16-007495TTS Miami-Dade County School Board vs. Rose Davidson Status: Closed Recommended Order on Wednesday, July 19, 2017.

Summary: The School Board proved misconduct in office, but not gross insubordination, related to Respondent's improper test assistance given to students, warranting a significant period of unpaid suspension, but not dismissal for this 27-year employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 7495TTS

ROSE DAVIDSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing w as conducted by video

teleconference on April 26, 2017 , between sites in Miami and

Tallahassee, Florida, before Administrative Law Judge Robert L.

Kilbride of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Christopher J. LaPiano , Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent : Mark Herdman, Esquire

Herdman & Sa kellarides, P.A.

29605 U.S. Highway 19, North , Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE S

Whether Rose Davidson committed the acts alleged in the

Miami - Dade County School Board's Notice of Spec ific Charges

dated April 7, 2017 ; and, if so, what discipline should be

imposed against her .

PRELIMINARY STATEMENT

During the time period relevant to this proceeding , Rose

Davidson (Respondent) taught first grade at Rainbow Park

Elementary School ( RPES ).

A t a scheduled meeting on December 14, 2016 , the Miami - Dade

County School Board (Petitioner or School Board) took action to

suspend Respondent 's employment without pay and institute d

proceeding s to terminate her employment. Being dissatisfied

with this dec ision, Respondent timely requested an

administrative hearing to challenge the School Board's action.

The matter was referred to DOAH, and this hearing was conducted.

On April 7, 2017 , the School Board filed its Notice of

Specific Charges with DOAH . The No tice of Specific Charges

alleged certain facts and charged in t wo separate counts tha t

Respondent was guilty of (I) Misconduct in O ffice and (II) Gross

Insubordination . These charges arose f rom an allegation that

Respondent improperly assisted her first - g rade students during a

Grade 2 SAT Math Test administered on April 4, 2016 , and

instructed them not to be truthful if asked about the incident .

Prior to the hearing, the parties filed a Second Amended

Joint Pre - h earing Stipulation, which contained certain

stipulated facts. Those stipulated facts have been incorporated

by the undersigned to the extent th ey were deemed relevant.

At the final hearing, the School Board presented the

testimony of Tedria Saunders ( r eading c oach and proctor ), D.B.

( class studen t) , Ines Diaz (assistant p rincipal), Detective

Sofie Shakir (school investigator) , Robin Armstrong (p rincipal) ,

and Helen Pina ( d istrict d irector of the Office of Professional

Standards). Petitioner's pre - marked Exhibits 1 through 16 , and

late - file d Exhib it 17 , we re admitted into evidence. ( Respondent

objected to all hearsay contained in PetitionerÓs Exhibit 7 ,

which was the investigative report prepared by Detective

Shakir . )

Respondent testified on her own behalf , and also presented

the testimony of Myri am Guisti (elementary s chool teacher) .

Respondent adopted and also offered pre - marked Exhibits 8

through 14 (student deposition transcripts) , which had

previously been offered into evidence by Petitioner .

A Transcript of the proceedings, consisting of one vol ume,

was filed on June 19 , 2017 . T hereafter, each party timely filed

p roposed r ecommended o rder s , which were considered by the

undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Sta tutes (201 6 ), and all references to rules are to the

version thereof in effect as of the time of the alleged conduct

in April 2016 .

FINDING S OF FACT

Based on the evidence presented and the record as a whole,

the undersigned m akes the following findings of fact :

1. Petitioner is the properly c onstituted School Board

charged with the duty to operate, control , and supervise all

public schools with in the S chool D istrict of Miami - Dade County,

Florida.

2. In the 2015 - 2016 school year, Respondent was employed ,

under a professional services contract , as a first - grade teacher

at R PES , a public school in Miami - Dade County.

3. Respondent Ós employment , and any disciplinary action

proposed to be taken against her , is governed by a collective

bargaining agreement betw een the School Board and the United

Teachers of Dade, as well as policies of the School Board and

Florida law.

4 . Respondent has been employed by the School Board since

1990 , nearly 27 years . She spent the first ten years of her

career teaching a t Westvi ew Elementary. She subsequently t aught

high school for approximately 15 years. She was transferred to

the Graham Center in the 2011 - 2012 school year , where she taught

second grade for that school year and the 2012 - 2013 school year.

