21-001141 Marion County School Board vs. Barbara Brown Status: Closed Recommended Order on Thursday, July 8, 2021.

Summary: Petitioner proved just cause to discipline Respondent. Recommend written reprimand.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARION C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 21 - 1141

B ARBARA B ROWN ,

Respondent .

/

R ECOMMENDED O RDER

On Ma y 17, 2021, Yolonda Y. Green, an Administrative Law Judge (ÑALJÒ) with

the Division of Administrative Hearings (ÑDOAHÒ), conducted a hearing pursuant to

section 120.57(1), Florida Statutes (2020), via Zoom conference technology .

A PPEARANCES

For Petitioner : Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, F lorida 32789

For Respondent: Mar k Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, F lorida 33761 - 1526

S TATEMENT OF T HE I SSUE

Whether Petitioner, Marion County School Board (ÑPetitionerÒ or ÑSchool

BoardÒ), had just cause to suspend Respond ent, Barbara Brown (ÑRespondentÒ or

ÑM s. Brown Ò), for misconduct in office as alleged in the Administrative Complaint.

P RELIMINARY S TATEMENT

On February 18, 2021, Dr. Diane Gullett, Superintendent of Schools of Marion

County, filed an Administrative Comp laint alleging Respondent assisted students

on a standard test by permitting them to use study guides during the testing. The

Supe rintendent alleged RespondentÔs conduct constitutes misconduct in office, gross

insubordination, willful neglect of duty , and just cause for disciplinary action. The

Superintendent recommended that Respondent be suspended for 10 day s .

Respondent timely filed a request for formal administrative hearing to dispute the

allegations in the Administrative Complaint, which was referred to DOAH on

March 26, 2021, for assignment of an administrative law judge.

This case was assigned to the undersigned for a hearing. The case was scheduled

for May 17, 2021, and commenced as scheduled. At the final hearing, Petitioner

presented the testimon y of Jonathan McGowan (Director of School Counseling and

Assessment) and Brent Carson (Director of Professional Practices). PetitionerÔs

Exhibits 1 through 11 were admitted into evidence. PetitionerÔs Exhibits 3 through

6 were admitted into evidence over R espondentÔs objection. Respondent testified on

her own behalf and presented no other witnesses. RespondentÔs Exhibit 1 was

admitted into evidence.

A one - volume Transcript of the hearing was filed with DOAH on June 8, 2021 .

The parties timely filed Propose d Recommended Orders, which have been

considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the commission of

the acts alleged to warrant discipline. See McCloskey v. DepÔt of Fin. Servs. , 115 So.

3d 441 (Fla. 5th DCA 2013). Thus, references to statutes or rules will be to the

2020 version as they w ere the version in effect at the time of the incident alleged in

the Administrative Complaint.

F INDINGS OF F ACT

Based on the testimony, exhibits , a nd facts in the J oint P rehearing S tipulation,

the following Findings of Fact are made:

Parties and Background

1. At all times material to this matter, the School Board ha d the duty to operate,

control, and supervise public schools within the School Distri ct of Marion County.

Diane Gullett is the Superintendent of the School District.

2 . At all times material to this matter, Ms. Brown was employed by the School

Board.

3 . Ms. Brown was employ ed as a teacher pursuant to a professional services

contract, whi ch has been renewed on an annual basis. Ms. BrownÔs employment is

governed by the School Board, Florida laws, Department of Education rules, and

the Collective Bargaining Agreement (ÑCBAÒ) between the Marion Education

Association and the School Board. The CBA relevant to this matter became effective

on May 12, 2020 , and remains effective until 2022 .

Quarterly Standards Mastery Assessment (ÑQSMAÒ)

4 . During an academic school year, the School Board administers the QSMA

quarterly, which is administered at th e end of each quarter of the year. During the

2020 - 2021 academic year, the School Board administered the second quarter Q SM A

in January 2020.

