17-004516TTS Hernando County School Board vs. Renee Koulouris Status: Closed Recommended Order on Tuesday, April 3, 2018.

Summary: Petitioner, Hernando County School Board, did not prove by a preponderance of evidence that Respondent cheated on the Florida Standards Assessment testing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 4516TTS

RENEE KOULOURIS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final for mal administrative hearing

was conducted in this case on January 31 , 2018 , in Brooksville ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings ( Ð DOAH Ñ ) .

APPEARANCES

For Petitioner: Thomas Martin Gonzal ez, Esquire

Nathan J. Paulich, Esquire

Thompson, Sizemore,

Gonzalez & Hearing , P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 3360 2

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for

Petitioner, Hernando County School Board (the Ð School BoardÑ or

ÐBoardÑ ) , to terminate the employmen t of Respondent, Renee

Koulouris . 1/

PRELIMINARY STATEMENT

A letter dated June 14, 201 7, informed Mrs. Koulouris

that the superintendent of schools would be recommending

termination of her employment at the next school board meeting.

Mrs. Koulouris timel y requested an administrative hearing to

contest the recommenda tion. The superintendent then revised her

recommendation to a suspension without pay until such time as

Mrs. KoulourisÓ case could be heard at DOAH. The School Board

accepted the superinte ndentÓs recommendation at its July 25 ,

2017, meeting. Mrs. KoulourisÓ request for a formal hearing was

referred to DOAH on August 10 , 2017 .

At the final hearing, the School Board called three

witnesses: Mrs. Koulouris; Scott Piesik, principal at Suncoa st

Elementary School (ÐSuncoastÑ); and A.S . , a former Suncoast

student who had been in Mrs. KoulourisÓ class. The School Board

offered 53 E xhibits into evidence which were accepted over

objection, but with the caveat that hearsay within the exhibits

would not be used solely as the basis for making a finding of

fact. Respondent called one witness: A.W., a nother former

student in Mrs. KoulourisÓ class at Suncoast . One Joint

E xhibit , comprised of 11 student deposition transcripts , was

also accepted into ev idence.

The parties advised the undersigned that a transcript of

the final hearing would be ordered. By rule, t he parties are

allowed ten days from the date the transcript i s filed at DOAH

to submit proposed recommended orders ( Ð PROs Ñ ) . The T ranscript

was filed at DOAH on February 22, 2018 . The parties then

requested and were granted until March 19 , 2018, to submit their

PROs. Each party timely submitted a P roposed R ecommended O rder,

and both parties' submissions were given due consideration in

the pr eparation of this Recommended Order.

FINDINGS OF FACT

1 . The School B oard is responsible for hiring,

supervising, and firing all employees within the Hernando County

School S ystem. This responsibility includes taking

administrative action when an employe e violates any rule or

policy of the Board.

2 . Mrs. Koulouris was hired by the School Board

approximately 15 years ago as a fourth grade teacher. At the

beginning of the 2016 - 2017 school year, she was transferred to a

fifth grade class in order to provid e assistance to a struggling

team. Her principal , Mr. Piesik, described Mrs. Koulouris as a

very strong teacher with very high standards. Mr. Piesik said

Mrs. Koulouris ran her classroom like Ða well - oiled machine.Ñ

Mrs. Koulouris has had no disciplinar y actions prior to the

incident at issue in the present proceeding.

3 . One of the duties of a fifth grade teacher is to

administer the Florida Standards Assessment (ÐFSAÑ) tests in

four different subject areas: Language Arts ; Math ; Writing ;

and Science. The tests are an integral part of a studentÓs

education and are used to determine placement in the next grade

level , i.e., which classes the student will be eligible for upon

advancement to middle school .

4 . It is imperative that FSA tests are adminis tered

correctly and securely. Extra measures are taken to ensure that

all students take the tests independently, without assistance

from anyone. Protocols are put in place to monitor students who

are taking the tests . Mrs. Koulouris attended all of the

required training prior to administering the tests. She also

signed the Test Administration and Security Ag reement, and the

Test Administrator Prohibited Activities Agreement,

acknowledging her understanding of the test protocols.