5. Respondent was ou t of work on a period of suspension

from the School Board for the 2013 - 2014 school year . She was

reinstated by the School Board based on a Recommended Order

issued by an Administrative Law Judge at DOAH in C ase N o. 13 -

3418 TTS , which found i n her favor. S he has been at RP ES since

June 2014 .

6 . At the time of th is incident in 2016 , Respondent was a

first grade teacher at RPES.

Classroom T esting I ncident on April 4, 2016

7 . On April 4 , 2016 , Respondent administered a

standardized math test to her first - gra de class . 1 / It was

undisputed that t h e math test required the Respondent to read

the questions out loud to the class, who then answered the

question s on the ir individual test sheet s .

8. Respondent was assisted during the math testing by a

reading c oach a t the school, Tedria Saunders. Sau nders had been

employed by the S chool B oard for approximately 12 years .

S au nders was a certified reading teacher for grades k indergarten

through 12.

9. Saunders was acting as a proctor and was expected to

observe the st udents and provide support to Respondent . She

stood or sat in the classroom during the course of the math

exam . She had the freedom, like the teacher, to move around to

observ e the testing.

10. She testified that h er relationship with Respondent

had bee n professional and friendly , and they had done some

curriculum planning together. 2/

Count I - - Misconduct in Office

11. During the course of the math test , Saunders observed

Respondent engage in several testing i rregularities . S he saw

Respondent providing direct assistance and Ðgiving answers Ñ to

several students on the examination.

12. More d escriptively, s he saw Respondent physically

point out the correct answer to several students stating Ðyou

need to fix the answer . Ñ

13. Saunders also heard Responden t give verbal answers ,

prompts , or cues to several students , as Respondent walked

around the classroom and stood near the desks of several

students .

14. As she walked around , Respondent would periodically

touch or point to the student test booklet that w as on the desk

in front of the student , while making sounds and hand motions

directing them to the correct answer. For example, w hen a

student pointed to an answer , Respondent would give them a

verbal cue or signal that their propos ed answer was either ri ght

or wrong.

15. Saunders observed Respondent help approximately six to

seven students using these methods .

16. Significantly, and after making these observations,

Saunders decided to immediately depart from the class room while

the testing was still goi ng on to ask the security guard to

summon the appropriate administrator or report the event

herself .

17. After going outside, Saunders eventually found her way

across the grassy area outside the classroom to the front office

where she met with the a ssista nt p rinc ipal and test chairperson,

Ines Diaz . She reported to Diaz that Respondent was improperly

assisting the students and giving them answers to the

standardize d math questions.

18. When Diaz pressed Saunders on the plausibility of her

observations , S aunders told her that she was Ðsure ofÑ what she

had seen and reported .

19. Diaz did not recall for certain if she went to the

classroom herself , but was certain that Saunders was directed to

return to the class roo m , continue her observations , and allow

t he math testing to be completed.

20. The principal, Robin Armstrong, was present briefly

during S au nder s Ó initial visit with Diaz and after Saunders

returned to the administrative office when the testing was

concluded. She too overheard Saunders report t esting

irregularities b y Respondent .

21. After the incident o n April 7, 2016 , Armstrong

delivered a letter to Respondent warning her not to discuss the

matter with any witnesses, students , and other staff members.

Pet. Ex. 17 .

22. On May 3 , 2016 , the ad ministrative investigation was

assigned to Detective Sofie Shakir. Among other things, t he

detective interviewed several of RespondentÓs students and staff

members. Pet. Ex. 7 .

23. Her investigation and subsequent findings resulted in

the invalidation o f the standardized math test for several of

RespondentÓs first - grade students due to test irregularities and

improper assistance by Respondent on April 4, 2016 . P et .

Ex . 15. 3/

24. A conference - for - the - record ( a meeting which may lead

to disciplinary acti on) was held with Respondent on August 26,

2017 . The meeting included her union representative and Helen

Pina from t he Office of Professional S tandards a s well as

several other members of the school administration .

25. The meeting occurred nearly five mo nths after the

incident. Pina recorded the results of the meeting in a

Memorandum which w as prepared pursuant to her duties.

