19-004256TTS Polk County School Board vs. Jean Regan Status: Closed Recommended Order on Wednesday, February 26, 2020.

Summary: The School Board failed to prove that the teacher improperly assisted ESE students during FSA test while providing oral accommodations to which students were entitled.

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner, Polk County School Board, to

terminate Respondent, Jean Regan, from her employment as a teacher.

P RELIMINARY S TATEMENT

By letter, dated June 5, 2019, the Asso ciate Superintendent of the Polk

County School Board (the “School Board”) notified Ms. Regan of her intent to

recommend that Ms. Regan be terminated from her employment as a

classroom teacher for improperly assisting Exceptional Student Education

(“ESE”) s tudents during the Florida Standards Assessments Test (“FSA T ”).

The School Board maintained that this conduct constituted “just cause” to

terminate Ms. Regan in accordance with Step Four of the School Board’s

Progressive Discipline Policy.

Ms. Regan timel y requested an administrative hearing and the School

Board referred the matter to DOAH for assignment of an Administrative Law

Judge to conduct an evidentiary hearing under chapter 120, Florida Statutes.

The undersigned initially set the final hearing for October 14, 2019 . After

granting the parties ’ joint request for a continuance , the undersigned held

the final hearing on December 9, 2019.

The School Board presented the testimony of four witnesses: (1) Kimberly

Sealey, the Principal at North Lakeland Elementary (the “School”) ;

(2) Heather Himes, the School Board’s District Assessment Coordinator; (3)

Jennifer Wiedenman, the School’s Assistant Principal; and (4) Deblyn Smith,

an Inclusion Teacher at the School , w ho served as a proctor during the FSAT.

P etitioner’s Exhibits 2 through 18 were received into evidence over

Respondent’s hearsay objections to Petitioner’s Exhibits 13 and 16 through 18. Petitioner withdrew its Proposed Exhibit 1.

Ms. Regan testified on her own behalf and also presented the test imony of

Carolyn Braudrick, a retired ESE teacher who worked for the School Board

for 21 years , including four years at the School.

A one - volume Transcript of the final hearing was filed at DOAH on

January 9, 2020 . After receiving one 30 - day extension, the parties timely

filed their Proposed Recommended Orders (“PROs”) , which were duly

considered in preparing this Recommended Order.

F INDINGS OF F ACT

I. T HE P ARTIES A ND T ERMS OF E MPLOYMENT

1 . Ms. Regan has been employed by the School Board as a classroom

teacher for about 15 years . Her employment is subject to a professional

services contract pursuant to section 1012.33 , Florida Statutes .

2 . Ms. Regan has taught at the School since 2014. During the 2017 - 2018

school year , she served as an ESE inclusion teac her in the fourth grade. She

continued in that role for the same ESE students in fifth grade the following school year .

3 . At all relevant times, the Teacher Collective Bargaining Agreement

(“CBA”) — a contract between the School Board and the P olk Educatio n

Association, Inc . — governed the terms of Ms. Regan’s employment. The CBA

provides that teachers cannot be disciplined or terminated “without just

cause , ” which is defined as a “fair and reasonable basis for disciplinary action

up to and including terminat ion, as defined in applicable Florida Statutes

specific to the contract under which the employee is employed. ”

4 . The CBA also provides for progressive discipline administered as

follows: (1) verbal warning ; (2) written reprimand ; (3) suspension without pa y

for up to five days ; and (4) termination. Importantly, the CBA makes clear

that “[p]rogressive discipline shall be followed, except in cases where the

course of conduct or the severity of the offense justifies otherwise.”

II. A DMINISTRATIVE C HARGES

5 . On May 17, 2019, the Principal sent a letter to the Superintendent

alleging that Ms. Regan engaged in unethical and unlawful conduct by

interfering with the student achievement results during the English Language Arts (“ ELA Reading ”) FSAT and fail ing to main tain honesty in her

professional dealings by submitting a written statement inconsistent with the video recording. The Principal argued that this severe misconduct constituted

just cause for her termination .

6 . In its termination letter, the School Board a lleged that Ms. Regan

violated Florida Administrative Code Rule 6B - 1.006(5)(a)

2 by: (1) improperly

looking through several FSAT booklets to determine if all questions had been

answered and/or answered correctly; (2) giving verbal or non - verbal cues to

assi st students with answering the questions correctly; and (3) submitting a

written statement that was inconsistent with the video of the FSAT. The

School Board stated that it lost confidence in her ability to be a trustworthy

and productive member of the Sch ool and that just cause existed to terminate

her employment.

