17-000615TTS Palm Beach County School Board vs. Ilissa Sanders Status: Closed Recommended Order on Monday, July 24, 2017.

Summary: Petitioner proved, by clear and convincing evidence, that Respondent assisted students on the Florida Standards Assessment, in violation of chapter 1008 and applicable rules and policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 0615TTS

ILISSA SANDERS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was held in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2016), before Cathy M.

Sellers, an Administrative Law Judge ("ALJ") of the Division of

Administrative Hearings ("DOAH"), on May 8 and 9 , 2017 , at Citrus

Cove Elementary School in Boy n ton Beach, Florida.

APPEARANCES

For Petitioner: Helene K. Baxter, Esquire

Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post office Box 19239

West Palm Beach, Florida 33416 - 9239

For Respondent: Nicholas Anthony Caggia, Esquire

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

510 Vonderburg Drive, Suite 309

Brandon , Florida 33511

STATEMENT OF THE ISSUE S

The issue is whether just cause exists for Petitioner to

suspend Respondent from her teaching position without pay for

15 days and to terminate her employment as a teacher.

PRELIMINARY STATEMENT

On or about January 11, 2017 , Petitioner took action to

suspend Respondent from her teaching position without pay for

15 days and to terminate h er employment as a teacher. Respondent

timely requested an evidentiary hearing pursuant to sections

120.569 and 120 .57(1) to challenge Petitioner's proposed agency

action. On or about January 25, 2017 , Petitioner served and

filed its Petition. The matter was referred to DOAH for

assignment of an ALJ to conduct the hearing. Petitioner's

Amended Petition, which was ac cepted as the operative

administrative charging document in this proceeding, was filed

on May 1, 2017 .

The final hearing initially was scheduled to be conducted by

video - teleconference on April 6 and 7, 2017. P ursuant to

Petitioner's unopposed motion , the final hearing was continued

and rescheduled for May 8 and 9, 2017 , with the ALJ to appear in

person at the hearing.

The final hearing was held on May 8 and 9 , 2017, at Citrus

Cove Elementary School in Boynton Beach, Florida. Petitioner

presented the testimony of Laura Green, Diana Weinbaum,

Bernadette Standish, and students L.W . , B.T., M.R., S.T., J.W.,

H.S., T.B., and A.S. Petitioner's Exhibits 1 through 11 and 33

through 37 were admitted into evidence without objection , and

Petitioner's Exhibits 12 through 15 , 17 , 38, 39, and 50 were

ad mitted over objection. Official recognition was taken of

Petitioner's Exhibits 27 through 32 and 49. Respondent testified

on her own behalf and presented the testimony of student S.G.

Respondent's Exhibits 8 and 11 through 13 were admitted into

evidence without objection, and Respondent's Exhibit 1 was

admitted over objection.

The four - volume Transcript was filed at DOAH on June 19,

2017, and the parties were given until June 30, 201 7, to file

their proposed recommended orders. Petitioner 's P roposed

R ecommended O rder was timely filed on June 30, 2017.

Respondent 's P roposed R ecommended O rder was filed on

July 3, 2017. Both proposed recommended orders were duly

considered in prepari ng this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Palm Beach County School Board, is charged

with the duty to operate, control, and supervise free public

schools within the School District of Palm Beach County

("District"), pursu ant to article IX, section 4(b) of the Florida

Constitution , and section 1012.33, Florida Statutes.

2. Respondent has been employed by Petitioner as a teacher

with Petitioner since 2005 . During the relevant timeframe , the

2015 - 2016 school year , Respondent was employed as a teacher at

Citrus Cove Elementary School (" Citrus Cove "), where she taught

t hird grade .

3. Respondent has not previously been subje ct to discipline

by Petitioner. T he evidence shows that s he consistently received

satisfacto ry performance evaluations.

II. Administrative Charges

4. On or about January 11, 2017 , Petitioner took action to

suspend Respondent for 15 days without pay and to terminate her

employment as a teacher. Respondent timely challenged

Petitioner's action by requesting an administrative hearing

pursuant to sections 120.569 and 120.57(1).

5. The Amended Petition alleges that on or about March 31,

2016, Respondent breached testing security for the Florida

Standards Assessment ( " FSA " ) 1 / by giving assistance to students

who were t aking the exam. The Amended Petition listed the

actions in which Respondent is alleged to have engaged in

assisting the students: pointing to wrong answers; giving a

" thumbs up " for right answers; tapping on the desk to indicate

wrong answers; rubbing students on the back to indicate corrected

answers; stating what question the students should be on, or

words to that effect; telling students that their answers were

wrong, or word s to that effect; telling students that their

answers were good or bad, or words to that effect; telling

students which math strategies to use for certain questions, or

words to that effect; telling students to bubble in whe n not done

when the test was fin ished; and/or whispering to students during

the test . The Amended Petition also alleges that Respondent

reviewed test questions with the students after the exam period

was over .

6 . Based on these alleged actions, Petitioner has charged

Respondent wit h violating specified provisions of the following:

sections 1008.24 (1 ) and (2) and 1008.36, Florida Statutes;

Florida Administrative Code R ules 6A - 10.042 and 6A - 10.081 ; School

Board Rule 1.013; and School Board Polic y 3.02 . If proved, the

alleged violati ons of these rules and policies would constitute

just cause under section 1012.33 to suspend Petitioner and

terminate her employment as a teacher.

