15-000659TTS Suwannee County School Board vs. Melissa Mapp-Francisco Status: Closed Recommended Order on Wednesday, June 3, 2015.

Summary: Petitioner failed to demonstrate that Respondent allowed students to cheat during her proctoring of industry certification examinations. Recommend dismissal of administrative complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWAN N EE COUNTY SCHOOL BOARD ,

Petitioner,

vs . Case No. 15 - 0 659 TTS

MELISSA MAPP - FRANCISCO ,

Respondent.

__ _______________________________/

RECOMMENDED ORDER

Pur suant to notice, a final h earing was conducted in Live

Oak, Florida, on March 23 and April 2 , 2015, before

Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Deborah Stephen Minnis , Esquire

Opal L. McKinney - Williams , Esquire

Ausl ey & McMullen, P.A.

Post O ffice Box 391

Tallahassee, Florida 32302

F or Respondent: Archibald J. Thomas, III

4651 Salisbury Road, Suite 255

Jacksonville, Florida 32256

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent 's

employment with the Suwa n nee County School Board.

PRELIMINARY STATEMENT

In or around December 2014, Petitioner Suwan n ee County

School Board ("Petitioner" or "School Board") notified

Respondent that it was ini tiating proceedings to term inate her

employment. Respondent timely requested a formal administrative

hearing to con test the School Board's intended action and , on

February 9, 2015 , the matter was referred to the Division of

Administrative Hearings ("DOAH ") for further proceedings.

The gravamen of the School Board's Administrative Complaint

("Complaint") is that, while proctoring a series of on - line

"QuickBooks" certification examina tions during the spring of

2014 , Respondent knowingly and improperly all owed students to

share answers , thereby violating , inter alia, the Code of Ethics

of the Education Profession (adopted in Florida Administrative

Code Rule 6A - 10.080) and the Principles of Professional Conduct

for the Education Profession in Florida (adopte d in Florida

Administrative Code Rule 6A - 10.081).

As noted above, t he fi nal hearing was held on March 23 and

April 2 , 2015, during which the School Board p resented the

testimony of ten witnesses (Theodore Roush; Angelia Stuckey;

Walter Boatright; Dr. Wil liam Brothers; and students N.T., K.G.,

A.T., A.C., C.S., and S.C.) and introduc ed 23 exhibits, numb ered

1 through 12; 14 through 18; 20; 21; and 24 through 27 .

Respondent testified on her own behalf, called one other witness

(Chastity Thomas ), and introd uced six exhib its: A, B, I, J, K,

and P . At the conclusion of the hearing, the undersigned

granted the parties' request to set the deadline for the

submission o f proposed recommended orders at 14 days from the

filing of the hearing transcript.

Transc ripts of the March 23 and April 2 proceedings were

filed, respectively, on April 20 and April 17, 2015. Both

parties timely filed proposed recommended orders, which the

undersigned has considered in the preparation of this

Recommended Order.

Unless othe rwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FINDINGS OF FACT

I. Introduction

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schoo ls within

Suwan n ee County , Florida.

2. Beginning in 2004, and at a ll times relevant to this

cause , Respond ent was employed as a teach er at the Suwannee -

Hamilton County Technical Center ("SHCTC") , an institution

operated by the Suwannee County School Boar d.

II. The Events

3. The relevant background facts in this matter are

largely undisputed. During the time period implicated by the

Complaint, i.e., the latter half of the 2013 - 2014 school year,

Respondent's job duties included the proctoring of indus try

certification examinations. Such e xaminations included, among

others , a QuickBooks certification t est, which is administered

on line .

4 . As detailed during the final hea ring, the QuickBooks

test was offered at SHCTC pursuant to a written agreement

between Respondent and Certi port, Inc., an entity that

specializes in the delivery of online examinations. The

agreement contemplated, inter alia , that Respondent would comply

with Certiport's policies and guidelines for administering the

examination.

