18-005791TTS Broward County School Board vs. Latunya Gibbs Status: Closed Recommended Order on Friday, March 6, 2020.

Summary: Termination of 3rd grade teacher's employment is warranted based on her misconduct, insubordination, incompetency, willful neglect of duty, and violation of School Board Rules. Teacher falsified assessments and student work portfolios.

P RELIMINARY S TATEMENT

On October 2, 2018, at its scheduled meeting, the Broward County School

Board ("BCSB" or "Board" ) took action to suspend and terminate Gibbs from

her teaching position at Mirror Lake Elemen tary School ("MLE"). Gibbs

timely requested an administrative hearing. The matter was referred to the

Division of Administrative Hearings ("DOAH") on November 1, 2018, to

assign an administrative law judge to conduct the final hearing. The final

hearing wa s held in Fort Lauderdale, Florida, on June 20, 2019. The hearing

was reconvened in Fort Lauderdale, Florida, on September 12, 2019. The

hearing was concluded on November 26, 2019, by video teleconference.

BCSB presented the testimony of the following wi tnesses: Marlen Veliz,

Hend Hafez, Mildred Grimaldo, Gigi McIntire, Osvaldo Hernandez, and

Marjorie Fletcher. School Board Exhibits 1 through 16, 18 through 23, 26

through 28, 30 (the last page only), 31 throug h 38, 40 through 46, 49

through 76, and 78 wer e admitted into evidence.

Gibbs testified on her own behalf. Respondent's Exhibits 1 and 2 were

admitted into evidence.

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation,

which contained certain stipulated facts. Those stipulated facts have been

incorporated herein to the extent they were deemed relevant.

The final hearing T ranscript was filed on December 12, 2019. The parties

requested several extension s of the time within which to file proposed

recommended orders, which were gra nted. The parties timely filed proposed

recommended orders, which were given consideration in the preparation of

this Recommended Order. Unless otherwise indicated, all statutory references are to be versions in effect at the time of the alleged violations .

F INDINGS OF F ACT

1. Petitioner, BCSB , is located at 600 Southeast Third Avenue,

Fort Lauderdale, Florida . BCSB is in charge of the Broward County School

District ("the District").

2. Robert W. Runcie is the Superintendent of BCSB. The Superintendent

is statutorily obligated to recommend the placement of school personnel and

to require observance with all laws, rules , and regulations. He is authorized

to report and enforce any violation thereof, together with recommending the

appropriate disciplinary acti on against instructional personnel employed by

the Board.

3. Gibbs is employed by BCSB as a teacher pursuant to a Professional

Services Contract, issued in accordance with s ection 1012.33(3)(a), Florida

Statutes. She was first hired by BCSB on August 24, 1993.

4. Gibbs holds a Florida Educator's Certificate in Elementary Education.

5. The Superintendent recommended that Gibbs be terminated from her

employment with BCSB . On October 2, 2018, the Board adopted the

Superintendent's recommendation. BCSB provi ded all notice and process that

was due as it pertains to the investigation and procedural requirements

through the Board's adoption of the Superintendent's recommendation for

termination.

6. Gibbs was assigned as a teacher at MLE for school years 2015 - 16,

2016 - 17 , and 2017 - 18. In 2015 - 16, Gibbs was assigned to teach second grade.

On September 2, 2015, she was placed on administrative reassignment due to

a personnel investigation. She remained on administrative reassignment for

the remainder of the school year.

7. During the 2016 - 17 school year, Gibbs was assigned to teach third

grade at MLE. Gibbs had 18 students in her class.

8. On May 24, 2017, Gibbs received notice of an investigation into an

allegation that she falsified records pertaining to student evaluations and

achievements for promotion to the fourth grade. These records included

student assessments for the Benchmark Assessment System and third grade

Portfolios. On June 19, 2017, Gibbs received notice that the investigation was

expanded to inclu de an allegation that she submitted falsified documents to

utilize FMLA leave and that she falsified a training certificate.

Fabricated BAS Assessments

9. The District uses the Fountas & Pinnell Benchmark Assessment

Systems ("BAS"). It is used to determi ne a student's independent,

instructional, and frustration reading levels. BAS assessments are conducted

one - on - one by the teacher. In part 1 of the assessment, the student reads

aloud and talks about the system's leveled fiction and nonfiction books, whil e

the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the

text.

10. BAS assessment s are done for all students in grade levels

K indergarten through 3, and for those student s in grades 4 and 5 who score

a one or two on the Florida Standards Assessment ("FSA").