III. The FSA

7. The FSA is the state - wide student assessment program

examination that is administered in Florida public school

districts . See § 1008.22 , Fla. Stat. (2015). 2/ As a public

school district in Florida, the District is required to

administer the FSA in the schools in its district. Id.

8 . T he FSA for the third grade consists of a mathematics

assessment and an English Language Arts ( " ELA " ) assessment.

§ 1008.22(3)(a), Fla. Stat.

9. For the 2015 - 2016 school year, t he FSA was administered

to t hird grade students at Citrus Cove on March 29 through

April 1, 2016. The evidence esta blishes that the ELA portion of

the exam was administered on March 29 and 30, and the mathematics

portion of the exam was administered on March 31 and April 1.

10. It is vitally important that a student' s FSA scores

accurately reflect the student's ac tual performance on the exam.

To that point, i f a student receive d a score that was

artificially inflated due to having received assistance on the

exam, th e student may wrongly be promoted to the next grade ,

rather than receiving needed academic assistance to enable him or

her to develop the skills necessary for promot ion .

1 1 . T o ensure that the FSA is correctly administered, all

teachers receive mandatory training in correct administration of

the exam . In compliance with this requirement, the teachers at

Ci trus Cove , including Respondent, received training in

administering the FSA for the 2015 - 2016 school year.

12. The evidence establishes that Respondent attended an

FSA administration training session conducted at Citrus Cov e on

or about March 11, 2016.

13. At the training session, teachers , including

Respondent, were show n a PowerPoint slide on administering the

FSA. Afterward, Respondent received a copy of this presentation

to review .

1 4 . Also a t that session, Respondent received the Spring

2016 FSA Paper - Based Test Administration Manual for Grade 3 ELA

Reading and Grades 3 - 4 Mathematics ( " FSA Manual " ) , which was

published by the Florida Department of Education . Page nine of

the manual lists examples of prohibi ted activities ; this list

includ es changing or otherwise interfering with student responses

to test items.

1 5 . Respondent also received the Test Administrato r

Prohibited Activities Agreement at the session . This agreement

informs the person administe ring the FSA t hat he or she may not

engage in certain activities listed on the agreement. These

prohibited activities include assisting students in answering

test questions or giving students verbal or non - verbal cues .

Respondent acknowledged that she received this agreement on

March 11, 2016, by signing and dating the document.

16. Respondent also received the Test Administration and

Security Agreement, which list s additional activities that are

prohibited in admin istering the FSA. These activities include

changing or otherwise interfering with student responses to test

items. Respondent acknowledged that she received this agreement

on March 11, 2016, by signing and dating the document.

17 . On or about March 2 8, 2016, Respondent received a copy

of a PowerPoint presentation titled " Spring 2016 PBT Grade 3

Reading and Grades 3 and 4 Mathematics Î Student Presentation."

She was required to review this p resentation with her students

before the FSA was administered . 3 /

1 8 . Beginning in the 2015 - 2016 school year, teacher

performance evaluations are based , in part, on Student

Performance Rating on the FSA , using the Value - Added Model

( " VAM " ). Under this evaluation method, e ach teacher to whom this

evaluation method applies ÏÏ which includ es Respondent ÏÏ receives a

"VAM S core " reflecting the performance ranking of his or her

students on the mathematics and E LA portions of the FSA. The VAM

Score constitutes 33 percent of the teacher's total performance

evaluation. The credible and persuasive evidence establishes

that teachers may be entitled to receive monetary bonuses if

their students perform well on the FSA.

1 9 . The evidence establishes that Respondent is e xperience d

in administering s tandardized tests to students over t he years in

which she taught in public school s.

IV. Investigation Leading to Administrative Charges

20 . At some point after the FSA had been administered at

Citrus Cove in the 2015 - 2016 school year, a student, Z.C. - B., who

had been in Respondent's third grade class and taken the FSA

administered by Respondent, transferred to another elementary

school in the Palm Beach County School District.

2 1 . Spurred by c omments that Z.C. - B. made to her classroom

teacher at the school to which she had transferred , Petitioner's

Office of Professional Standards conduct ed an investigation into

whether Respondent had assisted students during administration of

the 2015 - 2016 FSA , in violation of applicable testing standards

and protocols .

2 2 . While the in vestigation was being conducted, Respondent

was removed from the classroom and was reassigned to non -

instructional duties.

2 3 . As a result of the investigation, Respondent was

notified, by correspondence dated December 12, 2016, that the

Superintendent f or the District would recommend that she be

suspended without pay for 15 days and that her employment be

terminated.

2 4 . As noted above, Respondent timely requested an

administrative hearing pursuant to sections 120.569 and

120.57(1).

V. Evidence Regarding Respondent's Administration of the FSA

2 5 . Several students who had been in Respondent's third

grade class in the 2015 - 2016 school year and to whom Respondent

had administered the FSA that school year testified at the final

hearing regarding whether Respondent had engaged in certain

conduct or actions during administration of the FSA .

Student L.W.

2 6 . Student L.W. testified that while she was taking the

FSA, Respondent patted her on the back and whispered " good job"

to her. L.W. testified that she interpreted this comment as

meaning that she had gotten the question correct.

2 7 . L.W. also testified that Respondent made a " thumbs - up "

gesture over her exam paper while standing next to L.W.'s desk .