7 . It is undisputed that the School Board did not administer progressive

discipline against Ms. Regan. Instead, it contends that just cause exists to move directly to termination based on the sev erity of the alleged misconduct.

III. FSAT R EQUIREMENTS A ND T RAINING

8 . The School Board’s District Assessment Coordinator , Ms. Himes,

trained test coordinator s at each school on the FSAT requirements , who in

turn trained the test administrators and procto rs at their respective schools.

9 . The Assistant Principal, Ms. Weidenman, served as the School’s test

coordinator. She conducted an FSAT training session, which Ms. Regan, as a

test administrator, and Ms. Smith, as a proctor, both attended.

2 The Principal and School Board both incorrectly cited to rule 6B - 1.006(5)(a) in the charge

documents. However, that rule was transferred to Florida Administrative Code R ule 6A -

10.081 several years ago. The School Board cited the correct version of the rule in its PRO.

1 0 . During th e session, the Assistant Principal provided the attendees

with the FSAT training manual containing general testing requirements and

discussed the highlights therein. She noted that the attendees needed to

review the manual themselves, complete an online mo odle training course,

and pass a quiz at its completion. Importantly, the training session, manual,

and online course covered general guidelines for administering the FSAT to

students who did not need accommodations.

1 1 . Prior to the FSAT, administrators signed two agreements concerning

security and prohibited activities . These agreements specified standards for

testing students in general . For students entitled to receive accommodations,

like the 19 ESE students here, numerous exceptions could apply.

1 2 . For instance, t he security agreement permitted administrators “to

provide the accommodation(s) as described in each test administration

manual . ” However, it offered no further elucidation.

1 3 . The prohibited activities agreement expressly prohibited

admi nistrators from assisting students in answering test items, giving verbal

cues (directing the student to recheck answers) or non - verbal cues (pointing

to specific items in the test), opening or checking through the test booklets

before the test , or reading through student test documents after the test .

Importantly, however, the agreement allowed administrators to read test

items while monitoring the room to provide allowable accommodations. 3 The

agreement also did not expressly prohibit administrators from touching the test booklets or tracing their fingers along the page while providing an oral accommodation during the test .

1 4 . Notwithstanding the multitude of possible exceptions (both expressed

in the agreement and otherwise) that could apply, the Sch ool did not offer a

special training session to the administrators and proctors who would be

providing accommodations during the FSAT . Instead, the Assistant Principal

3 Although the agreement notes that the allowable accommodations are “ described in Appendix A ,” the

appendix is not attach ed to the copy of the exhibit in evidence .

referred them to the FSAT Accommodations Guide (the “Guide”) available

online and requir ed them to review it on their own.

1 5 . The Guide offer ed a substantial amount of information on numerous

types of accommodations. It also recognize d that other accommodations may

be given based on the students’ needs and individual education plans

(“IEPs”) , as long as they did not unfairly advantage the students or interfere

with the validity of the test. T he Guide note d that the accommodations “must

be the same or nearly the same as those needed and used by the student in

completing classroom instruction a nd assessment activities.”

1 6 . The Guide permit ted oral presentation or read - aloud accommodations.

During the writing portion of the FSAT, the prompts, items, and answer

choices may be read aloud to the student as many times as requested. Test

directions may be repeated, clarified, or summarized as many times as

requested and students could verbally demonstrate that they understand the

directions. While providing such accommodations, administrators must not use inflection that might lead a student to the c orrect/incorrect responses.

The Guide did not expressly prohibit administrators from touching the test

booklet or tracing their finger along the page while providing oral

presentation accommodations.

1 7 . Verbal encouragement, such as “keep working” or “ma ke sure to

answer every question,” could be provided so long as it wa s not used to assist

a student in producing or correcting responses. For non - native English

speakers (“ELLs”), the Guide permits access to an English - to - heritage

language translation dict ionary .

4

1 8 . The School Board’s testing coordinator, Ms. Himes, testified at length

about the FSAT requirements. She testified that the FSAT standards

4 The School Board elicited testimony that Ms. Regan improperly used her cell phone during

the FSAT. However, Ms. Regan confirmed that she used the phone only to text the Assistant

Principal to bring a dictionar y for an ELL student who needed a word translated into

Spanish, consistent with her IEP. The School Board never referred this issue in its charge

letter or in its PRO.

prohibit administrators from helping a student identify a correct answer,

touching a test booklet, openi ng and going through a test booklet without a

prompt from the student, or directing a student to an issue in the test, e.g. , a

stray mark or unanswered question, without a prompt from the student.