Pet. Ex. 4.

26. Pina documented in the m emo that when she formally

c onfronted Respondent with the allegations by Saunders,

Resp ondent stated : ÐI want to say it was first grade, not 2 nd .

I perform ed the tests very professionally. I followed all the

directions and no one helped any kids. I followed the

directions from the booklet and that is all that I did.Ñ 4/

27. More signifi ca nt was a written statement prepared by

Respondent and submitted to the principal just days a fter the

classroom incident . Pet. Ex. 16. A lthough Respondent wrote

that she administered the test Ðthe proper way , Ñ again she did

not take the opportunity to fir mly and positively deny Saunder sÓ

allegations , or respond in more detail . This was significant to

the undersigned. 5/

28. Rather than an outright and emphatic den ial of the

accusations in her first written response , she instead a ccused

Saunders of miscond uct during the math testing . The undersigned

found this unusual, and an attempt by Respondent to d eflect the

allegation and steer the blame to Saunders - - not address it head

on . 6/

29. The testimony of S tudent D . B ., called during the

hearing, was uncertain , at best , and lacked any persuasive

details to support a finding either way. As a result, his

testimony was discounted and given little weight.

30. The evidenc e from P rincipal Armstrong and A ssistant

P rincipal Diaz , concerning the prompt and contemporan eous

report ing by Saunders, is consistent with and corroborates

Saunder s Ó testimony concerning the classroom incident . 7/

31. T here was no evidence presented to indicate that

Saunders ha d given any prior inconsistent or conflicting

statements, nor was he r version of the classroom irregularities

impeached or discredited in any material fashion .

32. The undersigned carefully read, studied , and compared

a collection of deposition transcripts from seven students who

were in Respondent Ós class the day of the incident. Pet .

Ex s. 8 - 14 .

33. From those transcripts , only one of the seven students

testified that Respondent directly helped or assisted him or her

during the standardized math test . See Dep of J.M., Pet.

Ex. 11. 8/

34. The other six testified that Re spondent did not help

them , nor did they see Respondent help other students answer any

test questions.

35. Similarly, only one of the seven students deposed

stated that Saunders raised her voice or yelled at any one

during the math examination. See Dep. of S.D., Pet . Ex. 9 . 9/

36. In evaluating the weight to be given to the seven

student depositions, t he undersigned note s several key points

regarding the ir ability to accurately recall what occurred and

to know what they saw .

37. Initially, all of the st udents were very young at the

time of the incident. And while age is not controlling, it

should be considered , along with other factors.

38. More significantly, n one of these very young students

were charged with the responsibility to watch or observe t he

conduct of the teacher , other students , or the proctor during

the testing . Rather, they were instructed to concentrate and

focus on the ir own test , and not their surroundings. 10/

39. In fact, a reasonable inference from the circumstances

surrounding t his incident , or any other standardized classroom

testing for that matter, is that during regulated testing of

this nature, students would not be looking or turning around to

observ e what others are doing. Based on the private nature of

classroom testing and warnings that typically precede testing ,

s tudent s have a natural inclination to avoid being accused of

having Ðwandering eyesÑ during classroom testing.

40. In balance , the undersigned is unable to credit the

testimony of those students who claim the y did n o t see anything

untoward or improper during the testing.

41. U nder these circumstances, the fact that the students

did n o t see anything improper does not persuade the undersigned

that it di d not happen the way P roctor Saunder s Ó persuasively

testifi ed , distinctly recalled , and contemporaneously reported

to the assistant principal .

42. As a result of the testimony adduced at the hearing

and the reasonable inferences drawn from the evidence , the

undersigned conclude s that there was sufficient evidenc e to

prove Count I, Misconduct in Office.

Count II - - Gross Insubordination

43. Regarding whether or not Respondent instructed

students to be untruthful if questioned about her assisting them

during the testing, five out of the seven deposed students

denied this occurred. 11/

44. One student said Respondent told them not to tell

anyone she had ÐhelpedÑ them on the test. However, to put this

comment in proper context, this student went on to clarify that

ÐhelpingÑ them meant just reading the q uestions to the m. Pet.