L.W. interpreted that gesture as meaning that she was doing well

on the exam . L.W. could not recall how many times Respondent

gave her a thumbs - up .

2 8 . L.W. testified that during the administration of the

test, Respondent also told the students what question they should

be on at that particula r point in t he exam period, and that

Respondent told the students that if they had not yet reached

that question, they needed to speed up in answering the

questions.

2 9 . L.W. also testified that Respondent told the students

when they had ten minutes le ft in the exam period.

30 . L.W. testified that when the math portion of the exam

was over, Respondent reviewed some math problem examples with the

class, and that the examples she reviewed were v ery similar to

those on the exam.

3 1 . L.W. testified t hat Respondent did not help her answer

the questions on the exam.

3 2 . L.W. testified that " testing boards, " 4/ consisting of

cardboard barriers erected around a portion of the writing

surface of the desk, were used in Respondent's classroom during

administration of the FSA . L.W. also recalled that paper had

be en placed over the window in Respondent's classroom door .

3 3 . She testified that she recalled the math portion of the

FSA being administered before the read ing portion was

administered.

Student R.T.

3 4 . R.T. testified that du ring the administration of the

F SA, he saw Respondent whisper to other students who were taking

the exam.

3 5 . He testified that he saw Respondent give a " thumbs up "

signal to the students while she was walking around the room

monitoring the exam , and that she gave him a " thumbs up " sign

while standing by his desk . He testified that he interpreted

that signal to him as meaning he was doing " a great job " on the

exam.

3 6 . R.T. did not remember Respondent stating that the

students should be on a specific question at that particular

point in the exam period, or Respondent telling the students to

speed up or to slow down in answering the questions.

3 7 . He testified that Respondent did not allow the students

to fill in answers after the time period for the exam had ended.

3 8 . He also testified that Respondent did not check his

answers during the exam or tell him he should change any

particular answer on the exam.

3 9 . R.T. testified that Respondent did not do anything to

help him cheat during the exam.

40 . R.T. testified that testing boards were not used during

administration of the FSA. He did not recall whether paper had

been placed over the w indow in the classroom door during

administration of the FSA.

Student M.R.

4 1 . M.R. testified that Respondent pointed to an answer on

her FSA exam paper one time, and that Respondent touched the exam

paper when she did so. M.R. interpreted this as indic ating

whether the " question was right or wrong." She t estified that in

response to Respondent's action, she changed the answer .

4 2 . M.R. te stified that Respondent gave her a " thumbs up "

signal while she was standing next to M.R.'s desk, and that M.R.

interpreted this gesture as meaning " the question was right."

4 3 . M.R. did not recall whether Respondent stated that

students should be on a specific question at that particul ar

point in the exam period; however, she testified that she did

recall Respon dent telling students that they should slow down.

4 4 . M.R. testified that she recalled Respondent reviewing

questions with the class after the exam was over. She did not

recall the specific questions or how many questions Respondent

reviewed with the class.

4 5 . M. R. also testified that testing boards were used in

administration of the FSA. She did not recall whether the window

in the classroom door was covered with paper during

administration of the FSA .

Student S.T.

4 6 . S.T. testified that Respondent whispered to her during

the mat h portion of the FSA that she was " supposed to correct

something and go back and check my test, " and that Respondent

pointed to a particular question on S.T.'s exam paper. I n

response to Respondent's action, S.T. went back and checked her

answer to the question, then changed the answer. S.T. testified

that Respondent did this for " one or two " questions.

4 7 . S.T. also testified that she saw Respondent whispering

to another student during the exam.

4 8 . S.T. testified that during the math portion of the

exam , Respondent told students that they shoul d be on a specific

question at that particular point in the exam period . She did

not recall whether Respondent also did this during the reading

portion of the exam.

4 9 . Additionally, S.T. testified that during the exam,

Respondent told the students " if you speed you will make mistakes

and you should go back and check it aga in."

50 . S.T. also testified that after the math portion of the

exam was over, Respondent reviewed a particular question from the

exam involving a " whole fraction . "

5 1 . S.T. recalled Respondent giving the class a " thumbs - up "

after the exam to complim ent them. She did not see Respondent

give individual students a " thumbs - up " during the exam.

5 2 . S.T. testified that Respondent did not rub her back,

and that she did not see Respondent rub any other student's back

during the exam.

5 3 . S.T. did not recall whether testing boards were used

during administration of the FSA. She t estified that the window

in the classroom door was not covered with paper.

Student J.W.

5 4 . J.W. testified that during the exam, Respondent tapped

on students' desks " if they were like staring off into space."

She estimated that Respondent did this with respect to

approximately six students.

5 5 . J.W. also testified that during the exam, Respondent

verbally told the students to slow down " because you might do

better if you go slow." She testified that during the math

portion of the exam, Respondent told the students that they

should be on a specific question "around a certain time . " She

also testified that at certain points during the math portion of

the exam, Respo ndent had students raise their hands if they were

on a particular question ; according to J.W., Respondent did this

" like four times."

5 6 . J.W. t estified that at the end of the math portion of

the exam, Respondent allowed students to go back and fill in

answers to questions they had not completed.

5 7 . J.W. testified that after the exam, Respondent did not

review questions with the class.

5 8 . J.W. did not see Respondent give a " thumbs - up " at any

time . She also did not see Respondent read or touch any

student's exam paper.

5 9 . J.W. testified that Respondent did not help her answer

questions on the exam.