11. For BAS, there are three assessment periods each school year. The

Distr ict deadline for the third assessment period was May 26, 2017. MLE set

an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met.

12. On May 11, 2017, Gibbs was provided with a substitute so she could

ha ve the opportunity to complete BAS assessments.

13. After school on Friday, May 12, 2017, there was a Response to

Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz") ,

MLE 's Principal, that she had completed the BAS assessments for two o f her

18 students. Gibbs stated that she was confident that she would be able to

complete all student assessments by the May 19 deadline, and that she did

not need a substitute for an additional day.

14. Gibbs was at school on Monday, May 15, 2017, but th en was absent for

an extended period. S he was absent on May 16 through 19, and 22

through 24. Principal Velez asked Ms. Shamequia Wright ("Wright") , a third

grade teacher and union steward, and Ms. Hend Hafez ("Hafez") , an MLE

Literacy Coach, to help asses s Gibbs' students.

15. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin

("Hennequin") , third grade team lead, entered Gibbs' classroom to look for the

students' BAS folders. They could not find the BAS folders, and only found

blank scoring she ets. They held up a BAS folder and asked the students

where they could find the folders. The students informed Hennequin and

Wright that they had never seen the folders. Hennequin and Wright left

Gibbs' classroom to get their own materials so they could st art assessing

students. Wrigh t proceeded to assess Gibbs' students on May 19 and May 22. ,

2017

16. On May 23, 2017, Hafez was asked to gather the BAS assessments

that Wright had completed. Wright told Hafez that the assessments were on

the round table in Gibbs' classroom. Hafez collected the BAS materials from

the round table in Gibbs' classroom and provided them to the office.

17. Upon trying to enter the BAS scores into the BASIS system, it was

discovered that Gibbs had entered all of the students' scor es on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for

16 students on that day. Principal Veliz knew this was an impossible task

and, therefore, questioned the validity of the scores. Principal Veliz asked the

Dist rict for a review.

18. By May 26, 2017, the office ha d received all of the protocols -- the

student BAS folders conta ining the data for all three of the asses sment

periods -- from all of the third grade teachers with the exception of Gibbs. The

Assistant Prin cipal, Joan Rosa ("Rosa") , made an announcement over the

P . A . reminding all of the teachers who had not submitted their protocols to do

so prior to 3:00 p.m. Gibbs never brought any of the pr otocols for any of the

three assessment periods to the office.

1 9. On May 26, 2017, Mildred Grimaldo ("Grimaldo") , Director of Literacy

from the District, went to MLE to conduct a review and reassess Gibbs'

students. The team conducted a re assessment of five students. Hafez

re assessed the remaining students. It was fou nd that the scores entered in

BASIS on May 15 , 2017, by Gibbs did not align with the reassessments

completed by Grimaldo's team or Hafez.

20. Of the 18 students in Gibbs' class, only six scored a three or above on

the FSA. Six students scored a two and fi ve students scored a one. One

student was absent.

21. Gibbs was scheduled for mandatory BAS training on January 13,

2017, but she did not attend. Gibbs received a verbal reprimand for missing

the training. Gibbs received training as part of a calibration conversation

that took place on April 4, 2017. The Literacy Coach also had previously

shared (November 2016) a link to a Brainshark presentation , which included

suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs di d not review the Brainshark presentation .

Incomplete Portfolios and Falsified Promotion Testing

22. Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1

indicate that any student in third grade who does not meet the reading

promotion criteria, which is a two or higher on the FSA, can be promoted to

fourth grade based on good cause promotion criteria. The good cause

promotion criteria consist s of the completion and passing of a third grade

Portfolio as an alternative to a passing FSA score.

23. All third grade teachers are required to have their students complete

the third grade Portfolio. Student Portfolios are based on work completed by

the students in connection with what they are being taught by the teacher.

The teachers are to teach the Sta te standards. The Portfolios gauge students'

mastery of the reading information standards, reading literature standards ,

and language standards.

24. There are eight cycles that were put together by the District to help

teachers teach the reading informati on standards, reading literature

standards, and language standards. Each cycle has certain tasks that

students must complete. The tasks are to be graded by the teachers and kept

as part of the Portfolios. The grade is based on a four point system, with one

being the worst and four being the best.

25. If a st udent does not score a three out of four on a particular standard,

the student is then given an additional passage and multiple choice test. The

student m ust receive at least a 70% on the multiple choic e test to show

proficiency in the standard.

26. Scores for the Portfolio tasks as well as the multiple choice test, if

necessary, are recorded on a form entitled Third Grade Assessment Portfolio:

Cumulative Student Record Form ("Portfolio Record Form").

