17-000614TTS Palm Beach County School Board vs. Maria Marrero-Rios Status: Closed Recommended Order on Friday, September 1, 2017.

Summary: School Board proved by clear and convincing evidence that Respondent assisted students and interfered with their answers during the FSA examination, which constitutes just cause for suspension and termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 0614TTS

MARIA MARRERO - RIOS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admi nistrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on May 24 and 25, 2017, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

Helene K. Baxter , Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard , Suite C - 323

West Palm Beach, Florida 33406

For Respondent: Ni cholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Resp ondent without pay

and terminate her employment as a teacher.

PRELIMINARY STATEMENT

By letter dated December 12, 2016, Petitioner, Palm Beach

County School Board ( " School Board " ), notified Respondent, Maria

Marrero - Rios ( " Respondent " ), of the School Boar d ' s intent to

suspend her for 15 days without pay and terminate her employment.

On January 11, 2017, at its scheduled meeting, the School Board

took action to suspend Respondent for 15 days without pay and

terminate her employment as a teacher.

Responden t timely requested an administrative hearing.

Subsequently, the School Board referred the matter to the

Division of Administrative Hearings ( " DOAH " ) to assign an

Administrative Law Judge to conduct the final hearing.

The final hearing was initially set f or March 20 and 21,

2017. On February 10, 2017, Respondent filed a Joint Motion to

Continue Hearing. On February 10, 2017, the undersigned entered

an Order granting the motion, and reset the final hearing for

May 24 and 25, 2017.

The final hearing commen ced as scheduled on May 24 and

concluded on May 25, 2017, with both parties present. At the

hearing, the School Board presented the testimony of Tiara Clark,

Respondent, N.D., A.C., A.V., H.C., Cheryl Collier, Kathleen

Black, Dianna Weinbaum, Kelly Patric k, D.A., Y.C., and A.R.E.

The School Board ' s Exhibits 1 through 6, 8 , 9, 11 , 13 through 18,

and 20 through 43 were received in evidence. Respondent

testified on her own behalf and presented the additional

testimony of A.H. Respondent ' s Exhibit 2 was rec eived in

evidence.

The three - volume final hearing Transcript was filed at DOAH

on July 25, 2017. On August 4, 2017, Respondent filed an

unopposed motion for extension of time for the parties to file

their proposed recommended orders. On August 4, 2017, the

undersigned entered an Order granting the motion. The parties

timely filed proposed recommended orders, which were given

consideration in the preparation of this Recommended Order.

On May 16, 2017, the parties filed their Joint Pre - hearing

Stipulat ion, in which they stipulated to certain facts. Those

facts have been incorporated into this Recommended Order as

indicated below.

Unless otherwise indicated, all rule and statutory

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

alleged vio lations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

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

public schools within Palm Beach County, Florida.

2. At all times material to this case, Responde nt was

employed by the School Board as a third - grade teacher at

Melaleuca Elementary School in Palm Beach County, Florida.

Respondent was initially hired by the School Board as a teacher

in 2006.

3. At all times material to this case, Respondent ' s

employment with the S chool Board was governed by Florida law, the

School Board ' s policies, and the C ollective B argaining A greement

between the School Board and the Palm Beach County Classroom

Teachers Association.

4. The Florida Standards Assessment ( " FSA " ) is a

standardized , statewide, individual assessment examination

administered to students in Florida ' s public schools.

5. The FSA for third - grade students includes the

M athematics and English Language Arts ( " ELA " ) Reading

assessment s .

6. Student performance on the FSA is a measure of student

accountability. A student ' s test score on the FSA must

accurately reflect the student ' s actual performance on the test.

If a student receives assistance, the student's performance will

not be accurately measured.

7. Student perform ance on the FSA is a factor in the

determination of a school ' s grade, a teacher ' s evaluation, and

potentially, a teacher ' s compensation and bonus.

8 . To maintain the integrity of the FSA and to ensure the

proper administration of the FSA, teachers re ceive mandatory

training in the correct administration of the test.

9 . On or about March 16, 2016, Respondent attended the FSA

Test Administrator Training at Melaleuca Elementary School, which

included instruction about test security.