60 . She did not recall Respondent rubbing any students on

the back or patting them on the head .

6 1 . J.W. testified that testing boards were not used in

Respondent's classroom in administering the FSA, and that there

was no paper covering the window in the classroom door.

Student H.S.

6 2 . H.S. testified that during the math portion of the FSA,

Respondent p ointed to a question and to ld her to go back and

check it. H.S. testified that in response, she changed her

answer , and that Respondent gave her a " thumbs - up" and whispered

" good."

6 3 . H.S. also testified that at the end of both the reading

and math p ortions of the FSA , Respondent told the students to

fill in answers to questions they had not finished.

6 4 . H.S. testified that Respondent did not tell students to

raise their hands during the exam .

6 5 . H.S. could not remember if testing boards were u sed in

administering the FSA, and she could not recall whether the

window in the classroom door was covered with paper.

Student T.B.

6 6 . T.B. testified that during the test, Respondent helped

him answer a question by pointing to a sentence , and " when I

flipped the page, the sentence was for an answer . " He clarified

that when he flipped the page of the exam, he saw another answer

so " I changed it because I had the wrong one." He interpreted

Respondent's action as indicating that he had gotten the question

wrong, so he changed his answer.

6 7 . T.B. also testified that Respondent told the students

during both portions of the exam that they should be on a

specific question at that particular point in the exam period .

He testified that Respondent also told them if they were going

too fast, they needed to slow down.

6 8 . T.B. testified that testing boards were used in

Respondent's classroom during administration of the FSA. He

could not recall whether paper covered the window in the

c lassroom door during the administration of the exam.

Student A.S.

69 . A.S. testified that Respondent pointed to her exam

paper and that in response, she went back and revised one of her

answers on the math portion of the exam .

7 0 . A.S. also testified that during the exam, Respondent

told the students the specific question they should be on at that

particular point , and if they were not on that question, they

needed to speed up or slow down . A.S. testified that in

response, she s ped up and finished her exam on time.

7 1 . A.S. also testified that after the exam period was

over, Respondent told students to go back and fill in answers to

questions they had not finished.

7 2 . A.S. testified that testing boards were used in

Respondent's classroom during administ ration of the FSA, and that

paper covered the window in the classroom door.

Student S.G.

7 3 . S.G. testified that during the exam, Respondent told

the students that they should be on a specific question at that

part icular point in the exam.

7 4 . S.G. was un able to recall many details about the 2015 -

2016 FSA exam or its administration.

Respondent

7 5 . As discussed above, the investigation that gave rise to

this proceeding was initiated after one of Respondent's for mer

students, Z.C. - B. , 5/ apparently communicated that Respondent had

engaged in certain conduct during administration of the 2015 - 2016

FSA that, if true, would violat e the statutes, rules, and

policies regarding administration of the FSA.

7 6 . Responde nt offered a possible motive for Z.C. - B.'s

statements. She testified that she had been asked by Z.C. - B.'s

parents to provide information on a Social Security Supplemental

Security Income ( " SSI " ) application form regarding Z.C. - B.'s

performance in school. Respondent stated on the form that in her

view , Z.C. - B.'s school performance was " fine." Respondent

surmised that because of her assessment of Z.C. - B.'s academic

performance, Z.C. - B.'s family may not have quali fied to receive

SSI payments, so may have harbored ill will against her. She

acknowledged that Z.C. - B.'s parents did not communicate to her

that they " had a problem " with her statements on the SSI form.

7 7 . Respondent testified that she did not believe she

violated an y testing protocols established by statute, rule, or

policy in administering the 2015 - 2016 school year FSA.

7 8 . She testified that she did not assist any students in

answering any of the 2015 - 2016 FSA test items.

79 . She testified that she did not linger at any student's

desk long enough to read the FSA exam questions , and that she did

not read the questions or know any questions on the exams in

advance of administering them.

8 0 . She also denied giving any non - ver bal cues to the

students during administration of the exam , other than generally

giving them a " thumbs - up " to relax them and keep them on task.

8 1 . She did not recall whether she had given any students

any verbal cues during the exam.

8 2 . She denied telling the students to speed up, slow down,

or raise their hands if they were on a specific question at a

particular time during the exam.

8 3 . She denied changing any of the students' answers on the

exam.

8 4 . She testified that she did not recall ta pping on any

student's desk, but stated that if she had, it would have been to

re - focus the student's attention to taking the exam.

8 5 . She also denied having review ed the questions on the

2015 - 2016 FSA exam with the students after it had been

administe red.

8 6 . Respondent testified that she did not use testing

boards during the administration of the FSA. 6 / She testified that

the window in the classroom door was partially covered with paper

and a magnetic frame containing a sign indicating that testing

was being conducted.

VI. Progressive Discipline

8 7 . T he Collective Bargaining Agreement between t he Palm

Beach County School District and the Palm Beach County Classroom

Teachers Association (July 1, 2015 Î June 30, 2016)( " CBA " ),

titled " Discipl ine of Employees (Progressive Discipline), "

article II, section M , establishes a disciplinary system under

which discipline is administered " progressively . " Under this

system, discipline is imposed sequentially, beginning with a

verbal reprimand with writ ten notation; then advancing to a

written reprimand; then advancing to suspension without pay; and

culminating in termination of emplo yment.