27. MLE had an in - house deadline of May 1, 2017, to submit all Portfolios

along with the summary sheets. The District's deadline was May 5, 2017.

28. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing

the last tasks for the Portfolios.

2 9. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on

or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also

reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form

indicated a perfect score, four ou t of four, for every one of her 18 students.

Additionally, even though every student allegedly received a perfect score,

Gibbs also had a score for the multiple choice test for every standard for

every student. Had a student actually received a perfect sco re on the tasks,

the multiple choice test would have been unnecessary. This raised a red flag

for Veliz.

30. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs'

box of Portfolios. The box was sealed, almost completely, with duct tape. As a

team, Veliz, Hafez , and Rosa opened Gibbs' Portfolio box. They spot checked a

few of the students' work and noticed significant discrepancies in what Gibbs

recorded and the student product. Hafez and Rosa were asked to review all of

Gibbs' students' Por tfolios. It took a week to review all of the Portfolios. The

team fou nd errors that included, but were not limited to: incorrect grading;

the sample answer was provided (i.e., the teacher answer key); missing tasks;

missing test items; task given multiple times despite mastery of the task;

blank or incomplete tasks; discrepancy in time frame of dates; items done as

homework as opposed to class work; missing multiple choice sheets; and the

inclusion of non - summative task items.

31. Veliz reached out to Ms. Nicole Mancini, Director of Elementary

Learning, to have someone from the District rescore the Portfolios. Dr. Teri

Acquavita and Ms. Shellie Gory ("Gory") , supervisors for the District,

conducted a District review. There were discrepancies between the Dis trict

review and Gibbs' grading.

32. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data

along with the alternative portfolio multiple - choice assessments. Gibbs

submitted the monthly data. Gibbs did not submit the multiple - choice

alternative d ata, and has never submitted the multiple - choice data. However,

on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple - choice tests.

33. Gibbs told all of the parents that their students would be promoted.

Unfortunatel y, five of Gibbs' students scored a one on the FSA. The Portfolios

should have been used as good cause promotion criteria for those students,

but they were too deficient. The students were promoted and placed into

intervention programs the following year.

Falsified Test Administrator Certificate

34. School year 2016 - 17 was the first year that the FSA was to be given to

students via computer. All MLE teachers were directed by Veliz to complete a

Test Administrators' ("TA") Certification Course from America n Institutes for

Research ("AIR"). The FSA was given on April 27 and 28, 2017.

35. On February 7, 2017, the school was scheduled to take an

infrastructure practice test to make sure the school's system had the capacity

to handle the testing by computers. On February 6, 2017, Gibbs received

assistance from School Counselor, Ms. Gigi McIntire ("McIntire") , and the

Micro - Tech, Mr. Osvaldo Hernandez ("Hernandez") , to create her password

and receive a link for the infrastructure practice test. Gibbs' class did not

take the infrastructure test.

36. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her

class had not completed the infrastructure test and the importance of

practicing with her students prior to the FSA. During the meeting, Gibbs

cla imed that she had not been given the link and she had not received the

password until the very end because Hernandez had helped all other teachers

and left her for last. This was not true, however, because Gibbs received her

password and the link on Februa ry 6 , 2017 .

37. Gibbs submitted a TA Certificate on March 13, 2017, which had her

name handwritten on it and which did not state a date of completion of the

course. The certificate looked as though it was a screen shot from the

computer. The certificates that were submitted by all other teachers looked

different. They had their names typed on the certificate and the date that the

course was completed.

38. Gibbs was supposed to have her students practice taking the test on a

computer. The expectation was t hat students would have done this multiple

times before having to take the FSA.

39. On April 24, 2017, Veliz approached some third grade students and

asked them how their computer practice test was going. Several students from Gibbs' class stated that the y had not practiced yet because their teacher

did not know how to log in. Students from other classes stated that they had

practiced several times.

40. This alarmed Veliz. Veliz asked McIntire to provide copies of all the

TA Certificates. Veliz saw that t he only certificate with a name handwritten

in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony

Nembhard ("Nembhard") confirmed that Gibbs had only used her password to

log in on February 6, 2017, and had not logged in at any other time.

N em bhard provided Veliz with Case No. 545991, and showed Veliz how to

print a report indicating that Gibbs had not completed the course.

41. It was uncovered that a teacher could scroll through the course

without actually taking it and get to a "Congratula tions!" page that looked

like what Gibbs had submitted as her certificate. A screen shot of this page

could be printed out.

42. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to

assist students in practicing prior to the test. None of the students had any

idea how to log in, did not know which browser to use, and every single one of

them indicated that it was their first time accessing this practice test. The

students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When

Gibbs was asked if she had her students do the practice test, Gibbs indicated

she had done everything she needed to do.

43. Gibbs' defense, that her printer was not functioning properly to pr int a

complete TA Certificate, is not credible. Gibbs apparently printed a TA

Certificate in which everything printed perfectly, except her name, which she

handwrote. She offered no explanation for failing to provide instruction to her students on how to u tilize the computer so they would be ready to take the

FSA.

Falsified FMLA Certification of Healthcare Provider

44. Gibbs sought and was granted Family Medical Leave Act ("FMLA")

intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave

eve ry year thereafter from 2013 to 2015 , and was approved by Ms. Marjorie

Fletcher ("Fletcher") of the BCSB Leaves Department on each instance.

45. Gibbs submitted a FMLA certificate of healthcare provider form from

ARNP Princy Bhat - Bhardwaj ("ARNP Princy"), certifying Gibbs' need for

another FMLA leave for the period of November 15, 2015, to November 15,

2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care

provider. The frequency and duration section of the form on paragraph 11

were left blan k. In order to process Gibbs' leave request, Fletcher faxed this

form back to Metcare to request that it fill in the frequency and duration

section of the form.

46. The form was faxed back to Fletcher with the frequency and duration

section of the form fil led in. However, Fletcher noticed that the beginning and

ending dates of the certification on paragraph nine, as well as the date of the

signature on the bottom of the form, were whited out and written over.

Fletcher called Metcare to verify their fax numb er which was fax - stamped at

the top of the form. A person at Metcare could not verify the phone number

listed on the top of the form.

47. ARNP Princy confirmed to Fletcher that the handwritten portion of

the date of the signature was not her handwriting. A RNP Princy also

confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified

that if she signs a form, it is her practice to date the form at the same time.

According to ARN P Princy, Metcare's procedure for filling out and executing

FMLA certifications is directed by the patient. In some instances, they fill out

and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is hande d back to the patient to submit to their

employer.

48. Gibbs submitted another FMLA certificate of healthcare provider from

ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29,

2016, to June 10, 2016. On May 23, 2017, legal counsel fo r Metcare,

confirmed to the Leaves Department that it had not completed a FMLA

cert ificate for Gibbs since January 2015.

49. It is evident that one or more FMLA forms submitted on behalf of

Gibbs were falsified. However, no evidence was presented that the documents

were altered by Gibbs or that they were ever in her possession prior to their

submission by someone to the Leaves Department. Although no one other

than Gibbs would seemingly have a motive to modify these forms, Gibbs

denied falsifying them. Whil e Fletcher certainly had a legitimate basis to

question the validity of these forms, there was insufficient evidence to

demonstrate that Gibbs knowingly submitted false information to secure

on going intermittent leave.

Prior Discipline

50. Gibbs has prior disciplinary actions consisting of two verbal

reprimands and several corrective actions (i.e., summary memoranda).

51. She received a verbal reprimand on January 27, 2017, for failing to

attend the scheduled Professional Learning Community on BAS at McNa b

Elementary on January 13, 2017. She received another verbal reprimand on

December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement.

52. Gibbs received received summary memos concerning: the need to

attend all scheduled afternoon meetings; the need to promote positive

interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period;

the need to closely monitor and track student progress; the need to adhere to

timelines and complete school - wide assessments in a timely manner ; the

need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for

intentionally exposing students to embarrassment with references to

boyfriends and girlfriends; the need the adhere to timelines and complete

school - wide assessment s in a timely manner; and the need to use guided

reading during the reading block.

53. O n September 2, 2015, Gibbs was placed on administrative

reassignment due to a personnel investigation. She remained on

administrative reassignment for the remainder of the school year.

54. The personnel investigation involved two issues. One issue was abo ut

conduct that occurred during the 2014 - 15 school year when she was assigned

to Walker Elementary as a VPK teacher. The alleged conduct was that she

charged parents a fee if their child was picked up late from VPK and that she

planned on charging a fee fo r the end of school graduation ceremony. The

other issue was for conduct that occurred during the 2015 - 16 school year. It

was alleged that on August 26, 2015, she pushed a student out of the

classroom and pinched his back.

55. Based on these two incidents , the Education Practices Commission

issued a letter of reprimand to Gibbs, which is part of her BCSB personnel

file.