5 . Respondent's efforts to prepare her students for the

examination were twofold. First, with the assistance of N.T. ÏÏ a

student enrolled in Respondent's finance and business t echnology

course at that time ÏÏ Respondent prepared a study guide and

dissem inated it to her classes. In addition, Respondent

adminis tered multiple practice examinations , which each student

could access at a computer terminal using his or her own

password. Once a student demonstrated sufficient mastery of the

material (as indica ted by a practice score of 700 or higher),

Respondent would, within the nex t day or so , administer the

"actual" QuickBooks test.

6 . Before proceeding further, several observations about

the actual QuickBooks test are in order. Notwithst anding the

Scho ol Board's assertions to the contrary, the credible evidence

establishes that, unlike the practice examinations, the actual

test could not be accessed until Respondent entered her personal

password ÏÏ which was known only to her ÏÏ into the computer

terminal w here the student was seated. 1 / It is also noteworthy

that, because the students progressed through the material at

different speeds, the actual exams were administered on a

"ro lling" basis during April 2014. Finally, and perhaps most

important, the actua l tests were continually plagued by a

technical glitch : answers to certain questions would not upload

automatically to Certiport as students proceeded through the

examination s ÏÏ an issue that, if not remedied quickly, would

cause the test s to "time out" or lock up. 2 / Respondent soon

discovered, however, that such an eventuality could be prevented

by prompting students to click "next" when loading problems

arose . 3 /

7 . The precise number of students who passed the actual

examination will be explored be low . For the moment, it suffices

to say that more than two dozen students earned QuickBooks

certifications ; that the School Board awarded Respondent a bonus

of $50 for each passing score ; and that the 2013 - 2014 academic

year concluded w ithout a single stu dent voicing any concerns to

school administration regarding the manner in which Respondent

administered the actual examinations.

8 . Some six month s later, however, students K.G. and L.W. ,

both of whom Respo ndent had previously rebuked in c onnection

with their employment at the Suwannee High School branch of

First Fede ral Bank (hereinafter "Bulldog Bank"), 4 / notified an

elected member of the Suwannee County School Board that

Res pondent had allowed students to cheat.

9 . An investigation ensued, during wh ich the School Board

obtained records indicating that 31 students had earned

QuickBooks certifications during the period in question . Of

those 31 students, 14 had graduated the previous June and, for

all that appears, were unavailable for questioning. As such,

school officials interviewed the 17 students who had yet to

graduate , five of whom either denied having taken the test or

claimed that no impropriety had occurred.

10 . Ultimately, the School Board's investigation yielded

12 statements that, to va rying degrees, implicated Respondent of

wrongdoing. 5 / Notably, however, only one of the 12 statements

made any distinction whatsoever between the actual examination

and the practice tests 6 / ; in other words, 11 of t he 12 students

did not spe cifically ind icate in their statements that they

received inappropriate assistance during the actual examination.

11 . It is hardly surprising, then, that of the six

stu dents to testify for the School Board during the final

hearing, at least three could not rule out the possibility that

the test answers were supplied during the practice tests (which

would not be improper) inst ead of the actual examination. T he

following excerpts from the testimony of A.T., C.S. , and S.C.

bring this weakness in the School Board's case into sharp

relief:

[Student A.T.]

Q And my question is: How do you know that

that test that you were referring to was not

a practice test as opposed to a real test?

A I do not know.

* * *

[Student C.S.]

Q Okay. Did you receive any help on any of

the actual tests?

A That's the blurry line, too. You know,

it 's from the difference between the practice

Î I know we definitely helped each other

during the practice, but during the actual

test. I remember one of the last ones doing

them alone, so.

Q Okay. During one of the last tests, you

did them alone Î you did it alone?

A Uh - huh.

Q Did you receive any help from anyone on

the actual test?

A That's the thing. You know, it's -- it's

a real blurry kind of line there.

Q Okay. When you say " blurry line," what do

you mean?

A Like the difference between the practice

and the -- the last one, the final exam.

* * *

[Student S.C.]

Q How do you know the test that you were

referring to as the actual test, when [N.T.]

was walking around giving he lp, was the real

test and not the practice test?

A I don't know. [ 7 / ]

Mar. ., pp. 126; 159; and 183.

12 . For differing reasons, the testimony of the School

Board's remaining student witnesses ( A.C., K.G., and N.T. ) was no

more persuasive. A.C., for example, testified that N.T. supplied

answers during the actual test with Respondent's assent.

