STATE OF FLORIDA

DIVISION OF ADMINISTRTIVE HEARING

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

) Case No.: 13-0441

vs )

)

SHARON SANDERS, )

)

Respondent )

_________________________________/

RESPONDENT’S PROPOSED RECOMMENDED ORDER

COMES NOW the Respondent, Sharon Sanders ("Sanders"), by and through the

undersigned attorney of record, and files this proposed recommended order within the time

period permitted by the Administrative Law Judge. Sanders states that the disciplinary action

taken by the Duval County School Board ("School Board" or “district”) is not supported by

competent evidence and that the disciplinary action against Sanders therefore must be reversed.

Findings of Fact

1. The School Board demoted Sanders on January 3, 2013. Pet. Ex. 3 for conduct

allegedly violating sections 1008.22(4) and 1008.24(1), Florida Statutes, as well as Florida

Administrative Code provisions 6B-1.001(2) and 6B-1.001(3)1. The parties stipulated that the

issues for resolution were whether the grounds for discipline are supported by the evidence, and

whether the charges, if proven, support the level of discipline imposed on Sanders.

2. Respondent Sharon Sanders has served as an eductator for twenty-five years. (Tr.

625:3-5.) She worked in a fine arts school for ten years, after which she earned her Master's

1 Pet. Ex. 1A. The current versions of the rules are 6A-10.080(1) which replaced 6B-1.001(2) and 6A-10.080(3)

which replaced 6B-1.001(3). Broward County School Board vs. Weinberg, Case No. 12-3644TTS, 2013 Fla. Div.

Adm. Hear. LEXIS 322 (June 6, 2013, ALJ Edward T.Bauer).

degree in elementary education, certification in gifted education, and certification in K-12

reading. (Tr. 625: 23-25). Sanders has worked for Duval County for approximately fourteen

years, in which time she has served as an instructional coach; an America's Choice cluster leader,

and a leadership trainer for the district. (Tr. 626: 7-20.). In her roles as a district-level leadership

trainer, Ms. Sanders conducted leadership training for Duval’s principals in Duval County for

close to four years. Id. Her movement from district positions were not demotions, but reflected

the importance that previous superintendents placed on returning capable administrators to

school leadership positions, and Ms. Sanders’ desire to return to a principalship. (Tr. 627: 11-25).

3. Following her first position with the district, Ms. Sanders served as an elementary

school principal, and then was named Executive Director of Language Arts for four years. Ms.

Sanders then moved back to a principal position at Windy Hill, serving as the principal for four

and a half years. (Tr. 627:1-11).

4. When asked about her accomplishments as an educational leader, Sanders stated

that she was most proud of her work to develop and encourage new teachers. (Tr. 628:7 –

629:17). She also explained that she was proud of her relationships with her staff, and her

success in involving community organizations and business partners in her school. Id. She has

been recognized by the Florida Department of Education as one of the top Florida principals in

community partnerships; by HandsOn Jacksonville as its Literacy Matters awardee; by Pearson

Learning as principal of one of the top ten schools in the nation in student technology gains; and

by President Obama as one of the national Points of Light Educators. Id.

5. On March 5, 2012, the School Board received an anonymous complaint that a

Windy Hill teacher, Chris Bacca, had allegedly learned the prompt for the February 28, 2012

FCAT Writes examination and had shared it with the children taking the test. (Tr. 241-242).

Duval County District Testing Coordinator Tom Scott travelled to the school on March 6th

, met

with Ms. Sanders, and began taking statements from teachers. (Tr. 245-249). While Scott spoke

briefly with Ms. Sanders, who showed him the area where the testing took place (Pet. Ex. 1, at 3;

Tr. 248:13-24), his first full actual interview was with Testing Coordinator Kasey Williams. (Pet.

Ex. 1, at 3).2

6. After the first day of interviews, Scott brought in Jessica Altman, the School

Board’s Professional Standards investigator, to address any potential disciplinary issues. (Tr.

257:4-13). Scott was present for all of the interviews Altman conducted. (Tr. 568:23-569:4).