10 . On or about March 16, 2016, Respondent received a copy

of a PowerPoint entitled " Spring 2016 Florida Standards

Assessment s Training Materials Î Computer Based Grades 4 - 5 ELA

Reading; Grade 5 Mathematics Î Paper - Based Grade 3 ELA Reading

and Grades 3 & 4 Mathematics. "

1 1 . On or about March 16, 2016, Respondent signed the " Test

Administration and Security Agreement " and the " Test

Administrator Prohibited Activities Agreement, " which prohibit

assisting students in answering tests, giving students verbal and

non - verbal c ues, and changing or interfering with student

responses.

12. By signing these agreements, Respondent agreed to

follow all test administration and security procedures outlined

in the manual and rules, and she agreed not to engage in any

prohibited activiti es or acts that would violate the security of

the test or cause student achievement to be inaccurately

measured.

13. At the hearing, Respondent acknowledged she understood

the contents of these agreements and the prohibited testing

activities.

1 4 . On M arch 31, 2016, Respondent was a third - grade teacher

at Melaleuca Elementary School and administered/proctored the FSA

Mathematics assessment to third - grade students.

1 5 . During the test, Respondent gave assistance to students

and interfered with student s ' answers.

1 6 . Specifically, R espondent : (1) made noises and tapped

on students ' desks and their test answer sheets to signal wrong

answer s; (2) pointed to wrong answer s on the test answer sheet s ;

(3) whispered to a student that " she was doing a good jo b " ; and

( 4 ) erased marks and unwanted answers on student s ' answer sheet s .

1 7 . Many students who were in the classroom when Respondent

administered the FSA Mathematics assessment on March 31, 2016,

credibly and persuasively testified at the final hearing

r egarding the assistance Respondent gave to them during the

examination, and Respondent ' s interference with their answers

during the examination .

1 8 . N.D. testified that during the test, Respondent made

noises to signal a wrong answer. N.D. also testified that

Respondent pointed to a question on her answer sheet in an effort

to have N.D. change her answer . N.D. also testified that

Respondent erased bubbles on her answer sheet.

1 9 . A.C. testified that during the test, Respondent made

noises to signal a wr ong answer. A.C. also testified that

Respondent erased bubbles on her answer sheet.

20 . A.V. testified that during the test, Respondent made

noises to signal a wrong answer. A.V. also testified that

Respondent whispered to her that " she was doing a go od job. "

A.V. also testified that Respondent pointed to answers and erased

bubbles on her answer sheet.

21 . H.C. testified that during the test, Respondent made

noises to signal a wrong answer.

2 2 . D.A. testified that during the test, Respondent tapped

on his desk to signal a wrong answer.

2 3 . Y.C. testified that during the test, Respondent made

noises to signal a wrong answer.

2 4 . A.R.E. testified that during the test, Respondent made

noises to signal a wrong answer. A.R.E. also testified that

Respon dent erased bubbles on his answer sheet.

25. A.H. testified that during the test, Respondent made

noises. A.H. also testified that Respondent erased a mark on his

answer sheet.

2 6 . Moreover, a t the hearing, Respondent conceded that she

erased bubbles on students ' answer sheets and prompted a student

when asked by the student about the definition of a p olygram.

Respondent ' s attempt to explain how she did not assist students

and interfere with their answers during the FSA examination is

unpersuasive and n ot credited.

2 7 . Respondent ' s assistance to students and interference

with students ' answers during the FSA Mathematics assessment

resulted in the Florida Department of Education ( " DOE " )

invalidating each of the students ' math tests in Respondent ' s

class room.

2 8 . The invalidation of the students ' math tests resulted

in a deficit for the placement of students in the appropriate

math instruction for the following school year.

2 9 . The persuasive and credible evidence adduced at hearing

clearly and conv incingly establishes that Respondent is guilty of

misconduct in office in violation of Florida Administrative Code

Rule 6A - 5.056(2).

30 . By assisting students and interfering with students '

answers during the FSA examination, Respondent violated Florida

Administrative Code R ules 6A - 10.042(1)(c), (d), and (f).

Respondent also violated rules 6A - 5.056(2)(d) and (e) by engaging

in conduct which disrupted the students ' learning environment and

reduced Respondent ' s ability to effectively perform duties.

Resp ondent also violated rule s 6A - 10.081 (2)(a)1 ., (2)(b)2.,

and (2) (c)1., by failing to make reasonable effort to protect

students from conditions harmful to learning, intentionally

distorting or misrepresenting facts concerning an educational

matter in direct or indirect public expression, and failing to

maintain honesty in all dealings.