5. The QSMA is a diagnostic test used to assess student performance. The QSMA

is not a statewide test, but rather a district assessment, which is permitted under

Florida law.

Testing Administration and Security

6 . At the beginning of each school year, the School Board administer s a training

for teachers for the testing administration process. Upon completion of the training,

the School Board requires that each teacher sign the Test Administration and

Security Agreement (ÑTASAÒ), affirming understanding of the agreement

requirements.

7 . The TASA provides , in pertinent part:

District assessments È must be maintained and

administered in a secure manner such that the integrity

of the tests are preserved. All persons in the testing

process must strictly adhere to the requirements set forth

in Florida Administrative Code Rule 6A - 10.042 È . This

include s , but is not limite d to:

(c) Examinees shall not be assisted in answering test

questions by any means by persons administering or

proctoring the administration of any test.

* * *

(f) Persons who are involved in administering or

proctoring the tests or persons who teach or otherwise

prepare examinees for the tests shall not participate in,

direct, aid, counsel, assist in, or encourage any activity,

which could result in the inaccurate measurement or

reporting of the examineesÔ achievement.

8 . The TASA attestation provides :

I have read and understand this Agreement and will

comply with District Board Policy 4.61 Ï Security of Tests.

By virtue of the foregoing, I am on notice that any actions

by me that are contrary to the foregoing affirmations and

acknowledgments will sub ject me to appropriate

disciplinary action, up to and including termination from

employment.

9 . School Board Policy 4.61, entitled Security of Tests, provides , in pertinent

part:

Statewide and District assessments shall be maintained

and administered in a secure manner such that the

integrity of the tests shall be preserved. All persons in the

testing process shall strictly adhere to the requirements

set forth in State Board of Education Rule 6A - 10.042

(ÑTest Administration and SecurityÒ) .

* * *

(B) St udents shall not be assisted in answering test

questions by any means by persons administering or

proctoring the administration of any test.

* * *

(E) Persons who are involved in administering or

proctoring the tests or persons who teach or otherwise

pre pare students for tests shall not participate in, direct,

aid, counsel, assist in, or encourage any activity which

could result in the inaccurate measurement or reporting

of the studentsÔ achievement.

10. Mr. McGowan offered insight regarding testing sec urity requirements for the

2020 - 2021 academic school year . The requirements outlined in the TASA apply to

the QSMA . Mr. McGowan testified that there were no instructions given to the

district to permit students to use study guides or any assistance during

assessments. To the contrary, the district was expected to proceed as it would

during a standard school year.

11. There were some accommodations for students related to the COVID - 19

pandemic. 1 For example, the district permitted students to complete their tests

online at home. To monitor the students , a process was created whereby a teacher

without a proctor would create a separate online Ñsupport channelÒ to assist

students when needed. While the teacher assist ed the students in the Ñ support

channel, Ò the other students would not be actively monitored. A second

accommodation for students who tested positive for COVID - 19 was to permit t hem

to complete the assessment after the standard test period.

12. Although there were accommodations for administering the assessments to

students due to the pandemic, there was no change to administration of the QSMA

or to the TASA .

1 On March 9, 2020, Governor Ron DeSantis entered Executive Order 20 - 52, declaring that a state of

emergency exists in Florida as a result of the COVID - 19 outbreak. That executive order was

extended by subsequent executive orders and was in effect during all times mater ial to this matter.

13 . Ms. Brown signed the TASA on August 31, 2020, which was in effect at all

times material to the allegations alleged in the Administrative Complaint.

Ms. Brown also acknowledged at hearing that the TASA was not amended during

the 2020 - 2021 school year.

Ms. BrownÔs Testimony

14. During the 2020 - 2021 school year, Ms. Brown served as a teacher at Horizon

Academy, teaching physical science for g rades eight and nine. She was assigned to

teach four different classes.