7. It is quite clear to both Scott and Altman that Kasey Williams failed to perform

numerous duties as Testing Coordinator. Scott agreed at trial to the following listing of Williams’

failures: failing to provide training; failing to pass out training materials; failed to collect seating

charts at the end of the exam; fabricating the seating charts when she realized that she needed

them; failing to inform teachers of need to maintain seating charts; and turned in security

statements with false information. (Tr. 352: 10-20). Williams further failed to check the testing

environment prior to the test to ensure that no instructional materials were present. (Tr. 336:2-

13). A simple review of the records already sent to Scott (Resp. Ex. 13) would have revealed that

Williams conducted make up exams on the Friday after testing (See Tr. 84:3-7), which violates

Florida law regarding the time permitted for such exams. (Tr. 342:20-343:8). Although testing

coordinators generally begin weeks or months beforehand preparing for an exam (Tr. 430:3-10),

Williams had waited until the last minute to perform any of her duties, and failed to perform

many of them.

2 The allegations regarding knowing the reading prompt were never substantiated. (Tr. 289:19-21).

8. When Tom Scott first came to Windy Hill, Principal Sanders told him that she was

experiencing problems with Williams, based on Williams’ personal problems. (Tr. 248:13-24).

Numerous witnesses testified to Williams’ emotional problems at work, and Sanders had started

becoming concerned about the effect that Williams’ personal problems were having on her job

performance. (Tr. 640-641). Williams was dealing with family problems, the stress of working

additional time-consuming jobs, as well as the need to care for two small children. (Tr. 474:25-

475:7). Two days before the exam, Williams sent a Facebook message to her friends, asking

them for help in moving out of the house she was sharing with her estranged husband. (Tr. 473:8-

474:5). In fact, Sanders consulted with her own supervisor, who recommended district

counseling resources for Williams, which Sanders made available to her. (Tr. 641-642). Despite

Williams’ history of repeated, extreme emotional outbursts at work (Tr. 442:24-443:10),

however, Sanders and her administration treated Williams with compassion and understanding,

and even permitted her to flex her schedule to come to work late in order to attend to personal

matters. (Tr. 642-643).

9. Instead of evaluating the conduct of a testing coordinator, who was obviously

dealing with personal problems, and who had failed to perform her job, Scott and Altman

accepted at face value Williams’ deflection of blame onto Sanders. The investigators blamed

Sanders for Williams’ failure, reasoning that Sanders had somehow “taken over” the testing

coordinator position. (Tr. 336-337; 338-339; 349:21-350:14). Other than ruling out the use of

partitions and directing Williams to return to her office to start the testing, however, there is no

evidence that Sanders involved herself in any matter involving the testing coordinator position.

Investigator Scott placed great emphasis on the fact that Sanders allegedly directed Williams to

go to her office “and stay there.” (Tr. 338). At trial, when asked if she bore responsibility for

various failures in the exam process, Williams stated “I had nothing to do with the exam. Ms.

Sanders ran the exam.”(Tr. 117:24-118:5).

10. If Scott or Altman had interviewed the relevant witnesses at the school, they

would have learned that Williams continued to serve as the test coordinator. The investigators

did not even ask if Sanders was present in the testing area. (Tr. 275:19-276:5). The investigators

didn’t check to see that Williams had passed out testing materials to the administrators and

proctors. (Tr. 339: 12-21). They didn’t check to see whether the materials were returned to

Williams’ testing office (Tr. 340: 5-18). The investigators had no evidence as to whether

Williams conducted the makeup exams, and were shocked that they had been conducted illegally

late. (Tr. 343:20-343:8). Even Kasey Williams conceded at trial that she was never prevented by

Sanders from leaving her office. (Tr. 78:4-12). Indeed, if they believed that Williams were

somehow confined to her office, the investigators’ failure to discover that she had actually been

in another building talking to the speech pathologist immediately before leaving campus, (Tr.

341:16-342:2; 478:3-17), should have dispelled their mistaken belief in Williams’ wrongful

confinement.

11. The district’s investigators further based their conclusion that Williams was

relieved of her testing coordinator duties on Williams’ claim that she was escorted off of campus

during the testing process. (Tr. 47:11-20). Based on Williams’ statements, the investigators

concluded that she was not permitted to return to campus to conduct the makeup examinations.