3 1 . By assisting students and interfering with students '

answers during the FSA examination, Respondent also violated

School Board Policy 1.013 by failing to carry out her assigned

duties in accordance with state rules and S chool B oard policy.

3 2 . Respondent ' s conduct in assisting students and

interfering with students ' answers during the FSA examination was

clearly flagrant and purposeful. Respondent was trained not to

as sist students and interfere with students ' answers during the

FSA examination. Respondent was aware of the prohibition against

assisting students and interfering with students ' answers during

the FSA examination. Rather than adhere to these prohibitions,

however, Respondent made a conscious decision to ignore them.

CONCLUSIONS OF LAW

3 3 . DOAH has jurisdiction of the subject matter of and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

3 4 . Respondent is an ins tructional employee, as that term

is defined in section 1012.01(2), Florida Statutes. The School

Board has the authority to suspend and terminate instructional

employees pursuant to sections 1012.22(1)(f) , 1012.33(1)(a)

and (6)(a).

3 5 . Ordinarily, the Sc hool Board would be required to

prove, by a preponderance of the evidence, that Respondent

committed the violations alleged in the p etition, and that such

violations constitute " just cause " for suspension and dismissal.

§ § 1012.33(1)(a) and (6) (a) , Fla. St at.; Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990). However,

pursuant to Article II, Section M , of the Collective Bargaining

Agreement between the School Board and the Palm Beach Classroom

Teachers Association, the violations mus t be proven by clear and

convincing evidence. Moreover, because the School Board seeks to

skip step s of progressive discipline and proceed directly with

the suspension and termination of Respondent ' s employment, the

violations must be shown to be " clearly flagrant and purposeful "

in order to justify the penalt ies of suspension and termination.

3 6 . The " clear and convincing evidence " standard requires

that the evidence be found credible, the facts to which the

witnesses testify must be distinctly remembere d, the testimony

must be precise and explicit, and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier - of - fact a

firm belief or conviction, without hesitancy, a s to the truth of

the allegations sought to be established. In re Davey , 645 So.

2d 398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

3 7 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier - of - fact

in the context 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).

3 8 . Sections 1012.33(1)(a) and (6) (a) provide in pertin ent

part that instructional staff may be terminated during the

term of their employment contract only for " just cause. "

§ § 1012.33(1)(a) and (6) (a) , Fla. Stat. " Just cause " is defined

in section 1012.33(1)(a) to include " misconduct in office. "

3 9 . Sect ion 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

sections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

40 . Consistent with this rulemaking authority, the State

Bo ard of Education has defined " misconduct in office " in

rule 6A - 5.056(2) , which provides:

(2) " Misconduct in Office " means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6 A - 1 0 .0 8 0, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

Rule 6 A - 1 0 .0 81 , F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

le arning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

4 1 . Rule 6A - 5.056(2)(a) incorporates by reference rule 6A -

10.080, which is titled "Code of Ethics of the Education

Profession in Florida . " Rule 6A - 10.080 provides:

(1) 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 achievem ent of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educato r will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other memb ers of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

42. While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitutes "misconduct," it has been

frequently noted that the prec epts set forth in the above - cited

"Code of Ethics" are "so general and so obviously aspirational as

to be of little practical use in defining normative behavior."

Miami - Dade Cnty. Sch. Bd. v. Lantz , 2014 Fla. Div. Adm. Hear.

LEXIS 399, at *29 - 30, Case No. 12 - 3970 (Fla. DOAH July 29, 2014).

Likewise, the precepts in School Board Policy 3.02 are so general

and aspirational that they are of little practical use in

defining normative behavior.

43. Rule 6A - 5.056(2)(b) incorporates by reference

rule 6A - 10.081, which is titled: " Principles of Professional

Conduct for the Education Profession in Florida. " Rule 6A -

10.081( 2 ) p rovides, in pertinent part:

( 2 ) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these princ iples shall subject the

individual to revocation or suspension of the

individual educator ' s certificate, or the

other penalties as provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental

and/or physical health and/or safety.

* * *

(b) Obligation to the public re quires that

the individual:

* * *

2. Shall not intentionally distort or

misrepr esent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(c) Obligation to the profession of

education requires that the individual:

1. Shall maintain honesty in all

professional dealings.