Ex. 8. As a consequence, th e testimony from this student is

insignificant . 12/

45. The remaining student, when asked directly if the

teacher told him or her not to tell the truth, responded in

deposition that Respondent only told him or her ÐdonÓ t tell your

momma I helped you a little on the test . Ñ The description by

this student was unclear and conflicting as well. Pet. Ex. 11.

In sum, the testimony from this student was not persuasive.

46. In short, the undersigned is persuaded t o give some

weight and credence to the deposition transcripts of the five

students who denied that Respondent told them not to tell the

truth if asked .

47. Contrary to the allegation in paragraph 14 of the

Notice of Specific C harges, there was no persuasive evidenc e

that Respondent verbally told the students to be untruthful if

asked.

48. On Count II , Gross Insubordination, the undersigned

finds that the charge was not proven.

CONCLUSIONS OF LAW

49 . DOAH has jurisdiction over the subject matter and

parties to this case pursuant t o sections 120.569 and 120.57(1) ,

Florida Statu t es .

50 . Because Petitioner seeks to terminate Respondent 's

employment, and this case does not involve the loss of her

teaching license or certification, Petitioner has the burden of

proving t he allegations in its Notice of Specific Charges by a

preponderance of the evidence, as opposed to the higher 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 C nty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

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

51. Relatedly , t he School Board filed a Notice of Specific

Charges and is limited to proving those allegations and seeking

discipline for onl y those charges . D iscipline for any other

conduct or infractions would not be authorized. Christian v.

Dep't of Health, Bd. of Chiropractic Med . , 161 So. 3d 416 (Fla.

2d DCA 2014) , and cases cited therein.

52 . The preponderance of the evidence standar d 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 276, 289 n.1 (Fla. 2000)(relying on American

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

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

53. In a c hapter 120 hearing , the case is considered de

novo by the A dministrative L aw J udge based on the facts and

evidence presented at the hearing . There is no "presumption of

correctness" that attaches to the preliminary decision of the

Agency. Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778

(Fla. 1st DCA 1981) , and Boca Raton Artificial Kidney Ctr . , Inc.

v. Fl a. Dep't of HRS , 47 5 So. 2d 260 (Fla. 1st DCA 1985).

54. Factual findings in a recommended o rder are based on

the discretion afforded to an independent A dministrative Law

J udge . Goin v. Comm'n on Ethics , 658 So. 2d 1131 (Fla. 1st DCA

1995). Florida's Administrative Proced ures Act re quires the

hearing officer to consider all the evidence presented . He or

she is authorized to resolve conflicts, determine the

credibility of witnesses, draw permissible and reasonable

inferences from the evidence, and reach ultimate findings o f

fact based on the competent and substantial evidence presented .

Id .

55. Whether Respondent committed the charged offenses is a

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

the context of each alleged violation. McKinney v. Castor , 6 6

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

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

56. In the present case, Petitioner offered an

investigation report prepared by Detective Shakir outlin in g her

interviews and findings . Pet. Ex. 7. The document was

admitted, but Respondent timely objected at the hearing to the

use of an y hearsay in the report .

57. The d etective indicated in h er report that h er

findings were based on h er interviews with various staff members

and students who had witn essed the classroom incident. Th e

interviews are hearsay and do not qualify under any hearsay

exception s .

58. As a result, the staff and student interviews

contained in the investigator's investigation report were not

relied upon or used by the undersig ned to support any f indings.

Harris v. Game & Fresh Water Fish Com. , 495 So. 2d 806 (Fla. 1 st

DCA 1986) ; M.S. v. Dep't of Child . & Fams . , 6 So. 3d 102 (Fla.

4 th DCA 2009); Reichenberg v. Davis , 846 So. 2d 1233 (Fla. 5th

DCA 2003) , and Lee v. Dep't of H RS , 698 So. 2d 1194 (Fla.

1997). 13/

59. As previously mentioned, t he testimony of S tudent D.B.

at the hearing was accorded little or n o weight . P rior

consistent or clarifying statements Student D.B. made to the

D etective during his interview on May 5, 201 6 , are hearsay and

cannot be used by the undersigned to bolster , clarify , or

support his hearing testimony or credibility. EhrhardtÓs Florida

Evidence , 2010 ed. , § 611.2 , relying on Rodriguez v. State , 609

So. 2d 493 (Fla. 1 992 ).