19 . Importantly, however, Ms. Himes conceded that the FSAT standards

are fluid when it comes to ESE students needing accommodations and that the Guide fail ed to articulate all of the exceptions that could apply. She

agreed that the FSAT m aterials did not expressly prohibit touching the test

booklets, tracing a fin ger along the m , or flipping or otherwise looking through

the m when providing oral accommodation s . She confirmed that, if students

were taught in the classroom to mark their test booklet s as a prompt for the

teacher to look through and identify issues on wh ich they need an

accommodation, then that accommodation should be permitted during the

FSAT. She also acknowledged that administrators could encourage students

to fill in all bubbles fully, erase stray marks, or c omplete all questions if they

saw an issue in a student’s test booklet, so long as they d id not direct the

students to particular questions.

IV. T HE FSAT A ND R ESULTING I NVESTIGATION

2 0 . Prior to the FSAT, the School assigned Ms. Regan to serve as the test

administrator and Ms. Smith to serve as the proctor in a room with 19 ESE

fifth - grade students. Ms. Regan had previously provided accommodations

during the FSAT, but Ms. Smith had never done so.

2 1 . The IEPs for every student allowed them to receive multiple

accommodations, some of which overlap ped while others applied only to one

or two students. For instance, all of the students could receive oral

presentation, including the directions, test questions, and answers read to them as many times as they needed , and verbal encouragement . Almost all o f

them could have the directions repeated, summarized, or clarified, and a

majority could paraphrase and repeat the directions back. Several needed the

directions given in small, distinct steps, and two could even read the

passages, questions, and answers aloud to themselves.

22 . Ms. Regan served as the ESE inclu s ion teacher for these students for

close to two years. Ms. Regan confirmed that many of them had a learning

disability , Attention Deficit Hyperactivity Disorder (“ADHD”), and/or a

language impair ment issue. Because they had difficulty processing

information and staying focused, they needed to receive the materials in

different ways and to develop strategies for understanding what was being

asked of them .

2 3 . Ms. Regan spent considerable time wor king with them. She tried to

determine the best way for each of them to receive information and drafted

their IEPs accordingly. She helped them with reading, writing, and math

throughout the week. She knew them and their individual accommodations;

they, in turn, felt comfortable with her.

2 4 . Ms. Regan helped them develop test - taking strategies. S he taught

them to mark the margin if they had a question so they could move on while

awaiting her assistance . Many of these students had trouble maintaining

their focus, so they closed their books to take a break . They often asked her to

check to see if they were finished. The marks in the margin helped them

remember if they had specific questions and prompted Ms. Regan to find the

questions on which they needed an accommodation . The Assistant Principal

confirmed that the School left the decision as to whether teachers would

prompt the students on the issue of accommodations up to the teacher.

2 5 . Ms. Regan also gave them reading tests almost every Friday. She

prov ided them with accommodations to simulate the FSAT environment .

During the practice tests, Ms. Regan read the directions , gave the students

time to read the passage, and then read the questions and answers to the

entire class at once . Thereafter, she could provide individual accommodations

if they raised their hands or marked their test booklets.

2 6 . In advance of the FSAT, Ms. Regan spoke to the Assistant Principal

about concerns she had about testing all 19 ESE students in the same room.

Several students required accommodations that were inconsistent with being

tested in a big group. Three students could read the passages and questions

aloud to themselves , and one student had behavioral issues. She requested

that the School test these students separately or at a later time. The

Assistant Principal denied the request due to space and personnel issues.

2 7 . Ms. Regan also requested that the School Board provide the same

version of the FSAT so that she could provide the oral presentation

accommodations to the entire group, just like the practice tests. The ELA

Reading FSAT also contained many more sets of directions than the practice

tests, including at the beginning, before each reading passage, and sometimes

before certain questions. That fact made it all th e more critical to use the

same version to make it easier to accommodate the students, all of whom

would need the directions and questions read to them multiple times.

2 8 . On the morning of the test, Ms. Regan picked up the FSAT materials.

She learned at that point that the School Board could not provide the same

version of the FSAT. As a result, she and Ms. Smith would be required to

provide oral presentation accommodations to the students individually. She

reiterated her concerns about testing the three students in the same room to the Assistant Principal, headed to the media center, and created a seating

chart in an effort to minimize disruptions.

29 . All of the students required oral accommodations. The majority

requested that Ms. Regan read the direct ions and multiple questions and

answers, sometimes several times. She repeated, summarized, or clarified

directions to students who requested that accommodation multiple times. She permitted students, mostly those with language impairments, to paraphrase

a nd repeat the directions back to her as allowed by their IEPs.