8 8 . This sequential imposition of discipline applies

" [e]xcept in cases which clearly constitute a real and immediate

danger to the District or the actions/inactions of the employee

constitute such clearly flagrant and purposeful violations of

reasonable school rules and regulations " as to warrant deviating

from th e sequence . CBA, art. II, § M., ¶ 7 . (emphasis added).

89 . As noted above, Respondent has not previously been

subject to discipline.

90 . However, she is an experienced teacher who previously

administered standardized tests to students over her years of

teaching. Further, and most important, Respondent received

extensive training in the proper administration of the 2015 - 2016

FSA. Additionally, she received , and was charged with reviewing,

understanding, and following , the FSA Manual, the Te st

Administrator Prohibited Activities Agreement, and the Test

Administration and Security Agreement ÏÏ all of which expressly

prohibited engaging in conduct that constituted assisting

students in answering test questions, giving students verbal or

non - verba l cues, or interfering with students' responses on the

exam.

9 1 . Under these circumstances, it is determined that

Respondent's conduct constituted a clearly flagrant and

purposeful violation of Petitioner's rules and regulations.

VI I . Findings of Ultimate Fact

9 2 . Under Florida law, whether charged conduct constitutes

a deviation from a standard of conduct established by rule or

statute is a question of fact to be decided by the trier of fact,

considering the testimony and evidence in the context of the

alleged violation. Langston v. Jamerson , 653 So. 2d 489 (Fla.

1st DCA 1995); Holmes v. Turlington , 480 So. 2d 150, 153 (Fla.

1st DCA 1985). See also McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); MacMillan v. Nassau Cnty. Sch. Bd. , 629 So.

2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged

in an administrative complaint violates the laws, rules, and

policies set forth in the charging document is a factual, not

legal, determination.

9 3 . Petitioner has met its burden i n this proceeding to

show, by clear and convincing evidence, that Respondent engaged

in conduct with which s he was charged in the Amended Petition.

9 4 . Nine students testified at the final hearing . All of

them described various actions on Respondent 's part that, as

described , violated established FSA administration protocol .

9 5 . Even though the students' descriptions of Respondent's

conduct in administering the FSA were not uniformly consistent,

t he undersigned finds the students to be credible and persuasive

witnesses . The undersigned ascribes th e discrepancies in the

students' testimony ÏÏ which, on balance, concerned minor or

collateral details 7/ ÏÏ t o the fact that the students were

testif ying about events that had o ccurred approximately one ye ar

earlier , and also because not all of the students had the same

interactions with Respondent during the FSA . Key to th i s

credibility determi nation is that many of the students'

testimonial descriptions were precise and explicit, and were

strikingly similar and remarkably consistent regarding certain

conduct in which Respondent is alleged to have engaged.

9 6 . Specifically , several students testified, credibly,

that during the exam, Respondent pointed to questions on their

exam papers or touched their exam papers . Some of the students

perceived her actions as a prompt or cue, and in response,

changed an answer.

9 7 . Several students also credibly testified that during

the exam, Respondent whispered to them about a question or

respons e, saying " good job " or indicating that they should check

an answer. Some students saw Respondent whisper to other

students in the class during the exam.

9 8 . Additionally, several students credibly testified that

Respondent verbally paced the class by telling them , during the

exam , that they should be on a specific question at that

particular time , or that they should slow down or speed up in

answering the questions.

99 . Some s tudents also credibly testified tha t after the

exam period was over, Respondent allowed students t o fill in

answers to questions they had not finished .

10 0 . Several students testified that they saw Respondent

give a " thumbs up " during the exam. Some students credibly

testified that Respondent specifically made that gesture to them ,

and that they interpreted the gesture as meaning they were doing

a good job or that they had answered a particular question

correct ly .

101 . One student also credibly testified that Respondent

rubbed he r back during the exam, which she interpreted as

indicating that she had answered a question correctly.

10 2 . As discussed above, Respondent denied having engaged

in the conduct alleged in the Amended Petition, other than

generally giving a " thumbs up " d uring the exam to relax the

students.

10 3 . Although Respondent denied having engaged in the

conduct alleged in this proceeding, it is determined that the

evidence in the record clearly and convincingly establi shes that

in administering the 2015 - 2016 FSA , Respondent engaged in certain

conduct alleged in the Amended Petition . Specifically, the

evidence clearly and convincingly shows that Respondent engaged

in the following conduct : point ing to wrong answers; g iving a

" thumbs up " for the right answer ; rubbing students on the back to

indicate that an answer had been corrected; telling students that

their answer was wrong, or words to that effect; telling students

their answer was good or correct, or words to that effect;

telling students to bubble in a nswers if they were not finished

when the exam period was done; and whispering to students during

the exam.

10 4 . As further discussed below, t hese actions violate the

following statutes, rules, and policies: section 1008.24(1)(c),

(f), and (g), Florida Statutes 8/ ,9/ ; Florida Administrative Code

R ule 6A - 10.042(1)(c), (d), and (f); Florida Administrative Code

R ule 6A - 10.081(1)(b) and (c), (2)(a)1., (2)(b)2., and (2)(c)1. ;

Florida Administrative Code Rule 6A - 5.056(2); School Board

Rule 1.013(1); and Schoo l Board Policy 3.02 . 4 . a . , b . , g . , and j .

and 3.02. 5 . c . iii . and 5 . i. 10/

10 5 . As discussed below, Respondent's conduct in violating

rule 6A - 10.081 and Petitioner's policies also constitutes

misconduct in office under rule 6A - 5.056.