(Tr. 342: 11-19). At the hearing, however, Williams conceded that she only failed to return the

day after the exam because the makeup examination materials were not ready to send to the

district. (Tr. 81:15-82:9). Williams did conduct the makeup exams on Friday (Tr. 84:3-7), after

being out of school on Thursday for an off-campus meeting. (Tr. 48:22-24). Despite making the

extreme allegation that Williams was forcibly escorted and not permitted to return, the district

never interviewed the person alleged to have involuntarily escorted Williams, or the person who

was in the room with Williams immediately before her departure. (Tr. 340:342).

12. If the district investigators had interviewed Turner, they would have heard quite a

different story than the claim of a forced “escorting” off of campus and refusal to permit

Williams to return. Turner testified that she and Williams had a close and personal relationship,

and had spoken about both personal and work matters both during and after work hours. (Tr.

470:25-471:21). After testing, staff members came to Turner and reported that Williams was

upset and crying in the speech pathologist's office, and Turner went to her and suggested "if

testing is finished. . . why don't you go home." (Tr. 476:4-17). Turner never ordered Williams

home, and only walked her to her car because she was worried about her. (Tr. 476:25-477:13)

Turner explained that Williams was often working very late and performing other work in

addition to her care for her children, and she was worried about the toll that the family issues

were having because Williams was "stretching herself very thin.” Id.

13. Prior to telling Williams she could leave campus, Turner spoke with Sanders

about her concerns over Williams' welfare, and Sanders said that as long as her testing duties

were over, it would be fine for Williams to leave to address her personal issues. (Tr. 480:9-

481:16). Sanders never prohibited Williams from returning to campus, but did tell her that she

could take some time to find a place to live if she needed to do so. (Tr. 672:23-673:4). Williams

denied that she wanted to leave campus or had any reason to want to leave. She denied that she

was planning to move out of her home that week (Tr. 48:13-21), and denied recalling that she

had sent a Facebook message stating that she had planned to take multiple days off of work that

week for such purpose. (Tr. 82-83). Jennifer Turner, however, testified that Williams had sent a

Facebook message to Turner, Turner’s husband, and a few other friends asking for help the next

weekend in moving, and stating that she planned to take off a couple of days that week to start

the moving process. (Tr. 473:8-474:3).

14. At the hearing, Williams claimed, for the first time (see Pet. Ex. 1 and 2) that Ms.

Turner had actually come to her before the examination, and asked her to leave the campus

before the test began. Williams claims that Turner brought up the issues that Williams was

having with her marriage, and said that she needed to get her act together and leave her husband.

(Tr. 40:7-15). When she first mentions the morning meeting with Turner, she mentioned nothing

about how long it took, or whether Turner detained her or made her late. Id. Later, when pressed

about why she had not taken the time to perform duties prior to the test, Williams claims that she

was unable to perform the duties because “Ms. Turner spent 40 minutes in my office berating

me.” (Tr. 109:19-110:5). Although Ms. Williams agreed that an administrator's coming into the

office on the morning of testing to say that the coordinator should go home would be a highly

significant event, she concedes that neither Altman or Scott's notes contain any mention of the

alleged morning meeting with Turner, and all that is recorded is the later meeting immediately

before Williams left campus. (Tr. 40:7-15). The meeting did take place, and Ms. Turner

explained that she went to Williams' office the morning of the test “because she came into work

very upset” and Ms. Turner tried to calm her. (Tr. 474:19-475:7). Jennifer Turner, however,

never detained Williams or prevented her from doing her job that morning, and did not suggest

until later in the day that she go home. (Tr. 475:18-476:4).

15. Kasey Williams told the investigators that she wanted to use partitions on the day

of testing, and the investigators concluded that Sanders’ decision to not use partitions somehow

equated to sanctioning the seating of children too close together. Each witness who testified was

very familiar with the Department of Education requirement that students sit at least three feet

away from each other, and don’t face each other. Nothing in the DOE’s regulations permits a

school to circumvent the three foot requirement with the use of partitions. Yet Williams testified

that she wanted to use the partitions because she was planning to seat the students too close

together and across from each other. (Tr. 44:11-21). Williams claimed, on direct examination,

that she complained about the use of Harris Hall, but states that the only reasons were that the

facility was too big and made no mention of problems in spacing children. (Tr. 35:14-24). She

admitted that, if there was a problem with the spacing of the children, the educators could have

easily used other classrooms. (Tr. 115:20-116:4). Tom Scott explained that the students could

have been simply spaced further apart at the tables if the spacing was insufficient. (Tr. 330:4-9).