3 0 . In providing these accommodations, Ms. Regan flipped through the

test booklets at times when prompted by the student. Sometimes she picked

up a test booklet and traced her finger along the page as she read. She

pointed at the booklet when necessary to get confirmation from the student

as to the particular question needing an accommodation. She also flipped

through the booklets when the directions, questions, and answers appeared

on multiple pages . She also look ed through test booklets for marks made by

the students that identif ied the issues on which the y needed an

accommodation , just as she taught them in class .

3 1 . When students acted out, stopped working before completing the test,

or oth erwise asked her to assist them beyond their allowed accommodations,

she encouraged them to do their best and reiterated the importance of

finishing. When one student froze up and stopped working without answering

most of the questions, she sat next to him to encourage him to continue

working and to offer accommodations when requested. One student asked

Ms. Regan for the correct answer and acted out when she refused to give it to

him, so she encouraged him to do his best.

3 2 . Given the multiple requests to re - read items and the amount of time it

took Ms. Regan to get back to the student while providing accommodations to

others, each interaction could take an extended period of time. That is not surprising in a room with 19 ESE students and only two teachers .

3 3 . Ms. Regan credibly confirmed that she never assisted a student with

determining correct or incorrect answers. Indeed, she never read the reading passages to know the correct answers. Although students watch ed her face

when she read test items to try to glean the correct answer , she did not make

any faces or otherw ise hint at the answers. She also never directed a student

to erase a specific item, though she may have read that portion of the

directions reminding the students to erase all stray marks.

3 4 . Prior to finishing the test, several students asked Ms. Regan if they

were ready to turn in their tests. She looked through the booklets and

repeated the directions about completely filling in bubbles and eras ing stray

marks . After the students review ed their tests again, several asked her to re -

read the directions or some questions. She accommodated them as she had

throughout the test until the last student finished .

3 5 . Ms. Smith also checked test booklets during the FSAT and told a few

students to make sure their answers were completely marked.

3 6 . After the FSAT, the Assistant Principal received a report that

Ms. Regan looked through test booklets to determine if students answered

questions correctly. She initially spoke with Ms. Regan, who admi tted to

checking to make sure answer bubbles were darkened. 5

3 7 . T he Assistant Principal spoke to two students and Ms. Smith.

Although Ms. Smith initially failed to disclose that she had directed students

to darken their bubbles, she admitted to doing so i n a subsequent phone call.

Ms. Smith informed the Assistant Principal that she became concerned

during the FSAT because the students seemed to favor assistance from Ms. Regan, and Ms. Regan seemed to spend too much time with each student.

However, Ms. Smit h acknowledged that she lacked experience in providing

accommodations during the FSAT, she could not hear the discussions, and she only made this report after the Assistant Principal approached her.

3 8 . Ms. Regan provided a written statement. She confirmed that she

provided oral presentation accommodations and encouraged the students to

do their best and keep working . Several students asked her if they were

finished with the FSAT, so she repeated the directions to them about

completely filling in bubbles an d being sure to erase completely. After the

5 Most of the evidence about the Assistant Principal’s investigation into what student s and

other teachers told her constitutes hearsay and , in many instances , hearsay within hearsay ,

for which no exception has been established . This includes Petitioner’s Exhibits 4 ( an email

sent by Ms. Smith to the Assistant Principal ), 13 ( questionnaires drafted by the Assistant

Principal summarizing what students purportedly told her ), 16 (the Principal’s investigation

notes), 17 (the Assistant Principal’s investigation notes), and 18 (a text message from a

teacher to the Assistant Principal about what a student told her). The undersigned has not

considered these five exhibits or hearsay testimony from the Assistant Principal or

Ms. Smith as to what others purportedly told them, unless it merely supplemented or

explained other non - hearsay testimony, or me t an exception to the hearsay rule. One such

example is testimony as to what Ms. Regan told the Assistant Principal and Ms. Regan’s

written statement, which are admissions under section 90.803(18), Florida Statutes.

students had reviewed their test booklet s , several asked her to either re read

the directions or some of the questions. She did so consistent with their IEPs

39 . The Assistant Principal interviewed all of the stu dents and drafted

questionnaires summarizing what they purportedly told her. The

investigation also included a review of the video taken during the FSAT.

4 0 . After receiving the materials from the Assistant Principal, Ms. Himes

forwarded them along with a report to the Florida Department of Education

(“Department”). The Department also requested a statement from Ms. Smith.

41 . Ultimately, the Department invalidate d the ELA reading FSAT for all

19 ESE students. Although the School tries to evaluate individua l student

improvement from year to year , t he evidence is clear that most ESE students

do not pass the FSAT. As such, the invalidation of the tests likely had no

affect on the School’s overall grade.