Ultimate Findings of Fact

56. The evidentiary record overwhelmingly reveals a pattern by Gibbs of

misconduct, gross insubordination, incom petence, willful neglect of duty, and

violation of school board policies. The evidentiary record amply supports

suspension without pay and termination of her employment for just cause.

C ONCLUSIONS OF L AW

57. DOAH has jurisdiction over the parties to and t he subject matter of

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

58. Because BCSB, acting through the Superintendent, seeks to terminate

Gibbs' employment without pay, which does not involve the loss of a license or cert ification, BCSB has the burden of proving the allegations in its

Administrative Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v.

Pinellas C ty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of

Dade C ty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade

C ty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

59. Section 1012.33(1)(a) includes the following definition of just cause to

terminate a teacher' s professional services contract:

Just cause includes, but is not limited to, the

following instances, as defined by rule of the State

Board of Education: immorality, misconduct in

office or being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral

turpitude.

60. The Administrative Complaint alleges the following: Gibbs committed

misconduct in office; incompetency; gross insubordination; willful neglect of

duty; violation of School B oard Policy 4008; violation of School Board Policy

6000.1; and violation of School Board Policy 4.9. 1

61. 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); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

62. Section 1001.02(1) , Florida Statutes, grants the State Board o f

Education authority to adopt rules pursuant to sections 120. 536(1)

and 120.54 to implement provisions of law conferring duties upon it.

Misconduct in Office

63. Consistent with its rulemaking authority, the State Board of

Education has defined "miscondu ct in office" in Florida Administrative Code

R ule 6A - 5.056(2), which reads in pertinent part as follows:

1 Although the Administrative Complaint charges Gibbs with violating policy 4.9, policy 4.9

does not set fo rth standards of conduct which can be v iolated. Rather, it contains BCSB 's

progressive discipline system which provides recommended punishments for different

possible offenses. Accordingly, these Conclusions of Law contain an analysis of the

application of Rule 4.9 to Gibb's conduct rather than an assessment of whether the rule was

violated.

(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 adopte d in Rule

6B - 1.001, F.A.C.;

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Florida as

adopted in Rule 6B1.006, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student' s learning

environment; or

(e) Behavior that reduces the teacher's ability or his

or her colleagues' ability to effectively perform

duties.

64. BCSB met its burden of demonstrating by a preponderance of the

evidence that Gibbs' conduct constituted miscon duct in office b ecause it met

subsections (a) through (e) of the definition of misconduct.

65. The ethical principles previously contained in Florida Administrative

Code Rule 6A - 10.080, Code of Ethics of the Education Profession in Florida,

are now contain ed in subsection (1) of r ule 6A - 10.081, Principles of

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

10.081(2) states that a violation of any of the following disciplinary principles

"shall" subject the individual to revocation, susp ension, or other penalties:

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the student from conditions harmful to learning

* * *

(c) Obligation to the profession of education requires that the individual:

1. Shall maintain honesty in all professional

dealings.

* * *

8. Shall not submit fraudulent information on any document in connection with professional activities.

66. Gibbs engaged in misconduct in office by failing to protect her s tudents

from conditions harmful to learning , by failing to correctly complete BAS

assessments of her students. BAS assessments are a running record of a

student's reading ability. By failing to assess a student's reading ability, a

student's progress canno t be recorded properly and the level of instruction

required of a particular student will be misapplied by that student's future

teachers.

67. Despite Gibbs' claims of not knowing how to conduct the BAS

assessments, Gibbs failed to avail herself of any of the numerous resources provided by the District and MLE. This includes failing to attend any District

BAS assessment training sessions despite the numerous sessions that were

offered, failing to access the BAS training materials offered by the publishers

o f the system, failing to access any of the on line materials provided by the

District, and failing to seek help from those on her team or the Literacy

Coach at MLE. As a direct result, this put her students at a disadvantage

and caused harm to the condition s of their learning.

68. Gibbs engaged in misconduct in office by failing to maintain honesty in

representing completion of her students' BAS assessments and submitting

fraudulent grading of her students' BAS assessments. Gibbs represented to

Veliz that sh e would complete her students' BAS assessments by the deadline

imposed by Veliz at MLE. She failed to adhere to the deadline and failed to

assess all of her students despite being offered a substitute teacher so that

she could solely focus her time on BAS assessments. Only blank BAS scoring

sheets were found in her classroom when Gibbs was absent for an extended

period of time. Gibbs' students informed Hennequin and Wright that they

had never seen the folders when they came to search for them.

69. Gibbs the n represented that she had completed the BAS assessment of

her students by inputting scores into the computer system that were false.