However, this version of ev ents is entirely undercut by A.C.'s

claim t hat she loaded the actual examination using her own

password ÏÏ an impossibility in lig ht of the credible evidence

establishing that the students' passwords could only access

practice tests.

13 . For their part, students K.G. and N.T. offered accounts

that are at least facially plausible : both students clearly

distinguished between the pr actice tests and the actual

examination; correctly acknowledged that Respondent's password

was required to access the actual test 8 / ; and asserted that,

during the actual examinations (which were administered at

different times), N.T. supplied answers to hi s fellow students at

Respondent's behest.

14 . Respond ent, by contrast, testified that neither she,

nor N.T., nor anyone else helped students cheat during the actual

examinations. Although Respondent acknowledged that she enlisted

N.T.'s assistance to de al with technical issues as they arose ÏÏ by

having him prompt examinees to click " next , " which prevented the

test s from timing out ÏÏ she denied that students were supplied

answers to actual test questions.

15 . In resolving these conflicts in the evidence , it is

significant that the record supplies good reason to doubt K.G.'s

veracity . Specifically, Respondent credibly testified that , on

mor e than one occasion, she reprimanded K.G. for engaging in

inappropriate behavior during his service as a "manage r" a t the

Bulldog Bank . Notably, Respondent's further assertion that K.G.

reacted negatively to the se rebukes , a nd that she attempted to

remove K.G. from his position at the bank, is corroborated by the

testimony of Angel i a Stuckey, an assistant principal at Suwanee

High School who participated in the School Board's investigation :

Q While you were assisting with the

investigation, did you ever consider whether

the students who came forward were just

disgruntled or upset with [Respondent]?

A I did.

Q And w hat did you conclude about that

concern?

A This is just my opinion. But, in my

opinion, there were two students that very

well could fall under that umbrella, because

[Respondent] and I had many conversations

beforehand concerning their employment at th e

bank and some things that they were not

taking responsibility for.

* * *

Q You said you had many conversations with

[Respondent] about two students who were in

trouble?

A Yes, sir.

Q [K.G.] was one of those students?

A That is correct.

Q Well, did you have discussions with her

about removing [K.G.] from the Bulldog Bank?

A Yes.

Mar. ., pp. 203; 215.

16 . The candor of student N.T. is likewise suspect.

Although N.T. asserted on direct examination that he "really

like[s]" Respondent an d ha s had no difficulties with her, such

testimony hardly jibes with his version of the events: that, on

multiple occasions, Respondent directed him to help his

classmates cheat on their actual QuickBooks examinations. 9 /

Moreover, the undersi gned is trou bled by N.T.'s peculiar

assertion that , because the supposed cheating occurred at the

behest of a person in authority (i.e., Respondent), he "doesn't

have a problem" 10 / with the patently dishonest act s he claims to

have committed .

17 . The short of it i s this: the undersigned finds

Respondent's denial of wrongdoing to be more credible than the

School Board's evidence to the contrary. Accordingly, the School

Board has failed to demonstrate by a greater weight of the

evidence that Respondent is guilty of the misconduct alleged in

the Complaint.

CONCLUSIONS OF LAW

I . Jurisdiction

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

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

II . The Burden and Standard of Proof

19 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth wit h the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said ] violation."

Jacker v. Sch. Bd. of Dade C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J. , concurring).

20 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated. See Cottrill v. Dep't of Ins . , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg. ,

625 So. 2d 1 237, 1238 - 39 (Fla. 2d DCA 1993).

21 . In an administrative proceeding to suspe nd or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each e lement of the charged offense. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996) . The preponderance of the evidence standard requires

proof by "the greater weight of the evidence" or evidence that

"more likely than not" tends t o prove a certain proposition.

Gross v. Lyons , 763 S o. 2d 276, 280 n.1 (Fla. 2000) .

22 . The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2 d 387, 389

(Fla. 1st DCA 1995).

III. The Charges Against Respondent

23 . As noted pre viously, the School Board's Complaint

charges a litany of statutory and rule violations, all of which

are predicated upon the allegation that Respondent intentionally

permitted students to cheat on their QuickBooks examinations.