4 2 . Based on its investigation and the invalidation of t he tests, the School

Board sought to terminate Ms. Regan for violating the FSAT standards . T he

School Board took no disciplinary action against Ms. Smith , despite her

concession that she too had engaged in similar conduct during the FSAT.

4 3 . To support it s allegations against Ms. Regan, the School Board relied

on the video taken during the FSAT, the Assistant Principal’s questionnaires,

and the depositions of ten of the ESE students. However, this evidence fails to credibly show that Ms. Regan violated FSA T standards.

4 4 . The video evinces a room in need of near constant assistance. Most of

the students raised their hands with questions, sometimes numerous times; many had difficulty staying focused throughout the test. Ms. Regan

consistently mov ed around th e room addressing students who raised their

hands or were either not focusing or acting out. At times, Ms. Regan place d

her finger on the test book lets and move d it along the page, as if to point the

students’ attention to the words she was reading . At oth er times, she assisted

the students by flipping through their booklets after they requested

assistance. As the testimony confirmed, the FSAT standards did not prohibit

such conduct as long as it mirrored accommodations given in the classroom

and did not as sist the students in determining the correct answers.

4 5 . The video also shows Ms. Regan spending more time with the students

than Ms. Smith. Contrary to the School Board’s contention that this fact

supports a finding that Ms. Regan improperly assisted th e students, the

greater weight of the credible evidence established otherwise. I t is not

surprising that the students preferred assistance from Ms. Regan because

she served as their ESE inclusion teacher for two years and accommodated

them during their pra ctice tests. It is equally not surprising that Ms. Regan

had to stay with each student for an extended period. Many of them asked

her to read the directions, questions, and answers, sometimes several times

each. Others requested that she summarize or clari fy the directions, the

students could paraphrase the directions, and Ms. Regan could re - read them

again.

4 6 . Moreover, the frequency and duration of the visits wa s more likely due

to FSAT administration decisions outside Ms. Regan’s control . For one, the

S chool decided to test all 19 ESE students in one room with only two teachers

to assist. While that decision may have been necessitated by personnel and space issues, the sheer number of ESE students made it difficult for two

people to timely provide accomm odations. Many students wait ed for extended

periods of time while Ms. Regan and Ms. Smith assisted others, which likely

resulted in longer individual exchanges. E xacerbating the problem, the

School Board (directed by the Department) denied Ms. Regan’s requ est to use

the same version of the FSAT ; t hat would have allowed her to provide

accommodations to the entire group at one time, consistent with the practice tests, and hopefully minimize the number of individual requests.

4 7 . The undersigned also rejects the contention that Ms. Regan’s improper

assistance is evident because students appeared to complete or change answers after interacting with her. The students requested accommodations

from Ms. Regan specifically to assist them in understanding the directi ons,

questions, and answers. It makes perfect sense that they would complete or

possibly change an answer after receiving a permissible accommodation .

4 8 . Because the video lacks audio, it is impossible to decipher what

Ms. Regan is saying to the students during these brief interactions. However,

she credibly explained that she never assisted them with ascertaining the

correct answers and merely provided them with the oral accommodations to

which they were entitled. Thus, contrary to the testimony of the Sc hool

Board’s witnesses, the undersigned disagrees that the video is credible

evidence of any improper conduct in violation of the FSAT standards . It also

is consistent with Ms. Regan’s written statement.

49 . As for the questionnaires and the student dep ositions, it bears

emphasizing at the outset that the record lacks evidence as to the particular

exceptionalities attendant to each of these ESE students. Ms. Regan testified

that several have learning disabilities and ADHD. Importantly, however, no

witnes s es articulated the extent of those exceptionalities, much less

explained ho w those exc eptionalities may impact their ability to recall the

events or tell the truth. Without such information, the undersigned’s ability

to evaluate the credibility of the stu dents — all of whom testified by

deposition — is hampered. This is even more problematic given inconsistencies

within the depositions themselves and between the depositions and the

questionnaires .

5 0 . Putting aside for a moment the hearsay and double hearsay nature of

the questionnaires, the undersigned also cannot ignore that the Assistant

Principal never placed the students under oath or asked them to confirm the

accuracy of the notes . That renders them inherently unreliable. Their

probative value is furthe r undermined given that some of the questionnaires

conflict ed with the depositions on several critical points .

