

March 6 and March 7, 2014, statements .

71 . Murphy's testimony that Respondent told her that the

reading coach had directed her (Respondent) to help the students

take the Portfolio tests was credible and persuasive.

R espondent's attempt to exculpate herself by blaming the reading

coach constitutes a tacit admission that she did, in fact, help

her students cheat on the tests .

7 2 . Based on the foregoing, the undersigned finds that

Respondent effectively admitted that she helped her students

cheat in taking the 2014 Portfolios .

B. Findings Regarding Violation of Rules and Policies

73. Whether Respondent committed the offenses charged in

the Notice of Specific Charges is a question of ultimate fact to

be determined by the trier of fact in the context of each

alleged violation.

a. Misconduct i n Office

7 4 . As noted above, Petitioner has charged Respondent with

misconduct in office under r ule 6A - 5.056(2) . The rule defines

misconduct in office to mean conduct that constitutes one or

more of the following: (a) a violation of the Code of Ethics of

the Education Profession in Florida as adopted in Florida

A d ministrative Code Rule 6B - 1.001 1 1 / ; (b) a violation of the

Principles of Professional Conduct for the Education Profession

in Florida as adopted in r ule 6B - 1. 00 6 1 2 / ; (c) a violation of the

adopted school board rules; (d) behavior that disrupts the

student's learning environment; or (e) be havior that reduces the

teacher's ability or his or her colleagues' ability to

effectively perform duties.

7 5 . Respondent 's conduct in allowing or enabling her

students to cheat on the Portfolio tests violated rule 6B - 1.001,

the Code of Ethics of the Education Profession in Florida. Her

conduct evidences that she does not value the truth and is not

devoted to excellence in her teaching. She failed to exercise

the best professional judgment and integr ity, and her fail ure to

achieve and sustain the highest degree of ethical conduct caused

her to lose the respect and confidence of her colleagues at

Fienberg/Fisher , and, presumably, the parents of the children

who were forced to complete another set of Po rtfolios due to her

conduct. Accordingly, Respondent's conduct constitutes

misconduct in office as provided in rule 6A - 5.056(2)(a).

7 6 . Respondent also violated rule 6B - 1.006, the Principles

of Professional Conduct for the Ed ucation Profession in Flori da.

Respondent's conduct in helping her students cheat on the

Portfolio tests harmed the students by giving them and their

parents the misimpression that the y were more proficient in

read ing than actually was the case. As a result of her actions ,

her stu dents were denied the benefit of learning from their

mistakes on the Portfolios , so that they could be better

prepared to take the FCAT. Respondent failed to maintain

honesty in her professional dealings, and she submitted

fraudulent information on documents in connection with her

professional activities. Accordingly, Respondent's conduct

constitutes misconduct in office as provided in rule 6A -

5.056 (2)(b).

7 7 . Respondent's conduct also violated School Board

Policy 3210. S he failed to conduct herself in a manner that

reflected credit on herself and on the school system, and also

failed to teach efficiently and faithfully by employing approved

met hods of instruction as provided by law and the rules of the

Department of Education. As discussed above, her conduct did

not protect students from conditions harmful to learning ; she

failed to maintain honesty in her professional dealings ; and she

submitt ed fraudulent information on documents in connection with

her professional activities. Accordingly, Respondent's conduct

constitutes misconduct in office as provided in rule 6A -

5.056(2)(c).

7 8 . Respondent's conduct also violated School Board

Policy 32 10.01. S he failed to create an environment of honesty

and integrity and did not aid in providing a high quality

education to her students. As discussed above, her conduct

evidences that she does not value the truth and that she is not

devoted to excellen ce in her teaching. She failed to exercise

the best professional judgment and integrity, and she did not

achieve and sustain the highest degree of ethical conduct. S he

failed to adhere to the fundamental principles of Petitioner's

Code of Ethics because she did not deal truthfully with, or

exhibit respect for her students, their parents, and her

colleagues at Fienberg/Fisher. Further, when it became apparent

that Respondent ha d helped her students cheat so that she may be

subject to discipline, she did n ot accept responsibility for her

actions and instead attempted to blame a colleague . S he failed

to perform her job as a teacher efficiently and effectively and,

as discussed above, failed to protect her students from

conditions harmful to learning. Accordingly, Respondent's

conduct constitutes misconduct in office as provided in rule 6A -

5.056(2)(c).