Applicable P rovisions of t he C ollective B argaining A greement ,

School Board Policies , and Florida Statutes

60. The applicable C ollective Bargaining Agreement (CBA )

requires that the School Board prove Ð just cause Ñ to discipline

a teacher , and further provides that just cause for su spension

or dismissal should be based upon Florida Statutes. Pet . Ex. 1,

Art . XXI, § 1B. 1 . ; s ee also Art . XXI , § 1B. 2 .

61. The statutory definition of Ðj ust cause Ñ in school

discipline cases is outlined in section 1012.33, Florida

Statu t es, and states as follows:

1012.33 Contracts with instructional staff,

supe rvisors, and school principals. --

( 1) 1 (a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.5 7 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts , except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause .

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office ,

incompetency, two consecutive annual

performance eval uation ratings of

unsatisfactory under s. 1012.34, two annual

performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

i mprovement and unsatisfactory under

s. 1012.34, gross insubordination , willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude. (Emphasis

add ed).

62. Florida Administrative Code Rule s 6A - 55.056(2) and

6A - 10.081 , and School Board P olicies 3210 and 3210.01 , outline

ethical rules relied upon by the School Board in this case .

Se veral of these rules and policies w ere violated by Respondent

since it was proven that she helped, coached , or directly

assisted several classroom student s with standardized math test

answers. ( See for instance provisions outlined in Pet. Ex. 3,

under Ð Fundamental Principles . Ñ )

63 . Rule 6A - 55.056(4) defines gross insubor dination, in

part, as an Ðintentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority,

misfeasance, malfeasance as to involve failure in the

performance of the required duties.Ñ This would require proof

that th e direct order was given and ignored , or intentionally

refused.

64. As found previously , gross insubordination was not

proven in this case since there was no persuasive proof that

Respondent instructed students to be untruthful about the

incident if aske d .

Progressive Discipline

65. The C BA utilized by the parties expressly recognizes

and embraces the doctrine of Ðprogressive discipline . Ñ It

characterizes the applica tion of the doctrine as discretionary

with the School Board ( ÐD isciplinary action may b e consistent

with the concept of progressive discipline when the Board deems

it approp ri ate . Ñ) .

66. Although there is not a progression or list of

disciplinary steps to be followed for particular offenses , the

CBA expressly stat es that Ð the degree of dis cipline shall be

reasonably related to the seriousness of the offense.Ñ Pet .

Ex. 1, Art . XXI, § 1 , Due Process, § A.1.

67. Therefore, the parties have agreed that the time -

honored concept of progressive discipline shou ld be the polestar

to guide all dis ciplinary decision s .

68. In general, parties who follow p rogressive discipline

recognize that as the seriousness of the offense increases , or

if there are repeated instances of the same or minor offense s ,

the discipline imposed increases in severity.

69. Consequently, u nder the concept of progressive

discipline, one act of misconduct may result in minor discipline

merely because it was a first offense, whereas the same

misconduct, if repeated, could justify the imposition of major

discipline, including te rmination. In other words, different

penalties can be imposed for the same misconduct depending on

the employeeÓs record. See , generally , In re Stallworth , 26

A.3 d 1059 ( N.J. Supreme Court 2010) .

70. I n the context of governmental discipline cases,

age ncies and hearing officer s often conclude that in the absence

of a definition , or a set list of progressive penalties ,

progressive discipline means that an employee is subjected to

progressively more severe discipline when the standards of

conduct continue to be violated for the same or similar

offenses.

71. As with this case and in the absence of a list of

progressive penalties , there are generally no hard and fast

rules for progressive discipline . I t is largely understood that

the employer retains a fa ir amount of discretion to reasonably

determine what discipline would be a ppropriate.

72. F actors that are often considered include , but

are not limited to : (1) the type or severit y of the offense

committed, ( 2) the number of times the employee has com mitted

the same or similar offense , (3 ) the employee Ó s past

disciplinary record , (4) the extent to which the company Ós or

agenc yÓs operations or personnel have been disrupted or affected

by the offense , ( 5 ) the employeeÓs years of service , and (6) how

othe r employees committing similar offenses have been treated.