5 1 . Although the undersigned appreciates that procuring students to

testify live can be difficult, the use of depositions in lieu of live testi mony is

problematic. 6 For one, it undermines the fact - finder’s ability to meaningfully

assess the credibility of the deponents as compared to the witnesses who

testify live. This is particularly so where the live witnesses are found to be

credible, like Ms . Regan in this case. That problem is compounded here

because the deponents are fifth - grade ESE students and the record is devoid

of evidence as to how their individual exceptionalities may impact their

credibility or the weight to be given to their testim ony .

5 2 . Of all of the deponents, G.R. offered the most consistent and clear

testimony. He testified definitively that Ms. Regan read half of the questions and answers to him during the test, but she never provided hints or assisted him in finding the co rrect answers. G.R. did not believe that Ms. Regan

improperly assisted any students during the FSAT because the allegation that she had done so was untrue “drama” created by a few students.

5 3 . Three of the deponents, i.e. , K.B., A.N.M., and C.D., confirme d that

Ms. Regan provided them with oral accommodations by reading the

directions, questions, and answers multiple times and helped them find the questions on which they wanted an accommodation by looking for marks they

made in the margin s . None of them of fered definitiv e testimony that

Ms. Regan gave them the correct answers or otherwise directed them to

6 The depositions also constitute inadm issible hearsay for which no exception has been

established. In a civil action, depositions may be admitted either under Florida Rule of Civil

Procedure 1.330(a)(3) or as an exception to the hearsay rule for former testimony under the Florida Evidence Code . Bank of Montreal v. Estate of Antoine , 86 So. 3d 1262, 1264 (Fla. 4th

DCA 2012). Because the School Board failed to establish that the ten students were “unavailable” to testify live, the depositions are not admissible under rule 1.330(a)(3) or section 9 0.804(2)(a), Florida Statutes. And, though section 90.803(22) provides that “former

testimony” taken in the same case where the party against whom the evidence is offered had a similar motive to develop the evidence is admissible regardless of unavailabili ty, that is an

improper ground on which to admit a deposition in an administrative hearing. Grabau v.

Dep't of Health , 816 So. 2d 701, 709 (Fla. 1st DCA 2002). The parties’ agreement to use the

depositions in lieu of live testimony does not permit the unde rsigned to base a finding of fact

on hearsay alone unless it supplements or explains non - hearsay evidence or otherwise would

be admissible over objection in a civil action, as clearly proscribed by section 120.57(1)(c).

Accord Fla. Admin. Code R. 28 - 106.21 3(3). Th us, the undersigned has considered the

deposition testimony only to the extent that it supplements or explains other non - hearsay

evidence.

change their answers and all of them acknowledged inconsistencies between

their questionnaires and their testimony.

5 4 . The remaining six deponents , i.e. , T.S., J.S., J.R.V., J.R.R., C.B., and

A.F., were not sworn in properly by engaging in a colloquy about knowing the

difference between the truth and a lie and obtaining verbal confirmation that

they would testify truthfully. Those facts, in addition to th e credibility , and

inconsistency issues, renders their testimony unreliable.

5 5 . Lastly, the School Board contends Ms. Regan ’s motivation to

improperly assist her students is evident from a conversation she had with

the Principal concerning her placement f or the next school year. During the

conversation, Ms. Regan asked to remain as the fifth grade ESE inclusion

teacher and the Principal confirmed that she would base her decision in part

on the FSAT results. However, Ms. Regan credibly and believably testif ied

that she had no such motivation . And, given that the FSAT results

apparently are a factor in the School’s placement decisions , this argument

c ould apply in all cases involving allegations of improper FSAT assistance.

U LTIMATE F INDINGS OF F ACT

56 . Unde r Florida law, whether charged conduct constitutes a deviation

from a standard of conduct established by statute or rule is a question of fact

to be decided by the trier - of - fact, considering the testimony and evidence in

the context of the alleged violatio n. Holmes v. Turlington , 480 So. 2d 150, 153

(Fla. 1st DCA 1985); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995); Langston v. Jamerson , 653 So. 2d 489 (Fla. 1st DCA 1995). Thus,

deciding whether Ms. Regan’s alleged conduct violates the law as charged in

the School Board’s termination letter is a factual, not legal, determination.

5 7 . Based on the weight of the credible evidence, the School Board failed

to establish by a preponderance of the evidence that Ms. Regan acted

dishonestly by assisting students in selecting correct answers. Ms. Regan

credibly denied ever assisting the students in that manner. In fact, the

credible evidence confirmed that Ms. Regan had little opportunity to read the

passages to determine the correct answers and, given th at t he students had

different versions of the FSAT , it was highly improbable that she could have

known the correct answers when moving from student to student.