Upon reassessment of Gibbs' students, it was found that the scores entered

on May 15 , 2017, by Gibbs did not align with th e reassessments completed by

Grimaldo or Hafez. There were significant discrepancies between Gibbs'

scores and the scores computed by Hafez or Grimaldo that are not rationally

attributable to subjectivity in scoring. For some of the students, there were

di screpancies of two entire grade levels.

70. Generally, there is a high degree of correlation between the BAS

scores and the FSA scores. However, Gibbs graded a student at a fourth

grade level, but the student received a score of one on the FSA. When

reasse ssed by Grimaldo, the student read at a second grade level, which is

consistent with a FSA score of one. Whether the deficiencies in the BAS

assessments were due to intention or incompetence on the part of Gibbs, it is without doubt that the assessments we re incorrect.

71. Similarly, Gibbs engaged in misconduct in office by failing to protect

her students from conditions harmful to learning by failing to complete the

Portfolios of her students. Fla. Admin. Code R. 6A - 10.081(2)(a)(1 . ).

72. G ibbs' Portfolio Record Form indicated a perfect score, four out of four,

for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple

choice test for every standard for every student. Had a student actually

received a perfect score on the tasks, the multiple choice test would have been

unnecessary. Moreover, the scores in the multiple choice tests were

mathematically impossible. 2 Once again, regardless of whether Gibbs

intentionally f alsified the scores or did it out of incompetence, there is no

question that the Portfolio scores were false.

73. Gibbs' explanation for Portfolio deficiencies, that she was not

adequately trained as a former kindergarten teacher to compile the

thir d grade Portfolios, lacks credibility. Gibbs admittedly never reviewed any

of the Brainshark tutorials to teach herself how to properly administer

student Portfolios. She also never used the Adobe connect sessions or

contacted Gory to request assistance in admini stering student Portfolios.

Gibbs did not even avail herself of help from her team or the Literacy Coach

at MLE for direction as to how to complete the Portfolios. As a direct result,

this put her students at a disadvantage and caused harm to the condition s of

their learning.

74. Gibbs also engaged in misconduct in office by failing to protect her

students from conditions harmful to learning by failing to complete the TA Certification Course. All MLE teachers were directed by Veliz to complete the

TA Certif ication Course from AIR in order to proctor the FSA test for

students. Gibbs failed to complete this course. AIR confirmed that Gibbs had

only used her password to log in on February 6, 2017, the day her password

was created for her by McIntire, and had no t logged in at any other time. As a

direct result, this put her students at a disadvantage and caused harm to the conditions of their learning because she would not be able to effectively guide them during the FSA test.

75. Gibbs engaged in misconduct in o ffice by failing to maintain honesty in

representing completion of a TA Certification Course. As described above,

2 The percentages listed for the multiple choice test on Gibbs' Portfolio Record Forms did not

mathematically equate with the number of questions in the passages. Every single multiple choice test in all

19 passages contain exactly seven multiple choice questions that are to be scored. Gibbs gave scores that

varied from 70%, 75%, and 80% for all 19 passages. The scores given by Gibbs on each passage for each

student are mathematically impossible.

Gibbs never took the TA Certification Course. Yet, she represented she had

completed the course by submitting a false completion certificate.

7 6. Gibbs engaged in misconduct in office by failing to protect her students

from conditions harmful to learning by failing to practice with her students

on their assigned computers for the FSA test. As a direct result, this put her

students at a disadvant age and caused harm to the conditions of their

learning because they would not be prepared to take the state mandated FSA

test on their computers.

Incompetency

77. Rule 6A - 5.056 defines incompetency and provides in pertinent part:

(3) "Incompetency" means the inability, failure or

lack of fitness to discharge the required duty as a

result of inefficiency or incapacity.

(a) "Inefficiency" means one or more of the

following:

1. Failure to perform duties prescribed by law;

2. Failure to communicate appropri ately with and

relate to students;

3. Failure to communicate appropriately with and

relate to colleagues, administrators, subordinates,

or parents;

4. Disorganization of his or her classroom to such

an extent that the health, safety or welfare of the stu dents is diminished; or

5. Excessive absences or tardiness.

(b) "Incapacity" means one or more of the following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational background; or

4. Lack of adequate co mmand of his or her area of

specialization.

78. Gibbs' failure to complete BAS assessments, maintain student

Portfolios, acquire her TA Certification to administer the FSA, and her

failure to train her students how to use the computer for the FSA all fall

within the definition of inefficiency and therefore, incompetence. Gibbs

clearly failed to perform her duties required by law. These same actions

demonstrate "incapacity" because she lacked command of her area of

specialization.