5 . Some of the FSA te sts are administered in the

classroom ; some are done in the computer lab. In either case,

the teacher administering the tests must diligently foll ow all

rules and procedures. Fairness and honesty is paramount. The

Board recommends the presence of a proc tor in addition to the

teacher when tests are given to certain sized classes. No

proctor was present when the tests at issue herein were

administered.

6 . Mrs. Koulouris is accused of in appropriately

assisting students during the FSA test s she administer ed in

the 2016 - 2017 school year. Those test s were taken over a

period of three months: The writing test was administered on

February 20 , 2017 ; the English test was given on April 19 and

22 , 2017 ; the Science tests were given on May 1 and 2 , 2017; and

the Math test was done on May 5 and 9 , 2017 . Du ring this same

time frame, Mrs. KoulourisÓ classes took a number of practice

FSA tests (as well as regular tests in various subjects).

7 . Mrs. Koulouris is alleged to have assisted students by

signaling them d uring the FSA tests to indicate that their

answer to a particular question m ight be wrong. This was

allegedly done by tapping a student or making a partic ular face

at them. Any student so notified would then be expected to

change their answer. It is als o alleged that Mrs. Koulouris

would stand behind students for long periods of time, tapping or

nudging them if they wrote or entered an incorrect answer. If

the allegations are true, Mrs. Koulouris would be in violation

of the test protocols and policies.

8 . Mrs. Koulouris adamantly and credibly denie d any such

behavior. She describes her ÐassistanceÑ to the students as

follows: She explains the test - taking process. She stresses

the need to concentrate and stay on track. She tells them that

if they d o not know an answer, to move on and come back to that

question later. She reminds them to be thorough and to take

their time, thinking about each question carefully. She

instructs the students to go back over their work when they

finish, time allowing. In order not to disturb the students

while they are testing, she prefers to remain at her desk rather

than walking around the room. However, she does move around the

room on rare occasions, or whe n she sees a student who is off

task, e.g., sleeping or ga zing out the window. She would

sometimes tap a studentÓs desk to get them back on track or, in

some instances, to wake them up. The testimony of the two

students who appeared at final hearing in this matter supports

Mrs. KoulourisÓ description of her nor mal process for

administering an FSA test.

9 . In the weeks leading up to the FSA tests,

Mrs. Koulouris would give a number of practice exams so that the

students w ould be come accustomed to the test format . She does

help students during the practice test s, but generally for the

purpose of keeping them focuse d , not to correct their answers .

She uses facial expressions and eye contact to provide that

assistance.

10 . Mrs. KoulourisÓ demeanor at final hearing gave

credence to her testimony. She seem ed ve ry sincere concerning

her actions and her entire testimony was credible.

11 . The allegations concerning Mrs. KoulourisÓ actions

during the 2016 - 2017 FSA testing cycle came about towards the

end of that school year. As she describe d it: Fifth grade

Ð gra duation Ñ occurred on May 18 , 2017, a Thursday, at which time

awards were handed out to students based on their performance.

The following day, Friday, Mrs. Koulouris was in a multipurpose

room tending children who would be picked up by their parents.

Oth er adult s were present in the room . Mr. F . , a fellow

Suncoast teacher whose son was a student in Mrs. KoulourisÓ

class, approached Mrs. Koulouris . Mr. F . angrily asked why his

son had not received a Ðgold awardÑ at the grad uation ceremony

held the day be fore. Mrs. Koulouris explained that the child

had not achieved the necessary grade point average to r eceive

a gold award . Mr. F . told her he was very Ðpissed off Ñ and that

if he found out that Mrs. Koulouris did something Ðon purposeÑ

to hurt his son , he would be extremely angry at her .

Mrs. Koulouris felt very intimidated by Mr. F . Ós demeanor and

his language. She was also very surprised, as she thought she

had a good relationship with the student and had been fair with

him. Mrs. Koulouris reported th e incident with Mr. F . to her

team leader and then to the principal , Mr. Piesik . Mr. Piesik

reprimanded Mr. F . for his behavior and told M r . F . not to have

any further contact with Mrs. Koulouris unless an administrator

was present . On the following Mond ay, Mr. F . went to Mr. Piesik

and reported that - Î according to statements made by Mr. F . Ós son

over the weekend - Î Mrs. Koulouris had improperly assisted her

students during the FSA tests.