5 8 . Based on the weight of the credible evidence, the School Board failed

to establish by a prep onderance of the evidence that Ms. Regan acted

dishonestly by otherwise violating the FSAT standards. The credible evidence

confirmed that Ms. Regan permissibly could : touch the test booklets and

point at items while providing oral accommodations ; flip thr ough the test

booklet to look for the questions the students had identified as needing an accommodation because that is exactly how they practiced in the classroom ;

and encourage the students to make sure that they completed the test by

reading the corresp onding directions, particularly after they prompted her to

do so, just as they learned in class .

C ONCLUSIONS OF L AW

59 . DOAH has jurisdiction over the parties and subject matter of this

cause. §§ 120.569, 120.57(1), and 760.35(3), Fla. Stat.

6 0 . The Scho ol Board is duly constituted and charged with the duty to

operate, control, and supervise public schools within Polk County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.33 and 1001.42, Fla. Stat. This includes

the power to discipline instructional staff , such as classroom teachers.

§§ 1012.22(1)(f) and 1012.33, Fla. Stat.

6 1 . Ms. Regan is a classroom teacher and her employment with the School

Board is governed by a professional service contract. §§ 1012.01(2)(a) and

1012.33, Fla. Stat. The terms of Ms. R egan’s employment with the School

Board are also governed by the CBA.

6 2 . “The School Board bears the burden of proving by a preponderance of

the evidence each element of the charged offense which may warrant

dismissal.” Cropsey v. Sch. Bd. of Manatee Cty. , 19 So. 3d 351, 355 (Fla. 2d

DCA 2009) (citing Dileo v. Sch. Bd. of Dade Cty. , 569 So. 2d 883 (Fla. 3d DCA

1990)). A p reponderance is defined as “the greater weight of the evidence,” or

evidence that “more likely than not” tends to prove a certain proposi tion.

S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla.

2014).

6 3 . To terminate Ms. Regan’s employment, the School Board must prove

that she committed the acts alleged; that those acts violate the 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.

6 4 . Similarly, article 4.4 of the CBA provides that teachers cannot be

disciplined or terminated “without just cause.” The CBA defines just cause as

a “fair and reasonable basis for disciplinary action up to and including

termination, as defined in applicable Florida Statutes specific to the contract under which the employee is employed.”

6 5 . In its PRO, the School Board c ontend ed that it ha s just cause to

terminate Ms. Regan for engaging in “misconduct in office” that impaired her

effectiveness as an educator. Fla. Admin. Code R. 6A - 5.056(2). S pecifically,

the School Board argue d that Ms. Regan failed to maintain honesty i n her

professional dealings when she “surreptitiously assisted students in the selection of correct answers and by otherwise violating testing rules and regulations,” contrary to Florida Administrative Code Rule 6A - 10.081(2)(c)1.

6 6 . Section 1012.33(1)(a) lists the instances that qualify as “just cause,”

including “misconduct in office.”

6 7 . “Misconduct in office” includes any of the following:

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

Education Profession in Florida as adopted in

Rule 6A - 10.080, F.A.C .;

(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 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.

Fla. Admin. Code R. 6A - 5.056 .

6 8 . One of the Principles of Professional Conduct is an obligation for

teachers to “maintain honesty in all professional dealings.” Fla. Admin. Code

R. 6A - 10.081(2)(c) .

69 . Based on the F indings of F act and U ltimate Findings of F act, the

School Board failed to prove by a preponderance of the evidence that

Ms. Regan acted dishonestly by assisting students in sele cting the correct

answers. To the contrary, the credible weight of the evidence established that

Ms. Regan never improperly assisted the students in this regard.

7 0 . Based on the F indings of F act and U ltimate Findings of F act , the

School Board failed to pr ove by a preponderance of the evidence that

Ms. Regan acted dishonestly by violating any other FSAT standards. To the

contrary, the credible weight of the evidence showed that she accommodated

the students in accordance with their IEPs and never acted in c ontravention

to the FSAT standards. Ms. Regan simply applied the same accommodations

used in the classroom, consistent with the Guide and the law. See Fla.

Admin. Code R. 6A - 1.0943(a) (requiring school boards to “utilize appropriate

and allowable accommoda tions for [the FSAT] within the limits prescribed

herein and current statewide standardized assessment test administration manuals , ” which are “ based on current instructional accommodations and

accessible instructional materials used by the student in the classroom ”).

7 1 . Thus, the School Board lacked “just cause” to terminate Ms. Regan.

Because the School Board improperly suspended Ms. Regan without pay on

June 5, 2019, it should immediately reinstate her as a classroom teacher and

provide her with back pa y from that date forward.