79. Respondent's conduct disrupted her students' learning

environment. As discussed above, her conduct harm ed her

students by causing or contributing to the misimpression that

they were capable of reading at higher levels than actually was

the case. Further, as a direct result of her conduct, her

students were forced to complete another set of Portfolios under

suboptimal conditions, which may have res ulted in some of them

performing poorly and being retained in the third grade. Thus,

Respondent's conduct constitutes misconduct in office as

provided in rule 6A - 5.056(2)(d).

80. Respondent's conduct unquestionably reduced her and

her colleagues' abilit y to effectively perform their teaching

duties. As a direct result of her conduct in administering the

2014 Portfolios, she was relieved of that duty and her

colleagues were forced to assume the responsibility of

administering the Replacement Portfolios u nder a compressed

timeframe. Respondent's conduct thus constitutes misconduct in

office as provided in rule 6A - 5.056(2)(e).

b. Violation of the Code of Ethics

81. Petitioner also has charged Respondent with violating

the Code of Ethics of the Education Profession in Florida, rule

6A - 10.080. 1 3 /

82. As discussed above, 1 4 / the evidence establishes that

Respondent 's conduct violated this rule .

c. Violation of the Principles of Professional Conduct

83. Pe titioner also has charged Respondent with violating

the Principles of Professional Conduct for the Education

Profession in Florida, rule 6A - 10.081. 1 5 /

8 4 . As discussed above, 16 / the evidence establishes that

Respondent 's conduct violated this rule .

d. Violation of School Board Policies

85. Petitioner has charged Respondent with violating

School Board Policies 3210 and 3210.10.

86. As discussed above, 1 7 / the evidence establishes that

Respondent 's conduct violated these policies .

C. Weight Ass igned to Other Evidence in the Record

87 . Petitioner's evidence regarding Respondent's grading

of the Portfolio test papers was not persuasive. Although

Zabala testified that many of Respondent's students' test papers

appeared to have an unusually large number of erasure marks and

changes of wrong answers to right answers, she acknowledged that

she did not look for or count the number of changes from right

answers to wrong answers or wrong answers to wrong answers.

Further, she acknowledged that she did not compare any othe r

third - grade students' Portfolio test papers with those of

Respondent's students in order to determine whether t he number

of erasures and answer changes on Respondent's students' papers

actually were inordinately high. Without these benchmarks,

there is no factual basis on which to conclude that there was an

unusually large number of erasure marks on Resp ondent's

s tudents' test papers, and, t hus , that Respondent helped her

students cheat on the Portfolio tests.

88 . T he undersigned also found unpersuasive Zabala's

testimony that on some of Respondent's students' test papers,

circles around some correct answers were larger than circles

around answers on those same papers ÏÏ evidencing that Respondent

herself had circled the correct answers on the test papers.

Zabala was not qualified as an expert in handwriting and was not

otherwise shown to be competent to t esti fy on th is point. See

Huff v. State , 437 So. 2d 1087 (Fla. 1983)(the trier of fact is

not competent to make a handwriting comparison without the aid

of expert testimony); Clark v. State , 114 So. 2d 197 (Fla. 1st

DCA 1959)(the comparison of handwriting is an ar t which can be

judicially practiced only by expert o r skilled witnesses). 18 /

Accordingly, her testimony on this point is not considered

reliable and is given no weight in this proceeding.

89 . The undersigned also finds unpersuasive Zabala's

testimony to the effect that Respondent graded many of her

students' test papers in pencil rather than pen specifically to

facilitate cheating . T he credible, persuasive evidence

establishes that teachers were not required to grade the

Portfolio papers in pen ; there fore, it is speculative to surmise

that Respondent graded the Portfolio tests in pencil

specifically to help her students cheat on the Portfolios.