79. Gibbs ' job performance was substandard and she lacked the ability

and skills to proficiently conduct duties such as: evaluating student reading

levels and recording the same; following the curriculum guidelines and

recording student progress through their Portfolios; and provid ing training to her students on how to use the computer to take the FSA. Gibbs failed to

avail herself of any of the numerous opportunities for training or assistance with any of these skills. Accordingly, Gibbs' ineffici ency and incapacity

constitute viol ations of rule 6A - 5.056(3)(a) and (b).

Gross Insubordination

80. Rule 6A - 5.056(4) defines "gross insubordination" as "the intentional

refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the

performance of the required duties."

81. BCSB demonstrated , by a preponderance of the evidence , that Gibbs'

conduct constitutes gross insubordination in relation to her failure to adhere to the deadlines to complete BAS assessm ents, the Portfolios, and her

repeated failure to attend trainings.

82. The District deadline for the thir d BAS assessment period was

May 26, 2017. MLE set a deadline of May 19, 2017, to insure that the District

deadline would be met. Gibbs was provided w ith a substitute teacher so that

she could focus her time on completing the BAS assessments. She did not use

that time to complete BAS assessments. Just one week before the MLE

deadline, Gibbs stated that she had only com pleted a BAS assessment for

two of her 18 students. She was at MLE for one more day, then absent for

seven days and did not complete the third BAS assessment period for her

remaining 16 students . Instead, Hafez and Wright, had to assess Gibbs'

students.

83. By May 26, 2017, the office had r eceived all of the protocols -- the

student BAS folders containing the data for all three of the assessment

periods -- from all of the third grade teachers with the exception of Gibbs. Rosa

made an announcement over the P .A. reminding all of the teachers who h ad

not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought

any of the protocols for any of the three assessment periods to the office, in

defiance of an order by MLE administration to do so. Gibbs failure to adhere to the timeline to complete the BAS assessments and failure to provide the

student BAS folders constitutes gross insubordination.

84. MLE had an in - house deadline of May 1, 2017, to submit all Portfolios

along with the Portfolio Record Forms. The District's deadline was May 5,

2017. Gibbs never submitted the multiple - choice assessments, and has never

submitted the multiple - choice data.

85. Gibbs ' repeated conduct in failing to attend any BAS training session

also constitutes gross insubordination. Gibbs was scheduled for mand atory

BAS training on January 13, 2017, but she did not attend. She received a

verbal reprimand for missing the training. Hafez shared a link to a

Brainshark presentation which included suggested best practices from

Fountas & Pinnell and those implemented in the District. Gibbs did not

review the Brainshark presentation . Gibbs also failed to take advantage of

any other BAS training including signing up for a BAS training class on My

Learning Plan. Calibration conversation was also provided by the District t o

schools as a follow - up support to assist in administering BAS. Gibbs did not

attend the calibration conversation or the BAS training that took place at

MLE.

86. As Gibbs admits, she did not attend any BAS trainings. She admits

that although three to four different classes were given every week on BAS

training by the District, she did not sign up for any of the sessions. She also

admits that she missed the BAS training session at McNab Elementary and

did not sign up for another workshop by logging onto My Learning Plan. She

also admits that she never logged onto training sessions with the access code

provided by the publishers of the BAS system.

Willful Neglect of Duty

87. "'Willful neglect of duty' means intentional or reckless failure to carry

out require d duties." Fla. Admin. Code R. 6A - 5.056(5).

88. As described above, Gibbs either intentionally or recklessly failed to

adhere to timelines to complete school - wide assessments, the deadlines for

BAS assessments, the deadline for Portfolios, failed to practi ce the FSA on

the computer with her students, failed to complete the TA Certificate Course,

and intentionally or recklessly failed to attend trainings related to BAS

assessments. BCSB has shown by a preponderance of the evidence that

Gibbs' behavior consti tuted willful neglect of duty, as defined in Rule 6A -

5.056(5)

Violation of School Board Rules

89. School Board Policy 4008(B) sets forth the duties of instructional

personnel. These duties state that instructional personnel shall:

1. Comply with the Code of Ethics and Principles of

Professional Conduct of the Education Profession in

Florida.

* * *

7. Accurately maintain all student records and

documentation and prepare and submit such reports as they may be required by r egulations of the state b oard or the District. No teacher shall be

entitled to receive any salary unless all such

records and reports have been properly maintained and submitted according to requests.

* * *

8. Conform to all rules and regulations that maybe

prescribed by the State Board and by the School

Board.