12 . The timing of Mr. F . Ós allegation against

Mrs. Koulouris is ext remely suspect.

13 . The principal immediately undertook an investigation

to determine whether the allegation had any merit. He prepared

a list of questions to be pose d to Mrs. KoulourisÓ students.

Mr. Piesik went to the classroom on May 23 , 2017, and t alked

individually with several randomly selected students , asking

them the questions he had prepared in advance . (Mr. F . Ós son

was intentionally excluded from the group of students to be

questioned.) Some of the questions were very innocuous, i.e.,

Mr. Piesik asked about the school year and about the FSA testing

in general. He then pointedly asked, ÐDuring the FSA testing,

did your teacher do anything to help students get the right

answers?Ñ A few of the students apparently indicated that

Mrs. Koulouri s had s ai d something about making a face or nudging

them if they were off task, gave a wrong answer, or were making

mistakes. Others said that no such comments were made by

Mrs. Koulouris. Mr. Piesik compiled the studentsÓ answers to

his queries and cont acted two school district administrators:

Matthew Goldrick, supervisor for professional standards; and

Linda Pierce, supervisor of assessment and accountability. The

administrators suggested Mr. Piesik continue his investigation

of the matter.

14 . Ne x t , Mr. Piesik drafted a form containing three

statements and one question. The singular question on the form

was, ÐDid Mrs. Koulouris instruct you before FSA test [sic] that

if she tapped you or gave you a strange look it meant your

answer was incorrect and you needed to change it? Ñ He placed

Ð Yes Ñ and Ð NoÑ lines beneath the question to record the

st udentsÓ responses. The three statements drafted for inclusion

on the form were: (1) ÐYes I knew Mrs. Koulouris was helping

students on the test.Ñ (2) ÐMrs. K oulouris did NOT help me on

the test.Ñ (3) ÐMrs. Koulouris helped me on the test by giving

a tap or a look so I knew I needed to change my answers.Ñ

Beneath the question and statements were these words: ÐPlease

indicate which test she helped you on. Ma th Î Reading -

Science.Ñ

15 . On t he following day, May 24, 2017, Mr. Piesik

interviewed all 22 of the students who had underg one FSA testing

with Mrs. Koulouris , including Mr. F . Ós son . This time, the

principal used his newly created form containing the one

question and three statements . I f the student agreed with a

statement when it was read to him or her , Mr. Piesik would place

a check next to the statement . He would circle either yes or no

after asking the question, depending on the studentÓs answer .

The principal testified that Ðall 22 studentsÑ answered ÐYesÑ to

the question of whether Mrs. Koulouris said she would tap them

if their answer was wrong. Of those students, 12 said

Mrs. Koulouris was Ðhelping studentsÑ during the test, seven

indicated they had been helped, and 13 said Mrs. Koulouris did

not help them. However, some of the same students who said

their teacher was helping students when asked on May 24 , 2017 ,

had said just the opposite on May 23 , 2017 . The discrepancy

in their answers l eads to the c onclusion that the questions ,

as posed , were either unclear to the students or were

unintentionally leading in nature . By way of example, student

C.M.F., who h ad presumably answered ÐYesÑ to the question posed

on May 24 , 2014, as to whether M rs. Koulouris had helped

students during the FSA testing (since all students had

responded that way), said in her deposition that she

misunderstood the question Mr. Pi esik had asked her, that it

was Ðall a misunderstanding.Ñ She maturely opined that, ÐSo,

it is very commonly known that people cannot understand

something because it was worded a way that they thought it

would mean something else. And I though t what the principal,

Mr. Piesik, said, he had asked me if sh e had helped with the Î

if Mrs. Koulour is had helped with the test, but he didnÓt say

the specific FSA so I thought he was talking about tests in

general. And sometimes she would explain, like rephrase stuff

and explain it to us for the normal tests, but never for the

FSA.Ñ This sort of equiv ocation renders the studentsÓ

statements virtually uncredible.