Inasmuch, however, as the School Board has not proven this

essential allegation by a greater weight of the evidence, each

of the charges against Respondent necessarily fails as a matter

of fact . Due to this dispositive failure to proof, it is

unnecessary to render additional concl usions of law. See, e.g. ,

St. Lucie Cnty. Sch. Bd. v. Woodcock , Case No. 12 - 2755TTS, 2013

Fla. Div. Adm. Hear. LEXIS 110, *17 (Fla. DOAH Jan. 24, 2013).

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

RECOMMENDED that the Suwannee County School Board enter a

final order : dismissing the charges brought against Respondent

in this proceeding ; and awarding Respondent any lost pay and

benefits.

DONE AND ENTERED this 3rd day of June , 2015 , in

Ta llahassee, Leon County, Florida.

S

EDWARD T. BAUER

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 3rd day of June , 2015 .

ENDNOTE S

1 / Mar. ., p. 287; Apr. 2 Tr., pp. 12 - 13.

2 / Mar. ., pp. 284 - 85; Apr. ., p. 20. In an effort to

discredit Respondent's testimony on this issue, the School Board

points to a March 20, 2014, e - mail from Respondent to her

assistant principal, wherein she noted that the "real test is

live and interactive so we have been told and should no t have []

buffering or incorrect info." Pet. Ex. 24 (emphasis added). In

the undersigned's view, however, Respondent's e - mail ÏÏ which she

a uthored before the actual exams were administered ÏÏ reveals only

her expectation that the r eal tests would proceed wi thout

incident . T he e - mail was not, as the School Board appears to

s uggest, a post - hoc summary of the conditions Respondent

enc ountered during the actual examinations .

3 / In its Proposed Recommended Order, t he School Board contends

that proctors are not at liberty to resolve technical problem s

themselves, and must instead contact Certiport for assistance.

Pet'r PRO, p. 5 . However , this argument is not borne out by the

language of Certiport's "Test Candidate Exam Policies," which

expressly authorizes proctors to address technical disturbances

without the involvement of Certiport:

Please Note: In certain circumstances, the

computer on which a Test Candidate is taking

the exam may stop responding . . . . If a

Test Candidate experiences this or any oth er

problems, they must notify the Cer t iport

Authorized Testing Center (CATC)

Administrator and/ or Proctor immediately to

restart the exam. When the computer is

restarted and/or the error condition

resolved, the Proctor will launch the

software again . . . .

Pet'r Ex. 20 (emphasis added).

4 / Apr. ., pp. 8 - 11.

5 / The School Board reported its conclusions to Certiport,

resulting in the invalidation of the QuickBooks certifications

that had been awarded to Respondent's students.

6 / Pet'r E x. 11.

7 / S.C.'s testimony suffers from an additional defect , namely,

her assertion that she took the actual exam simultaneously with

11 other students, all of whom she claims received answers from

student N.T. Mar. ., p. 172. This account is not only

implausible, but impossible, for the credible evidence

establishes that only five of the computers in SHCTC's computer

lab were equipped with the QuickBooks software. Apr. ., pp.

15 - 16.

8 / Mar. . , p p . 58 ; 101.

9 / N.T.'s suppos ed affinity for Respondent is further called

into question by his testimony on recross examination, during

which he asserted ( apparently for the first time) that

Respondent directed him to help students cheat not just on the

QuickBooks examinations, but al so on a "Virtual School class

test." Mar. ., pp. 77 - 78. Obviously, this allegation is

not part of the instant Complaint.

10 / Mar. ., p. 76.

COPIES FURNISHED :

Deborah Stephen Minnis , Esquire

Opal L. McKinney - Williams, Esquire

Ausley & McMullen, P.A.

Post office Box 391

Tallahassee, Florida 32302

(eServed)

Archibald J. Thomas, III

4651 Salisbury Road, Suite 255

Jacksonville, Florida 32256

(eServed)

Jerry A. Scarborough, Superintendent

Suwannee County School Board

702 Second Street N orthwest

Live Oak, Florida 32064

(eServed)

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew H. Mears, General Counsel

Department of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.