90. Gibbs' conduct in failing to complete BAS assessments of her students,

submitting false BAS assessments, failing to document her students'

completion of Portfolio work, submitting false student Portfolio score s, failing

to allow her students practice for the FSA on their assigned computers,

failing to successfully complete the TA Certificate Course, and submitting a

false TA Certificate, violate School Board Policy 4008(B). As established

above, her conduct was not in compliance with the Code of Ethics or the

Principles of Professional Conduct. She did not maintain accurate student

records. As such, Gibbs ' conduct did not conform to the rules of the State

Board or BCSB.

91. School Board Policy 6000.1 contains th e Student Progression Plan of

the District. It establishes the standards for instruction, curriculum to be

taught, mandated assessments, reporting progress, and criteria for promotion, among other things.

92. Criteria for promotion in the third grade is b ased upon evaluation of

each student's progress through classroom work, teacher observations,

District approved assessments, and statewide formative and summative

assessments. Additionally, students in the third grade are subject to stricter, State - mandate d promotion criteria, which is the FSA.

93. Gibbs failed to assess her students' reading levels and then falsified

BAS scores. She also falsified Portfolio scores by giving her students perfect

scores and mathematically impossible scores on the multiple ch oice tests.

Upon review, a significant amount of student work was missing from student

Portfolios. Gibbs' conduct in falsifying student BAS assessments and Portfolio

scores violated Policy 6000.1.

Application of School Board Policy 4.9

94. Under the forego ing Findings of F acts, BCSB has met its burden and

established by a preponderance of the evidence that, other than the alleged

falsification of FMLA certification, Gibbs committed each of the violations

charged. What discipline is appropriate is determined by an application of the

progressive discipl in e structure described in School Board Policy 4.9.

95. Pursuant to Policy 4.9, section I(d), the level of corrective action in a

given case will be determined by the severity of misconduct and the consideration s listed in section III(c). "A more severe corrective measure will

be used when there is evidence that students, employees, or the community

we serve was negatively impacted."

96. Policy 4.9, section III, titled "Other Considerations," subsection (c),

sets forth circumstances that are "illustrative and not meant to be exhaustive

and may be considered when determining the appropriate penalty within a penalty (II Category B) range." The factors relevant here include:

1. The severity of the offense

2. Degree of student involvement

3. Impact on students, educational process and/or

community

4. The number of repetitions of the offenses and length of time between offenses

6. Employment history

8. The deterrent effect of the discipline imposed

10. The a ctual knowledge of the employee pertaining

to the misconduct

11. Attempts by the employee to correct or stop the misconduct

12. Related misconduct by the employee in other

employment including findings of guilt or innocence, discipline imposed and disci pline served

13. Actual negligence of the employee pertaining to

any misconduct

18. Any relevant mitigating or aggravating factors

under the circumstance.

97. It is undisputed that Gibbs was previo usly disciplined for failing to:

attend a training ses sion; failing to be punctual; failing to follow procedures

and pr otocols; failing t o instruct for an entire period; failing to closely mon itor

and track student progress; failing to understand standards ; and failing to

adhere to timelines and complete scho ol - wide assessments in a timely

manner. Here, the factors warranting a dismissal include : the severity and

number of the offenses; the impac t of Gibbs' conduct on students; the

educational process and/or community; Gibbs' prior discipline; Gibbs'

knowledge pertaining to her misconduct; the need for a sufficient deterrent

effect; and, Gibbs' failure to ta ke adequate steps to correct her prior

misconduct.

98. Therefore, BCSB has proven Gibbs committed acts as alleged in the

Administrative Complaint that const itute just cause to suspend Gibbs

without pay and terminate her employment.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Broward County School Board, enter a final

order upholding Respon dent's suspension without pay and termination for

just cause.

D ONE A ND E NTERED this 6th day of March , 2020 , in Tallahassee, Leon

County, Florida.

M ARY L I C REASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 6th day of March , 2020 .

C OPIES F URNISHED :

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33675

(eServed)

Denise Marie Heekin, Esquire Bryant Miller Olive, P.A.

One Southeast Third Avenue , Suite 2200

Miami, Florida 33131

(eServed)

Ranjiv Sondhi, Esquire

Bryant Miller Olive, P .A.

One Southeast Third Avenue , Suite 2200

Miami, Florida 33131

(eServed)

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

1718 East 7th Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Robert W. Runcie, Superintendent

Broward County School Board

6 00 Southeast Third Avenue , 10 th Floor

Fort Lauderdale, Florida 33301

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the da te 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.