1 0 6 . Based on the foregoing, the undersigned finds, as a

matter of ultimate fact, that there is just cause, as defined in

section 1012.33, to suspend Respondent without pay and to terminate

her employment.

CONCLUSIONS OF LAW

10 7 . DOAH has jurisdiction over t he parties to, and subject

matter of, this proceeding.

10 8 . This is a disciplinary proceeding in which Petitioner

seeks to suspend Respondent from her teaching position, without

pay, for 15 days, and to terminate her employment as a teacher,

for violating the following: section s 1008.24(1) (c), (f), and

(g), and 1008.24 (2) , 1 1 / Florida Statutes; section 1008.36, Florida

Statutes 1 2 / ; Florida Administrative Code R ule 6A - 10.042 (1)(c),

(d), and (f); Florida Administrative Code R ule 6A - 10.081 (1)( b )

and (c) , ( 2) (a)1. , (2) (b)2. , and (2)(c)1. ; Florida Administrative

Code Rule 6A - 5.056(2); School Board Rule 1.013 (1) ; and School Board

Policy 3.02.4.a., b., f., 13/ g., and j., and 3.02. 5.c.iii and i.

1 09 . V iolations of these rules and policies , if proved,

constitute just cause , pursuant to section 1012.33, Florida

Statutes, to suspend Petitioner and terminate her employment as a

teacher.

1 1 0 . Respondent is an "instructional emplo yee" as defined

in section 1012.01(2). Pursuant to sections 1012.22(1)(f) and

1012.27(5), rule 6A - 5.056, School Board Policy 3.27, and

article II, section M of CBA , Petitioner is authorized to

discipline Respondent in this proceeding .

1 1 1 . To suspend and terminate Respondent's employment,

Petitioner must prove that Respondent committed the acts alleged

in the Petition; that those acts violate the laws, rules, and

policies cited in the Petition; and that the violation of these

laws, rules, and policies constitutes just cause for her

dismissal. § 1012.33(1)(a), (6), Fla. Stat.

1 1 2 . Ordinarily, the evidentiary burden in disciplinary

proceedings in which a school board proposes to suspend or

terminate instructional personnel is a "preponderance o f the

evidence." See, e.g. , 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). However, where , a s

here , the school board has agreed through collective bargaining

to a more demanding evidentiary standard, it must act in

accordance with the applicable contract. See Chiles v. United

Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1993); Palm Beach

Cnty. Sch. Bd. v. Zedrick Barber , Case No. 15 - 0047 (Fla. DOAH

Aug. 31, 2015; PBCSB Oct. 13, 2015).

1 1 3 . Here, a rticle II, s ection M , of the CBA provides that

"disciplinary action may not be taken against an employee except

for just cause, and this must be substantia ted by clear and

convincing evidence which supports the recommended disciplinary

action." Accordingly, Petitioner has the burden of proof in this

proceeding by c lear and convincing evidence.

1 1 4 . T he clear and convincing evidentiary standard requires

that:

[T]he evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evide nce must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

1 1 5 . Additionally, as discussed above, 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.

Section 1008 .24

11 6 . Section 1008.24 (1) provides in pertinent part:

(1) A person may not knowingly and willfully

violate test security rules adopted by the

State Board of Education for mandatory tests

administered by or through the State Board of

Education or the Commissioner of Education to

students, educators, or applicant s for

certification or administered by school

districts pursuant to s. 1008.22, or, with

respect to any such test, knowingly and

willfully to:

* * *

(c) Coach examinees during testing or alter

or interfere with examineesÓ responses in any

way;

* * *

(f) Fail to follow test administration

directions specified in the test

administration manuals; or

(g) Participate in, direct, aid, counsel,

assist in, or encourage any of the acts

prohibited in this section.

11 7 . Pursuant to the foreg oing findings of fact, it is

concluded that Respondent violated section 1008.24(1)(c), (f),

and (g). Specifically, the evidence establishes that by engaging

in the conduct found above, Respondent willfully violated the

test security rules adopted by the Florida Department of

Education by interfering with the stu dents' responses during the

FSA . Additionally, in doing so, Respondent failed to follow the

test administration directions provided in the FSA Manual, and

participated in violating test administration standards

established in section 1008.24 and rule 6A - 10.042 .

Rule 6A - 10.042

11 8 . Rule 6A - 10.042 implements the FSA testing standards

that are established in section 1008.22. T his rule states in

pertinent part :

(1) Tests implemented in accordance with the

requirements of Section s . . . 1008.22

. . . , F.S., shall be maintained and

administered in a secure manner such that the

integrity of 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) ExamineesÓ answers 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

examinees for the tests shall not participate

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

encourage any activity which could resul t in

the inaccurate measurement or reporting of

the examineesÓ achievement.

1 19 . Pursuant to the foregoing findings of fact, it is

concluded that Respondent violated rule 6A - 10.042(1)(c), (d),

and (f). Specifically, Respondent affected the integrity of the

exam by assist ing the students in answering questions and

interfer ing with students' answers . I n doing so, she

participated in activity that could result in the inaccurate

measurement or reporting of the students' achievement.