15. Ms. Brown described the 20 2 0 - 2021 school year as chaotic, abnormal, and

stressful for her students. Throughout the first semester, student status was often

changed between in - perso n and online instruction. There were times when students

were in class, and then, later sent home due to COVID - 19 related matters.

16. Ms. Brown, a contributor to developing the QSMA, understood that the

purpose of the QSMA is to monitor progress of stude nts. The test results are used

by teachers to identify best practices for evaluating student progress.

17. The first quarter QSMA was administered using an online platform,

Microsoft Teams. Thus, students were permitted to complete the exam online at

home . During administration of the first quarter QSMA, Ms. Brown monitored the

student s using the Teams platform.

18. At times when students had questions, she moved to the Ñsupport channelÒ to

assist students. Because she did not have a proctor to assist her , the students on the

main screen were not monitored during that time.

19. The second quarter QSMA was scheduled to be administered in January

2021. Approximately two days before winter break in December 2020, the School

Board notified teachers and student s that second quarter QSMA test would be

administered in person when the school reopened after the break. At the time , the

student schedules were not stable, as they were changing often due to the

pandemic.

20. Ms. Brown was responsible for administering the second quarter QSMA test

to her assigned students on January 7, 2021. On the date of the QSMA, students

appeared to be stressed about being sent home due to COVID - 19 and concerned

about their performance on the test.

21. Ms. Brown assessed her studen ts and noticed that students in two of her

classes were stressed about COVID - 19 and their performance on the test. Thus,

Ms. Brown made a Ñspur - of - the - momentÒ decision that it would be in the best

interests of the students to be permitted to use their stud y guides to assist them

during the test. She believed use of the study guides would empower the students

during a chaotic time.

22. She instructed the students as follows: ÑDonÔt worry about the QSMA. YouÔve

got the study guide. If you completed the study guide, just È donÔt let this add to

your stress. Just go ahead and you can use it in the test.Ò

23. Ms. Brown did not ask for permission before permitting students to use the

study guide. She was not authorized by any administrator to permit students to us e

the study guide. Ms. Brown acknowledged that the TASA was not amended to

permit variations in administration of the test. She simply made a unilateral

decision based on the circumstances and her experience as a teacher.

24. During the testing period, Mr . Perry and Ms. Lamb observed Ms. BrownÔs

students using study guides. Ms. Brown admitted to Mr. Perry that she permitted

the students in her first and fourth period classes to use study guides for the QSMA.

Of the approximately 49 students permitted to us e the study guides, only four

students used the guides. After the conversation with Mr. Perry, Ms. Brown

directed the students to put away the study guides and they were no longer

permitted to use them.

25. Ms. Lamb and Mr. Perry did not testify at the hea ring. However, their

written statements, which were included in the investigative report, were offered at

hearing. Petitioner established that the investigative report was admissible under

the business records hearsay exception and the public records hears ay exception. 2

However, the statements were not authenticated or adopted by the witness and

thus, the written statements from Ms. Lamb and Mr. Perry cannot be considered by

the ALJ in making findings of fact. The undersigned may, however, rely on these

wr itten statements to supplement or corroborate the witness testimony presented

at the hearing related to the use of study guides during the quarter two QSMA.

26. Throughout Ms. BrownÔs 27 - year career teaching, the second quarter QSMA

administered on Januar y 7, 2021, was the first time she permitted students to use a

study guide during testing. Ms. Brown explained that she did not believe the testing

circumstances were standard as in previous years due to the COVID - 19 pandemic.

27. Ms. Brown believed that there was no unfair advantage given to the students

who used study guides as she personally evaluated their performance and their

performance level.

28. Throughout her career with the School Board, Ms. Brown received positive

employment evaluations. M s . Br own ha s a prior history of receiving a reprimand for

an unrelated matter.

29. While her actions may have empowered the students, as she referred to it,

her actions were a violation of the security agreement. Nonetheless, Respondent

believed she was doing what was in the best interest of the children to protect their

mental health.