This last factor is commonly referred to as Ð being consistent

with past practice or custom . Ñ

73. Regarding the severity of the punishment under a

progressive discipline program implemented by a g overnmental

agency , there is a body of case law in Florida that has

developed to guide agencies on the reach and scope of

progressive discipline. 14/

74. More particularly, t he Florida Third District Court of

Appeal has provided some useful guidance in sc hool discipline

cases . In fact, t he Florida Third D istrict Court of Appeal had

the opportunity to evaluate disciplinary decisions made by this

School Board in several disciplinary case s involving the

imposition of progressive discipline.

75. In three cas es arising in the mid 1990Ós , the Court

r eversed the school b oard on several occasions for imposing a

disciplinary sanction that was not warranted under the

circu mstances , recognizing implicitly , if not directly, that the

progressive discipline provisions of a CBA were controlling. 15/

76. In Bell v. School B oard , 681 So. 2d 843 ( Fla. 3 d DCA

1996) , the court determined that di smissal was too severe a

penalty under a progressive discipli ne policy for an 11 - year

employee with no prior disciplinary action who engage d in sex

with his girlfriend in a pr ivate area at the school .

77. Likewise, in Collins v. School Board of Dade County ,

676 So. 2d 1052 (Fla. 3d DCA 1996) , a 17 - month suspension was

found too severe under the BoardÓs progressive discipline policy

for a 26 - year employee without prior discipline , who jokingly

brandished a knife at a co - worker .

78. Finally, in Centellas v. School B oard , 683 So. 2d 644

( Fla. 3 rd DCA 1996) , the court ch aracterized the dismissal of a

bus driver caught driving on a suspe nded license as Ð wildly

excessive and disproportionate . Ñ

79. I n this hearing , there was no evidence presented to

prove or suggest that Respondent , a 27 - year employee , had been

previously disciplined for any offenses . See Pet. Ex. 4 ,

Summary of Conference - f or - t he - Record .

80. As a result, t his case appears to be RespondentÓs

first case in which m isconduct in o ffice was proven .

81. The undersigned concludes that RespondentÓs misconduct

in o ffice is a serious offense and strikes at the heart of the

integrit y and sound ness of our educational testing . Conversely,

however, h er misconduct warrants corrective discipline that is

reasonably related to the offense taking into account the

factors outlined above .

82. While several students had their test scores

inv alidated, fortunately there was no proof to suggest that

there was any emotional or psychological injury to any of the

students involved. Invalidation of the test scores was ,

however, disruptive to the scho o l and its operations.

83. Nonetheless , Responde ntÓs 27 years of continuous

service , untarnished by any prior proven infractions, cannot be

overlooked and must be considered .

84. Respondent is a long - term employee who should be

afforded a chance to get back on track and contribut e to the

successful de velopment of students in the school district.

85. In summary, the undersigned find s that Respondent

violated Count I , Misconduct in Office . There was insufficient

proof, however, to establish a violation of Count II , Gross

Insubordination.

86. Applying the progressive discipline policy and

guidance f rom the Florida Third District Court of Appeal , the

undersigned recommend s that Respondent serve a significant

period of unpaid suspension and that she be required to attend

and successfully complete train ing related to testing

protocol . 16/

87. In determining the appropriate length for an unpaid

suspension, the undersigned recommend s that the School Board

apply the factors outlined above, consider it s past practice ,

and the guidance provided by the Florida Third District Court of

Appeal in Bell , Collins and C e ntellas .

88. This recommendation is offered recognizing that the

School Board is best suited to make the final decision on the

length of the suspension , applying the facts, conclusions of

law , and par ameters recommended by the undersigned. See,

generally , Dep't of Prof Ól Reg . v. Bernal , 531 So. 2d 967, 968

(Fla. 1988) .

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is RECOMMENDED that the Miami - Dade County School Boa rd

enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. It is

FURTHER RECOMMENDED that the final order impose a significant

period of unpaid suspension against Rose Davidson and require

retraining b y her on standardized testing prot o col .

DONE AND ENTERED this 19 th day of Ju ly , 201 7 , in

Tallahassee, Leon County, Florida.