16. Williams admitted that she was aware of the spacing problem at the time that

practice testing was conducted in the hall the week before (Tr. 113:8-23). Her February 22, 2012

email regarding testing training (Pet. Ex. 7) reflects that Williams was still unaware of where the

testing would take place a week before the exam. Despite the fact that she had could show no

follow up email similar to Pet. Ex. 2, Williams claims that she spoke with Sanders the week

before the test regarding the use of partitions. (Tr. 114:24-115:8). She convinced Scott that she

had such a discussion, and Scott concluded that Williams learned through her discussions with

Sanders the week prior to testing that partitions would not be used. (Tr. 322:12-25). Indeed, it

would be natural and logical to assume that Williams would have learned of the partition

decision if she had spoken to Sanders, as she claims. However, the facts lead to the opposite

conclusion: there is no reason that Williams would round up partitions on the eve of the exam,

and no reason she would have been surprised at Sanders’ testing day rejection of partitions if she

indeed had spoken with Sharon Sanders about the issue. Based on this logical inconsistency and

the other inconsistencies in her testimony, Williams’ account of speaking with Sanders regarding

the partition issue is not credible.3

17. Sanders was not present when the students were seated at the tables for testing

(Tr. 327:11-14), and the testing administrators placed the students in their seats. (Tr. 353:1-

354:12). Sanders gave a table and chairs chart to the custodian, but it was not provided to any

educator for student seating, and she never communicated to any educator how the students

should be arranged. (Tr. 650:23-651:21). While various witnesses claimed that students were

either seated too close or across from each other, the evidence presented did not establish that

seated the students to pursuant to DOE spacing requirements was impossible with the tables

used. No witness testified to the width of the tables, and the estimates of table length ranged up

to 15 feet in length. (Tr. 205:20-206:7). Even if the tables were ten feet long, as most witnesses

estimated, without knowing the table width, it is impossible to say that three foot spacing could

not have been accomplished. Ms. Sanders was not involved in seating the children, no

competent evidence establishes that she knew of any seating problems, and numerous witnesses

each testified that any seating problem could have, and should have, been addressed by the test

administrators and testing coordinator.

18. In addition to the statements identified above, Williams made a number of other

statements during the investigation and during the hearing that lead to the conclusion that she is

simply not a credible witness. Ms. Williams claimed that she was not trained for the FCAT

Writing exam until the Thursday before the exam (Tr. 40:7-15), but in her email two days before

3 Additionally, prior to February 28th, Williams’ good friend, Assistant Principal Jennifer Turner had worked with

Williams in preparation for the exam - assisting in selecting proctors and helping her determine who may have

partitions for the exam. Williams never shared any concern with Turner regarding any issue with the examination,

which would have been natural if Williams had any concerns, given the trusting and personal relationship that had

developed between the two. (Tr. 472-473; 484-485).

the supposed district training date, she failed to mention any late district training and instead

apologized because “This one snuck up on me,” (Pet. Ex. 7). Further, Tom Scott testified that the

district does not normally conduct regular or makeup training so close to the test date (Tr. 291),

and no evidence ever established that such an extraordinarily late training date was used for this

exam. When confronted with the fact that she never completed teacher training, Williams

claimed that she typed up brief training notes and gave them along with the testing manuals. (Tr.

86:21-87:9). No such notes were ever presented, and no witness ever testified to having been

given such notes. No reference to the training notes was ever made in either Scott's or Altman's

reports. Williams claimed to have discussed the Harris Hall seating arrangement with Tom Scott

(Tr. 35:14-24), but Scott recalls no mention of any such issue. (Tr. 86:21-87:9). Although

Williams told Investigator Altman testing training did not take place because Sanders and Becky

Nelson blocked it (Tr. 583-584), she testified at the hearing that she did not recall the reasons that

the testing did not take place. (Tr. 88). Nevertheless, she testified that she had a scheduled off-

campus meeting on the Monday on which she had originally planned to conduct the training.

(Tr. 188:16-20).

19. Williams continued to come up with new and different ways to deflect blame

from herself during the hearing.. Williams’ first time mention of Turner allegedly berating her

and preventing her from doing her job on the morning of the exam is discussed above. For the

first time, Williams claimed that she had told the teachers “six different times” of the need for the

seating charts. (Tr. 85:1-11). For the first time, Williams claimed that Sanders “forcefully”

ordered her three different times to leave Harris Hall. (Tr. 46:4-15). Each of these matters would

have normally been mentioned during the course of an investigative interview, and Williams’

failure to mention them until the hearing undermines her credibility.