30. The study guide included guidance for scientific terms, definitions, and steps

to follow to solve an issue. However, the study guide did not provide direct answers

to the q uestions on the QSMA . It simply was a guide for preparation for the test.

The students could only use study guides that they completed prior to the test.

Additional Relevant Rules

31 . School Board Rule 6.27 provides , in pertinent part , as follows: ÑAn ef fective

educational program requires the services of personnel of integrity, high ideals, and

2 See § 90.803(6) and (8) , Fla. Stat. (2020) .

human understanding. All employees shall be expected to maintain and promote

these qualities.Ò

32. Section 6.235 of the CBA provides that:

(a) Employees must not be disciplined without Just

Cause. È

* * *

(d) Generally, the District will follow a policy of corrective

and progressive discipline (e.g., Verbal, [sic] Reprimand,

Written Reprimand, Suspension without Pay,

Termination from Employment) whereby less seve re

forms of discipline are issued prior to resorting to the

imposition of more severe sanctions for the same or

similar misconduct.

Ultimate Findings of Fact

3 3 . The evidence offered at hearing established by a preponderance of the

evidence that Ms. Brown permitted her students to use a study guide during

administration of the second quarter QSMA.

3 4 . The School Board proved by a preponderance of the evidence that Ms. Brown

assisted students in answering test questions by permitting the students to use

stu dy guides during the test .

3 5 . The School Board did not establish by a preponderance of the evidence that

Ms. BrownÔs conduct constituted willful neglect of duty, gross insubordination , or

unethical conduct.

C ONCLUSIONS OF L AW

3 6 . DOAH has jurisdiction ove r the subject matter and parties in this case,

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

3 7 . The School Board is a duly constituted school board charged with the duty to

operate, control, and supervise all free public schools within t he school district of

Marion County, Florida, under section 1012.22, Florida Statutes.

3 8 . This is an action in which Petitioner seeks to suspend Ms. BrownÔs

employment as a teacher with the Marion County School Board.

3 9 . The School Board has the burden o f proving the allegations set forth in the

SuperintendentÔs Administrative Complaint by a preponderance of the evidence, as

opposed to the more stringent standard of clear and convincing evidence applicable

to the loss of a license or certification. Cropse y v. Sch. Bd. of Manatee Cty. , 19 So. 3d

351 (Fla. 2d DCA 2009), rev. denied , 29 So. 3d 1118 (Fla. 2010); Cisneros v. Sch. Bd.

of Miami - Dade Cty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

40 . The preponderance of the evidence standard requires proof by Ñ the gr eater

weight of the evidence,Ò BlackÔs Law Dictionary 1201 (7th ed. 1999), or evidence

that Ñmore likely than notÒ tends to prove a certain proposition. See Gross v. Lyons ,

763 So. 2d 276, 289 n.1 (Fla. 2000).

4 1 . The allegations of fact set forth in the charging document are the facts upon

which this proceeding is predicated. Once the School Board has delineated the

offense alleged to justify termination in its notice of recommendation of termination,

that is the only ground upon which dismissal may be pr edicated. Trevisani v. DepÔt

of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005). See also Klein v. Dep't of Bus.

& Prof'l Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Cottrill v. DepÔt of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Due process prohibits the School Board

from disciplining a teacher based on matters not specifically alleged in the notice of

recommendation of termination. See Pilla v. Sch. Bd. of Dade Cty. , 655 So. 2d 1312,

1314 (Fla. 3d DCA 1995); Texton v. Hancock , 359 So. 2d 89 5, 897 n.2 (Fla. 1st DCA

1978); see also Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d 1324, 1325 (Fla. 1st DCA

1985)(ÑFor the hearing officer and the Board to have then found Dr. Sternberg

guilty of an offense with which he was not charged was to deny him due process.Ò).