16 . Two of the students testified at final hearing. Their

testimony was insufficient to adequately corroborate the hearsay

evidence found in the written forms .

17 . Student A.S. said at fina l hearing that Ðbefore testsÑ

Mrs. Koulouris would tell us she woul d tap students on the

shoulder if they were Ðway off trackÑ and you Ðneeded to get

back in the game.Ñ However, she did not remember any student

being touched during the FSA tests . A .S.Ós testimony was too

equivocal to establish whether or not Mrs. Koulouris had

assisted any students during the FSA tests. It is notable that

the School Board did not cite to any of A.S.Ós testimony from

final hearing, but instead relied upon the less certain and

unclear statements made by students in their depositions, which

are both hearsay in nature and less credible than live

testimony.

18 . Student A.W.Ós memory of the events was even more

clouded. She believes she remembers one student messing up the

o rder of his responses (i.e., answering up and down rather than

side to side on the answer sheet ) and Mrs. Koulouris help ed him

get realigned , but does not believe Mrs. Koulouris otherwise

assisted anyone during the tests. When confronted with her

response to the principalÓs form questions, A.W. simply could

not remember being asked the questions or how she responded. On

May 23 , 2017, Mr. Piesik had asked her the question from his

form , ÐDuring the FSA testing, did your teacher do anything to

help students get the right answers?Ñ She responded, ÐNo.Ñ

On May 24 , 2017, she answered Ð YesÑ to the question, ÐDid

Mrs. Koulouris instruct you before FSA test [sic] that if she

tapped you or gave you a strang e look it meant your answer

was incorrect and you needed to change it?Ñ At final hearing,

A.W. answered ÐNoÑ to the question, ÐDid you see or hear

Mrs. Koulouris make the statement, ÒIf I look at you funny or

strange or if I give you a tap on the shoulder, that means you

need to change your answers Ó?Ñ Again, t he testimony was

inconsistent and was not sufficient supp ort to corroborate or

affirm the information found in the forms . 2/

19 . T he truth of whether Mrs. Koulouris helped students on

the FSA tests cannot be established by PetitionerÓs evidence,

the sup posed student responses as tallied by Mr. Piesik, due to

their hearsay nature and various discrepancies .

20 . When considering how the allegation against

Mrs. Koulouris first arose, i.e., after her confrontation with

her fellow teacher, Mr. F . , and the equivocal testimony of the

students, there is insufficient basis to support the allegations

against her .

Findings of Ultimate Fact

21 . Under Florida law, whether charged conduct con stitutes

a deviation from a standard of conduct established by rule or

st atute 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 D CA 1985) . 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.

22 . The Board has not met its burden in this case of

proving that Mrs. Koulouris engaged in the conduct f or which she

was charged. Although Mr. Piesik testified as to his conclusion

based on interviews with students, that conclusion was not

corroborated by the studentsÓ testimony. The double hearsay

nature of the studentsÓ responses to Mr. PiesikÓs questions,

coupled with the vague recollections of students actually

testifying, is wholly insufficient to satisfy the BoardÓs burden

of proof.

23 . It is clear Mrs. Koulouris gave her students

instructions about how t o take the FSA tests, administered

practice test at which the stric t FSA rules were not applicable,

monitored the tests and redirected students who were sleeping or

otherwise distracted, and sometimes walked around the classroom.

But the evidence is woefu lly short of proving wrongdoing or

improper assistance to students. Notably, the deposition

transcripts offered into evidence jointly by the parties were

not helpful to the finder of fact. The studentsÓ responses to

questions were vague and disjointed. Each of the parties

interpreted the studentsÓ statements differently, each seeming

to think the statements supported their position in this matter.

Besides the obvious hearsay nature of the evidence, the

statements were nebulous, and lacking clarity or pe rsuasiveness.

The students contradicted each other, some could not even

remember where they were sitting during testing, and their

memories seemed, at best, c onfused.