90 . T he undersigned also finds unpersuasive Petitioner's

evidence regarding Respondent's students' poor pe rformance on

the Replac ement Portfolios as compared to that on the 2014

Portfolios. The credible, persuasive evidence establishes that

Respondent's students took Replacement Portfolios under

significantly different conditions than those under which they

t ook the 2014 Portfolios. Specifically, Respondent's ESOL

students ÏÏ which comprised a substantial majority of the class ÏÏ

had used translation dictionaries in taking the 2014 Portfolios

but were not able to use them in taking the Replacement

Portfolios. Th us , it is entirely reasonable to infer that their

significantly poorer performance on the Replacement Portfolios

was due to this substantial inconsistency in how the 2014

Portfolios and Replacement Portfolios were administered. In any

event, Petitioner di d not demonstrate, by credible, persuasive

evidence, that the reason Respondent's students performed

markedly worse on the Replacement Portfolio tests than they had

on the 2014 Portfolios was because Respondent help ed them cheat

on the 2014 Portfolios.

91 . T he undersigned also assign s no weight to Zabala's

testimony that Respondent's students' markedly better

performance on the 2014 Portfolios tests compared to their

performance on previously - administered SAT and FCAT exams , and

that this indicated that Respondent had helped her students

cheat on the Portfolio tests . The interpretation and comparison

of different types of standardized and non - standardized

educational evaluation instruments, such as the SAT, FCAT, and

Portfolio tests , requires special kn owledge , skill, experience,

or training in educational measurement or a similar subject

area , and , therefore , is appropriately the subject of expert

testimony. See, e.g. , Hoots v. Pennsylvania , 272 F. Supp. 2d

539 (W.D. Pa. 2003); Teresa P. v. Berkeley Unified Sch. Dist. ,

724 F. Supp. 698 (N.D. Cal. 1989). Here, although the evidence

showed that Zabala generally is knowledgeable about testing from

her many years as an educator, she was not qualified as an

expert in educational measurement or in any othe r discipline , so

is not competent to testify on this point . Thus, p ursuant to

sections 90.701 and 90.702, Florida Statutes, her testimony is

not afforded any weight.

92 . In sum, for the reasons addressed above, it is

determined that Respondent helped her students cheat in taking

their Reading Portfolio tests during the 2013 - 2014 school year,

and that her conduct constitutes misconduct in office as defined

in r ule 6A - 5.056 , violate s rules 6A - 10.080 and 6A - 10.081, and

violates School Board Policies 3210 and 3210.01.

93 . Accordingly, just cause exists , pursuant to

section 1012.33, Florida Statutes, for Petitioner to suspend

Respondent without pay and to terminate her employment as a

teacher.

CONCLUSIONS OF LAW

9 4 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

9 5 . Here, Petitioner alleges that just cause exists to

suspend Respondent from her employme nt without pay and terminate

her employment as a t eacher, pursuant to section 1012.33,

Florida Statutes; r ule 6A - 5.056 ; rule 6 A - 1 0.080 , 1 9 / the Code of

Ethics of the Education Profession in Florida; rule 6 A - 1 0 . 081 , 20 /

the Principles of Professional Conduct for the Education

Profession in Florida ; and School Board Policies 3210 and

3210.01 . These statutes and rules are penal and therefore must

be strictly construed, with ambiguities resolved in favor of the

person charged with violating them. McCloskey v. Dep't of Fin.

Servs. , 115 So. 3d 1103 (F la. 5th DCA 2013); Lester v. Dep't of

Prof. & Occupational Reg. , 348 So. 2d 923 (Fla. 1st DCA 1977);

See also Miami - Dade Cnty. Sch. Bd. v. Fleurantin , Case No. 13 -

4129 (Fla. DOAH July 29, 2014); Miami - Dade Cnty. Sch. Bd. v.