Rule 6A - 10.081

1 20 . Rule 6A - 10.081, the Principles of Professional Conduct

for the Education Profession in Florida, states in pertinent

part:

(1) Florida educators shall be guided by the

following ethical principles:

* * *

(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 integrit y.

(c) 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.

(2) Florida educators shall comply with the

following disciplinary principles. 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.

(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 studentÓs mental

and/or physical health and/or safety.

* * *

( b) Obligation to the public requires that

the individual:

* * *

2. Shall not intentionally distort or

misrepresent 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.

1 2 1 . Pursuant to the foregoing findings of fact, it is

concluded that Respondent violated rule 6A - 10.081(1)(b) and (c),

and ( 2) (a)1., (b)2., and (c)1. Specifically, in violating the

statutory and rule requirements prohibiting assisting students in

answering the questions on the FSA, Respondent did not exercise

best professional judgment or integrity , did not sustain a high

degree of ethical conduct , and did not make reasonable efforts to

protect the student s from conditions harmful to their learning.

Further, in assisting students in answering questions on the FSA,

she engaged in intentional misrepresentation of fact s concerning

an educational matter thr ough potentially affecting the accuracy

of their exam scores, and she failed to maintain honesty in the

professional dealings associated with administering the FSA.

School Board Policy 1.013

1 2 2 . School Board Policy 1.013, "Responsibilities of School

Dis trict Personnel and Staff," states 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, state

statutes, state board of educat ion rules,

school board policy, superintendent's

administrative directives and local school and

area rules.

1 2 3 . Based on the foregoing findings of fact, it is

concluded that Respondent violated School Board Policy 1.013. As

discussed above, in assisti ng students in answering questions on

the FSA, Respondent did not carry out her assigned duty in

accordance with applicable Florida S tatutes, Florida Department of

Education rules, or School Board policies.

School Board Policy 3.02

1 2 4 . School Board Po licy 3.02 , the Code of Ethics , provides

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 national 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 in 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 Bo ard

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 includes but is not limited

to:

* * *

iii. Falsifying or misrepresenting

information reported regarding the evaluation

of students and/or District personnel;

* * *

i. Professional Conduct Î We are committed to

ensuring that our power and authority are used

in an appropriate, positive manner that

enhances the public interest and

trust. Employees should demonstrate conduct

that follows generally recognized professional

standards. Unethical conduct is any conduct

that impairs the ability of any holder of a

necessary license, certificate , etc., to

function professionally in his or her

employment position or a pattern of behavior

or conduct that is detrimental to the health,

welfare, discipline, or morals of students or

the workplace.

1 2 5 . Based on the foregoing, it is concluded that

Re spondent's conduct violated the provisions of School Board

Policy 3.02 .4. a . , b . , g . , and j . , 14 / and 3.02. 5 . c .iii and i.

12 6 . Specifically, in assisting students in answering

questions on the FSA, Respondent did not provide the best example

possible, or strive to , or demonstrate excellence, integrity , and

responsibility in the workplace. Additionally, h er conduct in

assisting the students in answering questions on the FSA violated

local and state regulations , negatively affected her effectiveness

in t he delivery of her job duties, and created the appearance of

impropriety.

12 7 . Additionally, Respondent engaged in conduct that

falsified or misrepresented information regarding the evaluation of

students , did not exemplify honesty and integrity in the

performance of her official d uties for the School District , and did

not constitute conduct that follows generally recognized

professional standards.

Rule 6A - 5.056(2)

1 2 8 . Rule 6A - 5.056(2) defines conduct that constitutes

misconduct in office. The rule states in pertinent part:

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

of the following:

* * *

(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 adopted school board

rules[.]

1 29 . Based on the foregoing, it is concluded that

Respondent's conduct in assisting students in answering questions

on the FSA violates rule 6A - 10.081 and the School Board policies

addressed above. Accordingly , it is concluded that Respondent

engaged in misconduct in office, as defined in rule 6A - 5.056.

Just Cause under Section 1012.33

1 3 0 . Section 1012.33(6)(a) states in pertinent part:

"[a]ny member of the instructional staff, excluding an employee

specified in subsection (4), may be suspended or dismissed at any

time during the term of the contract for just cause as provided

in paragraph (1)(a)." Section 1012.33(1)(a) states in pertinent

part: "[j]ust cause includes, but is not limited to, the

fol lowing instances, as defined by rule of the State Board of

Education: . . . misconduct in office."

1 3 1 . Based on the foregoing, it is concluded that just

cause exists, under section 1012.33 , to suspend Respondent

without pay and to terminate her employm ent.

Progressive Discipline

1 3 2 . As discussed above, a rticle II, section M , of CBA

establishes a progressive discipline system that applies to

certain District employees, including Respondent . Under this

system, discipline is imposed " progressively , " o r sequentially,

except in specifi ed circumstances.

13 3 . As discussed above, the disciplinary sequence

established in article II, section M , appl ies , " [e]xcept in cases

which clearly constitute a real and immediate danger to the

District or the actions/inactions of the employee constitute such

clearly flagrant and purposeful violations of reasonab le school

rules and regulations " as to warrant deviating from this

sequence .

1 3 4 . As discussed above, here, Respondent ' s conduct

constituted a clear ly flagrant and purposeful violation of

Petitioner's rules and reg ulations . Accordingly, it is concluded

that Petitioner is not required to adhere to the progressive

discipline sequence set forth in article II, section M, of the

CBA, and is authorized to suspend Respondent without pay and to

terminate her employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Palm Beach County School

Board, enter a final order suspending Respondent , Ilissa Sanders,

without pay for 15 days and terminating her employment.