20. The district never questioned Sanders regarding any of the allegations eventually

sustained against her (Tr. 569:17-20). In fact, the district never changed the focus of its

investigation from Bacca to Sanders. (Tr. 572-574). Altman sustained a number of allegations

against Sanders in a report variously dated as having been completed sometime between October

2012 and January 2013.4 Altman admitted that she sustained allegations against Sanders, despite

having no evidence to support her conclusions, for the offenses of: improperly spacing of

students (Tr. 581:20-582:5); knowingly permitting education materials on the walls (Tr. 588:9-

589:7); failing to maintain seating charts (Tr. 589:22-590:3); sending the testing coordinator

home before testing ended (Tr. 593:11-594:18); and violating standards or practices regarding the

testing of ESE students (594:24-595:8).

21. The allegations against Sanders appear to be contained on December 21, 2012

memorandum between Sonita Young and the Superintendent, Pet. Ex. 1. Although Investigator

Altman makes investigative findings, Chief Human Resources Officer and the Superintendent

make the final decision as to what charges are sustained. (Tr. 609:13-24). The memorandum

claims that Sanders “directed staff to violate testing protocols, failed to report violations that

were known to her at the time of the administration of the test, and made inappropriate

comments to staff regarding the investigation of the reported infractions.” The notice cites

sections 1088.22(4) and 1.008.24(1), Florida Statutes, as well as two provisions of the Florida

Administrative Code. No evidence was presented to suggest any violations by Sanders of

subsections 1.008.24(1)(e) (security rules for testing administration) . Section 1.008.24(1)(g)

4 Altman admitted that she shredded multiple versions of previous reports, and admitted that she erroneously

included an October 2012 completion date on her report, when many of the activities in Pet. Ex. 2 took place after

such date. (Tr. 564-567). She also shredded her investigative notes of this matter. (Tr. 563). Such actions appear to

constitute violations of the Florida Public Records Act, and while such violations are not directly germane to the

issues in this case, they do provide addition reasons to doubt the validity of an already suspect investigation. .

(participating in, directing, counseling, assisting or encouraging any act made illegal by the

statute) creates no additional substantive duties, and rather only states that a violation of any

other provision of the statute is a violation of this subsection. Section 1.008.24(1)(f) renders

unlawful the knowing failure to follow test administration instructions, and the school district has

listed the following test administration manual provisions: (1) School Assessment Coordinator

not able to monitor testing rooms; (2) Spacing between students (3 feet); (3) Students seated at

tables facing each other; (4) Visual Aids not removed or covered in testing room; (5) Seating

charts not properly maintained; (6) Not able to supervise make-up administrations; (7) No

training for test administrators or proctors.

22. As to the first training manual citation, “School Assessment Coordinator not able

to monitor testing rooms,” page 47 of Pet. Ex. 9 (Bates No. P9-0057) provides that the testing

coordinator must “monitor each testing room to ensure that test administration and test security

policies are followed.” It also requires the testing coordinator to perform other duties, including

being “available during testing to answer questions from test administrators.” This charge arises

from the investigators’ conclusion that Kasey Williams was somehow forbidden to leave her

office during the testing process. Williams testified that she was never prevented by Sanders

from leaving her office. (Tr. 78:4-12). Prior to leaving campus, Williams had walked to another

building where the speech pathologist’s office was located, (Tr. 341:16-342:2; 478:3-17), so the

facts do not support and finding that Williams was prevented from coming to the testing area.

23. Tom Scott admitted that some testing coordinators stay in a central location

during testing. (Tr. 345:24-346:20). Becky Nelson testified that in her more than thirty years of

experience in various schools and in serving as a testing coordinator, the testing coordinator stays

in one place to pass out and receive the test and to be available if any concern arises. (Tr.