4 2 . Section 1012.01(2) classifies Ms. Brown as Ñinstructional personnel.Ò

4 3 . Section 1012.33(6)(a) states that Ñ[a]ny member of the instructional staff È

may be suspended or dismissed at any time during the term of the contract for just

cause as provided in paragraph (1)(a).Ò

4 4 . Section 1012.33(1)(a) defines Ñjust causeÒ as including, but not limited to:

[T]he following instances, as defined by the State Board of

Education: immorality, misconduct in office,

incompetency, two consecuti ve annual performance

evaluation ratings of unsatisfactory under s. 1012.34, two

annual performance evaluation ratings of unsatisfactory

within a 3 - year period under s. 1012.34, three consecutive

annual performance evaluation ratings of needs

improvement o r a combination of needs improvement and

unsatisfactory under s. 1012.34, gross insubordination,

willful neglect of duty, or being convicted or found guilty

of, or entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude.

4 5 . Florida Administrative Code Rule 6A - 5.056(2) defines misconduct in office, in

pertinent part, as:

(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 . È

4 6 . Rule 6A - 5.056(4) defines gross insubordination as Ñ 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. Ò

4 7 . Rule 6A - 5.056(5) defines willful neglect of duty as Ñ intentional or reckless

failure to carry out required duties. Ò

4 8 . Rule 6A - 10.042 provides , in pertinent part , as follows:

Statewide and District assessments shall be maintained

and administered in a secure manner such that the

integrity of the tests shall be preserved.

(c) Examinees shall not be assisted in answering test

questions by any means by persons administering or

proctoring the administr ation of any test.

* * *

(f) Persons who are involved in administering or

proctoring the tests or persons who teach or otherwise

prepare examinees for the tests shall not participate in,

direct, aid, counsel, assist in, or encourage any activity,

which c ould result in the inaccurate measurement or

reporting of the examineesÔ achievement.

4 9 . Rule 6A - 10.081, the Principles of Professional Conduct for the Education

Profession in Florida, prescribes standards of conduct applicable to instructional

personnel . The rule contains a list of aspirational conduct. However, PetitionerÔs

administrative complaint does not specifically state which provision applies to

RespondentÔs conduct.

50 . The ethical principles in rule 6A - 10.081(1) have been described as

Ñaspirati onal in nature, and in most cases [are] not susceptible of forming a basis for

suspension or dismissal[ ,] Ò Sarasota County School Board v. Simmons , Case No.

92 - 7278 (Fla. DOAH Nov. 9, 1993 ; Fla. Sarasota Cty. Sch. Bd. Aug. 21, 1994 ), and

Ñof little practi cal use in defining normative behavior.Ò Miami - Dade Cty. Sch. Bd. v.

Lantz , Case No. 12 - 3970 (Fla. DOAH Jul. 29, 2014). By contrast, the disciplinary

principles in rule 6A - 10.081(2) enumerate specific ÑdosÒ and ÑdonÔtsÒ to put a

teacher on notice concernin g forbidden conduct. See Miami - Dade Cty. Sch. Bd. v.

Brenes , Case No. 06 - 1758 (Fla. DOAH Feb. 27, 2007; Fla. Miami - Dade Cty. Sch. Bd.

Apr. 25, 2007). Ñ Thus, it is concluded that while any violation of [rule 6A -

would also be a violation of [rule 6A - 10.081(1)], the converse is not true.Ò Id . ÑPut

another way, in order to punish a teacher for misconduct in office, it is necessary

but not sufficient that a violation of the broad ideal articulated in [rule 6A -

ecessary and sufficient that a violation of a

specific rule in [rule 6A10.081(2)] be proved.Ò Id .; see Miami - Dade Cty. Sch. Bd. v.

Regueira , Case No. 06 - 4752 RO n.4 (Fla. DOAH Apr. 11, 2007; Fla. Miami - Dade

Cty. Sch. Bd. May 25, 2007).

5 1 . The School Board alleged that Respondent permitted students to use study

guides during administration of the second quarter QSMA.