7 2 . Although the undersigned conclude s that the School Board failed to

establish “just cause,” the School Board’s request to terminate would have

been an inappropriate penalty even had it prove d the alleged violations .

7 3 . The CB A required the School Board to apply progressive discipline

“ except in cases where the course of conduct or the severity of the offense

justifies otherwise .”

7 4 . It is undisputed that the School Board failed to follow progressive

discipline in this case. Thus, its discretion to impose the ultimate sanction of

termination is limited to situations where the course of conduct or the

severity of the offense justifies otherwise. Making that determination is a

question of ultimate fact for the undersigned to det ermine based on the

competent, substantial record evidence. See Costin v. Fla. A & M Univ. Bd. of

Trs. , 972 So. 2d 1084, 1086 - 87 (Fla. 5th DCA 2008) (holding that the ALJ’s

finding as to whether employee’s misconduct justified dismissal based on terms of t he university’s progressive discipline rule wa s “an ‘ultimate fact’

best left to the trier of fact under these circumstances”).

7 5 . The CBA does not define what “course of conduct” or “offense” is severe

enough to meet the exception to progressive discip line and the School Board

presented no evidence on this issue. Given that this is an exception, it must mean something more egregious than the standard types of misconduct defined in rule 6A - 5.056 , for which progressive discipline must be followed.

7 6 . Mo reover, the CBA’s definition of “just cause” requires that there be a

“fair and reasonable basis for disciplinary action” based on the severity of the

offense, particularly given the requirement for progressive discipline. See Bell

v. School Bd. of Dade Ct y. , 681 So. 2d 843, 844 - 45 (Fla. 3d DCA 1996)

(remanding for issuance of lesser sanction given failure to follow progressive discipline and where CBA required that “degree of discipline shall be

reasonably related to the seriousness of the offense and the employee's

record” and teacher had discipline - free career for over 11 years); Collins v.

School Bd. of Dade Cty. , 676 So. 2d 1052, 1053 (Fla. 3d DCA 1996)

(remanding for issuance of lesser sanction where six - month suspension failed

to follow progressive di scipline, as required by CBA, and was not reasonably

related to the seriousness of the offense).

7 7 . Here, the evidence established that Ms. Regan is a dedicated ESE

teacher with over twenty years of experience. The training provided by the

School focused almost exclusively on the general F S AT standards, even

though the standards for providing accommodations to ESE students are vastly different. In fact, those standards are not fully articulated even in the

Guide, as it leaves open the possibility for other , unspecified accommodations

based on the needs of the student. Even the School Board’s witnesses with

expertise in this area had trouble articulating all of the restrictions that

apply for accommodating ESE students.

7 8 . Moreover, the School assigned Ms. Regan to a testing room with 19

ESE students who needed constant attention and only provided her with one proctor (who was proctoring her first FSAT with ESE students) to assist. To

make matters worse, Ms. Regan requested the same version of the FSAT be g iven to all 19 students so she could provide accommodations to everyone at

one time, in line with how she accommodated the students during their

practice tests. Because that request was denied, Ms. Regan had to apply a

different accommodation approach duri ng the FSAT, despite the Guide’s

requirement that the FSAT mirror the practice tests. This was unfair to

Ms. Regan, who had to improvise on the fly and juggle the repeated requests

for acco mmodations from 19 ESE students . It also was unfair to the students ,

who had to take the FSAT under different circumstances than their practice

tests and wait long periods of time while Ms. Regan and Ms. Smith scrambled

to help all of the students.

79 . Based on the F indings of F act and U ltimate Findings of F act above

and considering all of the evidence, the undersigned finds that Ms. Regan’s

actions — even if the School Board had proved that she engaged in sufficient

misconduct to discipline her — would not justify skipping progressive

discipline and moving straight to the ult imate sanction of termination.

Instead, a verbal warning as the first step to progressive discipline would

have been appropriate.

R ECOMMENDATION

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

R ECOMMENDED that the Petitioner , Polk C ounty School Board , issue a final

order re instating the Respondent , Jean Regan , as a classroom teacher and

awarding her back pay to the date on which the School Board first suspended

her without pay.

D ONE A ND E NTERED this 26th day of February , 2020 , in Ta llahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 26th day of February , 2020 .

C OPIES F URNISHED :

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Donal d H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, F lorida 32399 - 400 0

( eServed)

Jacqueline Byrd, Superintendent

1915 South Floral Avenue

Post Office Box 391

Bartow, Florida 33831

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 400 0

(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 date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will i ssue the Final Order in this

case.