CONCLUSIONS OF LAW

24 . DOAH has jurisdiction over this matter pursuant to

sections 120.569 and 120.57, Florida Statutes, and pursuant to a

contract between DOAH and the Board. Unless specifically stated

otherwise herein, all references to Florida Statutes will be to

the 2017 codification.

25 . This is a disciplinary proceeding in which the Board

seeks to terminate Mrs. KoulourisÓ employment for violating

section 1008.24, Florida Statutes ; Florida Administrative Code

Rules 6A - 10.042 and 10. 081 ; and School Board Policy 6.301.

Violations of these statutes, rules and policies, if proven,

w ould constitute just cause for the Board to terminate

Mrs. KoulourisÓ employment as a teacher. See § 1012.33, Fla.

Stat.

26 . To terminate a teacherÓs employment, the Board must

prove that the teacher committed the acts alleged; that those

acts violate t he laws, rules, and policies at issue; and that

violation of those statutes, rules, and policies constitutes

just cause for her dismissal. § 1012.33(1)(a) and (6), Fla.

Stat.

27 . The Board has the burden of proof in this matter as it

is the party assert ing the affirmative of the issue. Antel v.

DepÓt of of ProfÓl Reg. , 522 So. 2d 1056 (Fla. 5th DCA 1988);

Balino v. DepÓt of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977).

28 . The standard of proof is preponderance of the

evidence . See McNeil v. Pinellas Co. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DCA 1996) ; Dileo v. Sch. B d . of Dade Cnty. , 569 So.

2d 883 (Fla. 3d DCA 1990).

29 . Section 1008.24 , which Mrs. Koulouris allegedly

violated, states in pertinent part:

(1) A person may not knowingly and

willfully v iolate test security rules

adopted by the Stat e Board of Education

for man datory tests administered by or

through the State Board of Education or the

Commissioner of Education to students,

educators, or applicants for certification

or administered by schoo l distric t s pursuant

to s. 1088.22, 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

direc tions specified in the test

administration manuals; or

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

assist in, or encourage any of the acts

prohibitive in this section.

30 . Pursuant to the foregoing findings of fact, it is

concluded that the Board did n ot meet its burden of proving that

Mrs. Koulouris violated section 1008.24 .

31 . Rule 6A - 10.042 states in relevant part:

(1) Tests implemented in accordance

with the requirements of Sections . . .

1008.22 . . . F.S., shall be maintained and

administere d 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 answ ers to questions shall

be not be interfered with in an y 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

result in the inaccurate measurement or

reporting of the examineesÓ achievement.

32 . Again, pursuant to the findings of fact above, it is

c oncluded that the Board did not prove Mrs. Koulouris violated

the rules regulating administration of FSA tests.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Hernando County School Board , finding no cause to

terminate the employment of Respondent, Renee Koulouris, as

there is insufficient evidence that she violate d statutes, rules

or policies regarding the administration of FSA tests .

DONE AND ENT ERED this 3 rd day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 2018 .

ENDNOTES

1/ As noted in its Proposed Reco mmended Order, the correct

name for Petitioner is actuall y ÐThe School Board of Hernando

County.Ñ Inasmuch as the Board has been identified as set forth

in the style of the case since the case was filed at DOAH, this

error is simply noted herein without formally changing the

style.

2/ Compare the testimony of the students in this case with

that of students in two similar DOAH proceedings: Palm Beach

Co. Sch. B d. v. Ilissa Sanders , Case No. 17 - 0615TTS ( Fla.

DOAH July 24, 2017); Palm Beach Co. Sch. B d. v. Maria Marrero -

Rios , Case No. 17 - 0614 TTS ( Fla DOAH Sept . 1, 2017). In those

cases, the studentsÓ testimony was specific as to particular

ways in which their teacher helped them during the FSA testing.

Th os e students also tended to corroborate one an other Ós

statements, which were much more consistent in nature .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater , Florida 33761

(eServed)

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Nathan J. Paulich, Esquire

Thompson, Sizemore, Gonzalez & Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Matthew Mears, General Counsel

D epartment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart , Commissioner of Ed ucation

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Lori M. Romano, Ph.D ., Superintendent

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

NOTI CE 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 t his case.