4 4 . Rule 6A - 10.04 2, which is titled: " Test Administration

and Security, " provides, in pertinent part:

(1) Tests implemented in accordance with the

requirements of Sections 1004.93, 1008.22,

1008.30, 1012.55 and 1012.56, F.S., shall be

maintained and administered in a sec ure

manner such that the integrity o f the tests

shall be preserved.

* * *

( c) Examinees shall not be assisted in

answering test questions by any means by

persons administering or proctoring the

administration of any test.

(d) Examinees ' answe rs to questions shall

not be interfered with in any way by persons

administering, proctoring, or scoring the

examinations.

* * *

(f) Persons who are involved in

administering or proctoring the tests or

persons who teach or otherwise prepare

exam inees for the tests shall not participate

in, direct, aid, counsel, assist in, or

encourage any activity which could result in

the inaccurate measurement or reporting of

the examinees ' achievement.

4 5 . School Board Policy 1.013 is a " rule " within the

mea ning of rule 6A - 5.056(2)(c). School Board Policy 1.013

provides, in pertinent part:

1. It shall be the responsibility of the

personnel employed by the district school

board to carry out their assigned duties in

accordance with federal laws, rules, stat e

statutes, state board of education rules,

school board policy, superintendent ' s

administrative directives and local school

and area rules.

4 6 . School Board Policy 3.02 is a " rule " within the meaning

of rule 6A - 5.056(2)(c). School Board Policy 3.02 p rovides , in

pertinent part :

4. Accountability and Compliance

Each employee agrees and pledges:

a. To provide the best example possible;

striving to demonstrate excellence, integrity

and responsibility in the workplace.

b. To obey local, state and n ation al laws,

codes and regulations.

* * *

f. To take responsibility and be accountable

for his or her acts or omissions.

g. To avoid conflicts of interest or any

appearance of impropriety .

* * *

j. To be efficient and effective i n the

delivery of all job duties.

* * *

5. Ethical Standards

* * *

c. Misrepresentation or Falsification Î We

are committed to candor in our work

relationships, providing other Board

employees including supervisors, senior staff

and Board members with accurate, reliable and

timely information. Employees should

exemplify honesty and integrity in the

performance of their official duties for the

School District. Unethical conduct i ncludes

but is not limited to:

* * *

iii. Fa lsifying or misrepresenting

information reported regarding the evaluation

of students and/or District personnel [.]

4 7 . Turning to the present case, the School Board proved by

clear and convincing evidence that Respondent is guilty of

misconduct in office in violation of rule 6A - 5.056(2). As

detailed above, the School Board proved by clear and convincing

evidence that Respondent is guilty of misconduct in office by

assisting students and interfering with students ' answers during

the FSA examination. By a ssisting students and interfering with

students ' answers during the FSA examination, Respondent failed

to make reasonable effort to protect students from conditions

harmful to learning; engaged in conduct which disrupted the

students ' learning environment and reduced Respondent ' s ability

to effectively perform duties; intentionally distorted or

misrepresented facts and information concerning the evaluation of

students and an educational matter in direct or indirect public

expression ; failed to maintain hone sty in all dealings; and

failed to carry out her assigned duties in accordance with state

rules and S chool B oard policy .

4 8 . As detailed above, the School Board proved that

Respondent ' s conduct was clearly fragrant and purposeful.

RECOMMENDATION

Based o n the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Beach County School Board

enter a final order upholding the suspension and termination of

Respondent ' s employment. 1/

DONE AND ENTERED this 1st day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 1st day of September , 2017 .

ENDNOTE

1/ The School Board also charged Respondent with violating

sections 1008.24(2) and 1008.36, Florida Statutes . Section

1008.24(2) is titled " Test Administration and Security; Public

Records Exemption. " Subsection (2) states: " [a] person who

violates this section commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083. " Sec tion

1008.36 creates the Florida School Recognition Program, a

financial incentive program available to public schools in

Florida, provided certain requirements, specified in the statute,

are met. Neither s ection 1008.24(2) nor 1008.36 establish any

subst antive standards of conduct that could be violated by a

teacher for the purpose of imposing discipline.

COPIES FURNISHED:

Jean Marie Middleton, Esquire

Helene K. Baxter, Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hi ll Boulevard , Suite C - 323

West Palm Beach, Florida 33406

(eServed)

Nicholas Anthony Caggia, Esquire

Law Offi ce of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach Cou nty School Board

3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Ste wart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.