Snow , Case No. 13 - 1177 (Fla. DOAH Mar. 31, 2014).

9 6 . Respondent is an instructional employee as defined

in section 1012.01(2). Petitioner has the authority to

suspend and terminate instructional employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

9 7 . To do so, Petitioner must prove, by a preponderance of

the evidence, that Respondent committed the alleged violations

and that such violations constitute "just cause" for dismissal.

§ 1012.33(1)(a), (6), Fla. Stat.; McNeill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd.

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

9 8 . As discussed above, w hether Respondent committed the

charged offenses is a question of ultimate fact to be determined

by the trier of fact i n the con text of each alleged violation.

Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1985); 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 . Pursuant to s ections 1012.33( 1)(a) and (6) ,

instructional staff may be terminated during the term of their

employment contract only for "just cause . "

100 . Section 1012.33(1)(a) provides, in pertinent part ,

that " j ust cause " includes misconduct in office, as defined by

rule of the State Board of Education .

101 . Pursuant to r ule 6A - 5.056 (2), " misconduct in office "

is defined to mean one or more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6A - 10.080, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

102 . Rule 6A - 10.080, the Code of Ethics of the Education

Profession in Florida, states:

(1) The educator values the worth and

dignity of e very person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nur ture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity fo r all.

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 oneÓs

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.

103 . Rule 6A - 10.081, the Principles of Professional

Conduct for the Education Profession in Florida, states in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

F lorida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educatorÓs

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 studentÓs mental

and/or physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

10 4 . School Board Policy 3210, Standards of Ethical

Conduct, states in pertinent part:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, in

a manner that will reflect credit upon

themselves and the schoo l system.

A. An instructional staff member shall:

1. 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 by the rule s of the

State Department of Education;

* * *

3. make a 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;

* * *

17. maintain honesty in all professional

dealings;

* * *

26. not submit fraudulent information on

any document in connection with professional

activities [.]

10 5 . School Board Policy 3210.01 states in pertinent part:

All members of the School Board,

administrators, teachers and all other

employees of the District, regardless of

their position, because of their dual roles

as public servants and educators are to be

bound by the following Code of Ethics.

Adherence to the Code of Ethics will create

an env ironment of honesty and integrity and

will aid in achieving the common mission of

providing a safe and high quality education

to all District students.

As stated in the Code of Ethics of the

Education Profession in Florida (State Board

of Education F.A.C. 6B - 1.001):

A. The educator values the worth and

dignity of every person, the pursuit 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.

B. The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

C. Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, students, parents, and other

members of the community, the educator

strives to achi eve and sustain the highest

degree of ethical conduct.

* * *

Fundamental Principles

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

* * *

D. Honesty ÏÏ Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating nor lying.

* * *

H. Respect ÏÏ 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 (3) major

forms: respect for oneself, respect for

other people, and respect for all forms of

life and the environment.

I. Responsibility ÏÏ Thinking before acting

and being accountable for their actions,

paying attention to others and res ponding to

their needs. Responsibility emphasizes our

positive obligations to care for each other.

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making

the well - being of the students and the

honest performance of professional duties

core guiding principles.

* * *

D. To treat all persons with respect and to

strive to be fair in all matters.

E. To take responsibility and be

accountable for his/her actions.

* * *

H. To be efficient and effective in t he

performance of job duties.

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety [.]

106 . For the reasons discussed above, it is concluded that

Petitioner has demonstrated, by a preponderance of the competent

substantial evidence, that Respondent engaged in misconduct in

office as defined in rule 6A - 5.056(3); violated the Code of

Ethics of the Education Profession in Florida, rule 6 A - 1 0.080 ;

violated the Principles of Professional Conduct for the

Education Profession in Florida, rule 6 A - 10.081 ; and violated

School Board Policies 3210 and 3210.01.