5 2 . The School Board proved by a preponderance of the evidence that

Respondent violated rule 6A - 10.042 (c) and (f) and School Board Rule 4.61( c) and (f),

by establishing that Respondent , as the administrator or proctor of the second

quarter QSMA, assisted students in answering test questions by permitting the

students to use study guides during the test.

5 3 . The School Board also proved by a pre ponderance of evidence that

Respondent violated rule 6A - 5.056(2)(b) and (c), by establishing that Respondent

violated School B oard adopted rule 4.61.

5 4 . The School Board did not prove that Respondent violated rule 6A - 5.056(4)

and (5). Rule 6A - 5.056(4) req uires that Respondent intentionally refuse to obey a

direct order. While Respondent permitted students to use study guides during a

test, a direct order was not involved. Respondent simply failed to comply with the

rules governing administration of the tes ts. Furthermore, when Mr. Perry directed

Ms. Brown to terminate the studentÔs use of the study guides, Ms. Brown complied

with the direct order. Thus, there is insufficient competent substantial evidence

that Petitioner established that RespondentÔs conduc t amounts to gross

insubordination in violation of r ule 6A - 5.056(4).

5 5 . Rule 6A - 5.056(5) requires that Respondent intentionally fail to carry out

duties. Respondent pursued the course of action, albeit without authorization, that

she believed appropriate given the circumstances. There is not sufficient competent

substantial evidence that she intentionally or recklessly failed to carry out her

duties. Thus, Petitioner did not establish that RespondentÔs conduct was willful

neglect in violation of rule 6A - 5 .056(5).

5 6 . Petitioner did not prove by a preponderance of the evidence that Respondent

violated rule 6A - 10.081. There was not sufficient evidence offered at hearing to

establish that Respondent did not maintain integrity, high ideals, and human

understan ding in her role as a teacher. To the contrary, Respondent permitted

students to use study guides prepared by them to help with stress related to

performance during a pandemic. Her conduct was directly related to her belief that

she was doing what was in t he best interests of her students based on the

circumstances. Thus, Petitioner did not prove that Respondent violated rule

6A - 10.081.

5 7 . Based on the findings above, p the School Board has demonstrated, by a

preponderance of the evidence, just cause in thi s matter to discipline Respondent.

5 8 . Although Petitioner has established just cause to discipline RespondentÔs

employment, the CBA provides for progressive discipline. The record did not

establish competent substantial evidence that the appropriate disci pline in this

matter must fall outside the progressive discipline scale. See Costin v. Fla. A&M

Univ. Bd. of Trs. , 972 So. 2d 1084, 1086 - 87 (Fla. 5th DCA 2008) (holding whether

employeeÔs misconduct justified dismissal based on terms of the universityÔs

pr ogressive discipline rule was Ñan Óultimate factÔ best left toÒ the ALJ).

R ECOMMENDATION

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

R ECOMMENDED that the Marion County School Board enter a final order as follows:

A. Finding th at Ms. Brown violated rule 6A - 5.056(2)(b) and (c), by violating

board adopted rule 4.61 ;

B. Finding that M s . Brown did not violate Rules 6A - 5.056(4)(5) or 6A - 10.081;

and

C. Issuing a written reprimand against Respondent.

D ONE A ND E NTERED this 8th day of July , 2021 , in Tallahassee, Leon County,

Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 2021.

C OPIES F URNISHED :

Mark Herdman, Esquire Mark E. Levitt, Esquire

Herdman & Sakellarides, P.A. Allen, N orton & Blue, P.A.

Suite 110 Suite 100

29605 U.S. Highway 19 North 1477 West Fairbanks Avenue

Clearwater, Florida 33761 - 1526 Winter Park, Florida 32789

Dr. Diane Gullett, Superintendent Matthew Mears, General Counsel

Marion C ounty School Board Department of Education

512 Southeast Third Street Turlington Building, Suite 1244

Ocala, Florida 34471 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 issue the Final Order in this case.