444:13-445:12). In Nelson’s experience, the testing coordinator has never left the central

location unless an issue arises in which the testing coordinator is asked to respond. Id. Nelson

was emphatic that the testing coordinator "Always . . Always. Always" stays in a central

location. Id. Jennifer Turner testified that the testing coordinator would normally stay in the

office during testing, and if any issue arose with the test, that the coordinator would send Turner

or one of the staff persons to address the issue. (Tr. 486:10-487:3). The arrangement used by

Windy Hill and other schools would appear to satisfy the requirement by permitting monitoring

when necessary, but also permitting the testing coordinator to “be available” as also required by

the manual. There is no evidence that Sanders violated this provision when she directed the

testing coordinator to return to her office to begin the testing.

24. While the district’s investigators disagreed with Sanders’ decision to send

Williams to her office to begin the testing process, they did not consider the context that justified

Sanders’ decision. There is no question that Williams was emotionally upset on the day of

testing. Nelson testified that she and many other persons were very concerned for Williams'

welfare at the time of this exam. (Tr. 455:16-466:20). In addition to the observations of Ms.

Turner, Branaii Kennell found Ms. Williams very emotionally upset on the examination date. (Tr.

178:18-22). Williams admitted that she did not have enough time to do the things that she had

planned to do on the morning of the test, and testified that she only had a half hour to perform

her tasks when she had planned to have an hour and a half. (Tr. 109:19-111:13). Williams had

been searching around for different partitions, even discussing with Kennell what type of tape to

use to secure the homemade partitions that had been made. (Tr. 104: 9-18). By the time that she

arrived at Harris Hall, Williams didn’t know if she had enough partitions to use. (Tr. 45:9-17).

Kennell agreed that the entire partition process was “a little rushed.” (Tr. 173: 9-19). Robin

Boney agreed that the partition process was “not very well planned.” (Tr. 217:19-22).At the time

that Williams is coming in to fasten and deploy the partitions, the children were already in the

room, it was minutes before testing started, and Ms. Sanders was giving her pre-testing pep talk.

(Tr. 218:17-219:16). The process was very hectic and the educators were running late. (Tr.

441:12-442:6). Ms. Sanders saw that Williams was hurried and agitated and she did not want

Ms. Williams’ demeanor to affect the children. (Tr. 658:2-22). She therefore told Williams to

return to her office to begin checking materials out to teachers so that the testing could begin.

(Tr. 656:23-657:8).

25. As to the second testing manual allegation, “Spacing between students (3 feet),”

the paragraphs above addressed the fact that Sanders was not involved with seating the students,

and had no knowledge of any violation, if any violation took place. The same conclusion is

reached for the third testing manual allegation, “Students seated at tables facing each other.” The

sixth testing manual allegation, “Not able to supervise make-up administrations”was not proven,

since Kasey Williams actually conducted the make-up examination administration.

26. As for the fourth allegation, “Visual Aids not removed or covered in testing

room,” there was no evidence presented that Ms. Sanders was aware of what materials may have

been on the bulletin boards in the testing room on the day of testing. Pet. Ex. 9, p. 46 (Bates No.

P9-0056) provides that the testing coordinator is charged with removing unauthorized materials:

“In your walk-through of the school prior to testing, check for an remove all unauthorized visual

aids posted in classrooms. . .” The term “unauthorized visual aid” appears to be defined on page

18 of the manual (Pet. Ex. 9) as “including word lists, spelling lists, word definitions,

punctuation carts, transitional devices, organizational patterns, etc.” The definition does not

include student work, and at least one teacher appeared to have believed that student work did

not qualify as a “visual aid.” (Tr. 174:9-20). Further, it is unknown whether the students could

have seen the items in question. (Tr. 122:20-123:8). However, the fact remains that, from where

Sharon Sanders was located in Harris Hall, she did not notice any student writing materials on

the bulletin boards. (Tr. 683:21-684:9). Apparently, Sanders’ failure to notice the items was not

unreasonable, given that six or seven other educators, some of whom (testing administrators and

the testing coordinator) were specifically charged with examining the room for unauthorized

visual aids, likewise did not notice any questionable materials. Sanders appropriately expected

that the testing administrators and testing coordinator, who are specifically required to review the

rooms for unauthorized materials (Pet. Ex. 9, pp. 18, 46). Indeed, Tom Scott testified that the

testing coordinator should have walked through and checked the room for such materials well in

advance of the test (Tr. 337:12-14), and it would have been very reasonable to expect her veteran

testing coordinator to have performed this duty.