10 7 . According, just cause exists, pursuant to

section 1012.33, Florida Statutes, for Petitioner to suspend

Respondent without pay and terminate her employment as a

teacher.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is RECOMMENDED that Petitioner, Miami - Dade County School

Board, enter a final order upholding its suspension of

Respondent, Arleen Gomez, without pay and terminating her

employment as a teacher.

DONE AND ENTERED this 30th day of October, 2015, in

Talla hassee, 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 30th day of October, 2015.

ENDNOTES

1/ All references are to the 2013 codification of Florida

Statutes unless otherwise stated.

2/ Students whose primary language is not English also are

referred to as "English Language Learners" ("ELL"). For

brevity, only the acronym "ESOL" is used in this Recommended

Order.

3/ Here, most, if not all of the students answered the test

questions b y circling, in pencil, the letter next to the

selected answer.

4/ Respondent also administered the Portfolios in the 2012 - 2013

school year.

5/ ESOL students are categorized as Level 1 through Level 5,

depending on the student's level of proficiency in English, with

Level 1 being the least proficient and Level 5 being the most

proficient. Students categorized as levels 1 through 4 receive

accommodations, such as the use of translation dictionaries in

completing class work and testing. Students classif ied as Level

5 have completed the ESOL program and no longer receive

accommodations.

6/ Each student has a folder in which all Portfolios, consisting

of a specific reading passage and questions testing

comprehension of that passage, are kept.

7/ For example, if the Portfolio titled "A Trip to the Beach"

were administered on a given day, all students present in class

that day would complete that specific Portfolio, and were not

supposed to complete Portfolios covering other topics. If a

student was absent on a given day, he or she would complete that

specific Portfolio at a later date.

8/ Klahr was not listed as a witness by either party and did not

testify at the final hearing.

9/ In particular, Zabala calmly comported herself with dignity

and professionalism throughout her lengthy testimony in direct

examination and cross - examination at the final hearing. The

undersigned found incredible and unpersuasive Respondent's

testimony that Zabala became upset and cried when she requested

to take l eave.

10/ Further, there was no persuasive evidence presented showing

any possible motive that either Zabala or Murphy may have for

lying during the investigation or at the final hearing in this

proceeding, in order to cause Respondent to lose her job. There

is no evidence showing that Respondent has any previous

disciplinary record, and no evidence was presented showing that

Respondent had not enjoyed a positive professional relationship

with Zabala and Murphy before the events leading to this

proceedi ng occurred.

11/ The current version of rule 6A - 5.056 was adopted on July 8,

2012. It was in effect at the time of Respondent's conduct at

issue in this proceeding, and, therefore, applies in this

proceeding. The rule expressly references and incorpo rates rule

6B - 1.001, the Code of Ethics for the Education Profession in

Florida, and rule 6B - 1.006, the Principles of Professional

Conduct for the Education Profession in Florida, as those rules

were numbered on July 8, 2012. On January 1, 2013, rule 6B -

1 .001 was renumbered as rule 6A - 10.080 and rule 6B - 1.006 was

renumbered as rule 6A - 10.081.

12/ See supra note 11 .

13/ See supra note 1 1 .

14/ See paragraph 75, supra .

15/ See supra note 1 1 .

16/ See paragraph 76, supra .

17/ See paragraphs 77 and 78, supra .

18/ Further, it is questionable whether, under any

circumstances, testimony regarding the difference in the size of

circle marks around choices on a test answer sheet could

constitute reliable evidence that the circles mark s were made by

different people. See Fassi v. State , 591 So. 2d 977 (Fla. 5th

DCA 1991)(comparison of spray - painted graffiti on a wall to

handwriting in a letter is too speculative to be probative

regarding the identities of the scriveners).

19/ See supra note 11.

20/ See supra note 11.

COPIES FURNISHED :

Sara M. Marken, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Second Avenue

Miami, Florida 33132

(eServed)

Branden M. Vicari, Esquire

Herdman & Sakellarides, P . A .

Suite 110

29605 U . S . Highway 19 North

Clearwater, Florida 33761

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1308

(eServed)

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.