DONE AND ENTERED this 24th day of July , 2017, in

Tallahassee, 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 24th day of July , 2017.

ENDNOTES

1/ Starting in the 2015 - 2016 school year, the FSA replaced the

Florida Comprehensive Assessment Test as the statewide assessment

exam.

2 / The 2015 version of Florida Statutes was in effect when the

FSA for the 2015 - 2016 school year was admi nistered. Therefore,

the 2015 versions of chapters 1008 and 1012 apply to this

proceeding. Likewise, the versions of the Florida Administrative

Code rules and Petitioner's policies that were in effect at the

time of the alleged violations also apply to t his proceeding.

3 / The evidence establishes that Respondent did not review this

presentation with her students before administering the FSA.

Initially, an incorrect version of the PowerPoint presentation

was transmitted by electronic mail ( " email " ) to the third grade

teachers at 10:18 a.m. on the morning of March 28, 2016 ÏÏ the day

before the four - day FSA administration period began. At

11:32 a.m., the correct version of the presentation for third

grade students was sent by email; however, Respond ent did not

have an opportunity to review the presentation with her students

on March 28, and reviewing it with them on the morning of

March 29, before the FSA was administered, would have delayed

administration of the FSA in her class. In any event, the

Amended Petition does not specifically allege that Respondent's

failure to review this presentation constitutes a factual basis

for statutory, rule, or policy violations charged in this

proceeding.

4/ Testing boards are used to shield students' test pap ers in

order to prevent students from copying answers from each other's

test papers. The evidence indicated that for most testing

situations, the use of testing boards is not required and is in

the teacher's discretion, although there was testimony to the

effect that the school administration prefers that the teacher

obtain permission before using testing boards. Respondent

testified that she did not use testing boards in administering

the 2015 - 2016 FSA, and it was her understanding that using

testing boa rds was prohibited in administering the FSA. In any

event, the Amended Petition does not allege that Respondent

engaged in any conduct with respect to the use or non - use of

testing boards that violates any statute, rule, or school

district policy.

5 / See paragraph 20 , supra . Respondent attempted to procure, by

subpoena, Z.C. - B.'s appearance to testify at the final hearing;

however, Z.C. - B. did not comply with the subpoena by appearing at

the final hearing, and she did not testify at the final hearing.

6 / See note 4, supra .

7/ For example, the students' testimony varied with respect to

whether testing boards were or were not used during the FSA, and

whether paper did or did not cover the window of the classroom

door while the FSA was being admini stered. These are collateral

matters on which students may not have focused while in a

stressful, high - stakes testing situation ÏÏ much less recalled a

year later.

8/ The Amended Petition , page 1, charges Respondent with

violating section 1008.24(2). Section 1008.24 is titled "Test

Administration and Security; Public Records Exemption."

S ubsection (2) of s ection 1008.24(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." Subsection

(2) of s ection 1008.24 (2) does not establish a ny substantive

standard s of conduct that can be " violated " ; rather, this

subsection prescribes an applicable penalty i f section 1008.24 is

violated. Furthermore, in any event, DOAH la cks jurisdiction to

adjudicate or determine the potential imposition of criminal

sanctions. Accordingly, this Recommended Order does not address

any " violation " of section 1008.24(2).

9/ The Amended Petition, page 1, charges Respondent with

violating s ection 1008.36. This statute creates the Florida

School Recognition Program, a financial incentive program

available to public schools in Florida, provided certain

standards, specified in the statute, are met. This statute does

not establish any substant ive conduct standards that could be

" violated " by a teacher for purposes of imposing discipline on

that teacher. Accordingly, this Recommended Order does not find

or conclude that Respondent's conduct " violated " section 1008.36.

1 0 / Petitioner has char ged Respondent with violating School Board

Policy 3.02.4.f., which requires the employee " to take

responsibility and be accountable for his or her acts or

omissions." The evidence does not establish that in engaging in

the conduct with which she has been charged ÏÏ i.e., assisting

students in answering questions on the FSA ÏÏ Respondent failed to

take responsibility or to be held accountable for her actions.

To the extent Respondent has defended herself by denying that she

helped students on the FSA, that doe s not constitute a factual or

legal basis for determining that she has failed to take

responsibility or to be accountable for her actions. Indeed, if

that were the case, any time a teacher denied having engaged in

conduct alleged to violate applicable sta tutes, rules, and

policies, he or she also could be charged with failing to " take

responsibility and be accountable for his or her act or

omissions." This would effectively force the teacher to choose

between defending himself or herself at the peril of f acing the

additional charge of failing to " take responsibility and be

accountable, " or to forego defending himself or herself. For

these reasons, the undersigned finds t hat Respondent's conduct

did not violate School Board Policy 3.02.4.f.

1 1 / See note 8, supra .

1 2 / See note 9, supra .

13/ See note 10, supra .

1 4 / See note 10 , supra .

COPIES FURNISHED:

Helene K. Baxter, Esquire

Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard , Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

(eServed)

Nicholas Anthony Caggia, Esquire

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

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Robert Avossa, Superintendent

School Board of Palm Beach County

3300 Forest Hill Boulevard , Suite C - 316

West Palm Beach, Florida 33406 - 5869

Pam Stewart, 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.