S

Robert L. Kilbride

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 19th day of July , 2014 .

ENDNOTE S

1/ A standardized reading test had been administered by

Respondent the previous day without incident .

2/ Although Respondent later testified that Saunders Ðhated meÑ

and Ðorchestrated the incident against me , Ñ this testimony was

not persuasive. The undersigned find s that there was no

persuasive evidence developed at the hearing to show that there

was any animosity or ill feelings Saunders harbored against

Respondent and, in particular, no convincing reason or

motivation for Saunders to be untruthful.

3/ The investigation by Sh akir included interviews of the

assistant principal, Saunders , and several students who were in

the class. The interviews occurred on or about May 5, 2016,

approximately one month after the incident. As outlined below,

based on the objection of Responde ntÓs counsel, the

i nvestigation r eport, PetitionerÓs Exhibit 7, is hearsay and has

not been used by the undersigned in making findings of fact ,

other than facts found based upon admissions of Respondent .

4 / It is notable that after nearly five months to consider the

accusation and prepare her response, Respondent did not take

that conference opportunity, at least as recorded by Pina, to

categorically and emphatically deny in a more direct way the

allegations made by Saunders against her personally .

5/ T he reasonable inference the undersigned draws from the

absence of a firm, prompt , and un equivocal written denial of the

personal accusations by Respondent w as a consciousness of guilt

or culpability on her part .

6/ For instance, Respondent alleged that S aunders ÐslammedÑ a

test booklet in a studentÓs face during the testing and Ðscared

herÑ and that Ðwhile Saunders was busy slamming K . Ós test

booklet on K . Ós desk , Ñ another student started crying. She also

stated that Saunders was shouting outside the doo r, talking to

somebody on her cell phone. As the evidence developed, there

were no administrators, parents , or students who stepped forward

to complain in a convincing manner that Saunders had accosted

the children in this deliberate way. Also, strangely enough,

Respondent never separately reported this ÐmisconductÑ by

Saunders, raising the reasonable inference that it never

occurred. In sum, despite a full opportunity to do so,

Respondent did not sufficientl y address Saunder s Ó allegations in

her April 7, 2016 , letter to the principal.

7/ The undersigned considered it persuasive that Saunders

considered RespondentÓs test assistance blatant and obvious

enough to leave the room and immediately report the event to the

assistant principal. As noted previous ly, when pressed by Diaz

during her initial reporting, Saunders told Diaz that she was

sure of what she saw and did not equivocate in her story.

8/ Although another student stated that Respondent Ðhelped lots

of studentsÑ with the test, he or she clarifi ed that this only

meant that Respondent read them the math questions . See De p . of

L.C., Pet . Ex . 8.

9/ All of the students who testified either in person, or by way

of the deposition transcript, were first graders at the time,

and presumably only six to seven years of age. At that age, it

was not surprising to read that one of the young students did

not understand what it meant to tell the truth.

10/ RespondentÓs written instructions to the students on the

classroom Ðwhi te boardÑ reinforced this fact.

11/ The undersigned concludes that some weight should be

accorded this aspect of the studentsÓ testimony. Common sense

and experience dictates that whether they were specifically told

not to tell anyone is a more memorable and significant event for

a y oung child, as opposed to asking them if they saw something

they were not required to observe, or may have got in trouble

for observing if looking around during censored testing.

12/ As previously noted, it was undisputed that it was

appropriate for Resp ondent to read the students each question .

13/ The undersigned did use statements in the report directly

attributed to Respondent, as an ÐadmissionÑ under section

90.803(18) , Florida Statutes . See Pet. Ex. 7, Bate s stamp 36 .

14/ This body of law is pa rticularly instructive in this case

since the partiesÓ CBA does not specify a list of progressive

steps for a particular offense.

15/ Of particular interest is the progressive discipline policy

and language at play in these cases was similar to the polic y in

this case .

16/ This recommendation is made, in part, since there was no

evidence presented concerning what the past practice or custom

has been for comparable cases where a period of suspension was

imposed .

COPIES FURNISHED:

Pam Stewart, Commissi oner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

( eS erved)

Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue , Suite 430

Miami, Flo rida 33132

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submi t 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.