27. As to manual provision 5, “Seating charts not properly maintained,” Investigator

Altman admitted that there was no evidence to suggest that Sanders knew or had any reason to

know of any impropriety or problem with the seating charts. (Tr. 590:10-591:24). The hearing

provided no additional evidence of Sanders’ culpability. Sanders did explain the new

requirement in a planning meeting, but only because she had heard of the new requirement, and

not because she had any duties associated with the charts. (Tr. 656:3-22). Tom Scott testified

that the seating charts are generally turned in with the completed examinations (Tr. 337:24-

338:23), so it is strange that Williams failed to note that the seating charts were not turned in to

her with the rest of the testing materials. The testing coordinator is charged with ensuring that

accurate seating charts are turned in. (Tr. 337:15-22). There is no evidence that Sanders was

aware of Williams’ failure to instruct about the need for seating charts, failure to obtain them

after the test, or fabrication of some of the charts.

28. The final testing manual provision listed in the charging document is, “No

training for test administrators or proctors.” No evidence was presented that Ms. Sanders

inhibited, restricted, or prevented any training from taking place. While Williams initially

claimed that Sanders had somehow blocked or prohibited training, she testified at the hearing

that she did not recall the reasons that the testing did not take place. (Tr. 88). In fact, the only

evidence regarding Ms. Sanders’ involvement with the training is Pet. Ex. 7, in which Sanders

accommodates Williams’ plans to schedule the last-minute training that, for some reason, never

occurred.

29. Since Kasey Williams had served as testing coordinator in the past (Tr. 258:20-

24), and since she had performed her duties adequately, Sharon Sanders had no reason to believe

that Williams would fail to perform those same duties for the examination in question. While

Sanders had concerns about Williams, she explained that those concerns were limited to

Williams’ ability to constrain her emotions. (Tr. 640-641). She explained that when she spoke

with Scott and Altman about Williams, she “did not think she would not do her job, but I did

know that -- that she was not 100 percent herself. (Tr. 641:20-22). In fact, after the FCAT Writes

exam, Sanders asked Williams to remain as a co-testing coordinator with another teacher, in the

belief that Williams could still do the job but needed support during a difficult time in her life.

(Tr. 680:18-23). Williams had not demonstrated to Sanders by the time of the exam that she was

incapable of performing her duties, and Williams was unaware of any of her failures to perform.

30. The charge memorandum, Pet. Ex. 1, also alleges a violation of section

1088.22(4), Florida Statutes, which provides:

Beginning with the 2008-2009 school year, a district school board shall prohibit

each public school from suspending a regular program of curricula for purposes of

administering practice tests or engaging in other test-preparation activities for a

statewide assessment. 5

The district never presented any evidence that it had taken any action to “prohibit each public

school from suspending a regular program of curricula . . .” Given that the statute is not self-

executing, the district would have to present some evidence that it complied with the statutory

provision and created a rule or directive, should it wish to successfully charge Ms. Sanders with

a violation of the statute. It has not provided any such evidence (Tr. 303:22-304:4), and therefore

charges under this statute cannot be sustained.

31. Even beyond the technical defense, however, no evidence was presented to

suggest that the Windy Hill writers’ camp would have violated the statutory provision if

implementing action had been taken. District Testing Coordinator Tom Scott testified that a

school does not violate the statute if it were to “make up” the time lost to other subjects during

the writers’ camp. (Tr. 297:20-298:2). The investigators in this case never evaluated the actual

writers’ camp curriculum, and never spoke with the persons who designed the camp. (Tr. 298-

300). In fact, Scott testified that he never checked to see if the time spent in writers’ camp was

5 The statute further provides:

However, a district school board may authorize a public school to engage in the following test-

preparation activities for a statewide assessment:

. . .

(e) Administering a practice test or engaging in other test-preparation activities for the statewide

assessment which are determined necessary to familiarize students with the organization of the

assessment, the format of the test items, and the test directions, or which are otherwise necessary

for the valid and reliable administration of the assessment, as set forth in rules adopted by the State

Board of Education with specific reference to this paragraph.

Tom Scott testified that this exception permitted only a single day of training, but his interpretation does not

seem to be supported by any official DOE interpretation. (Tr. 304:5-19). As with many things involving the

testing process, this exception does not appear to be fully defined or understood.

“made up” because “that would have occurred after my report.” (Tr. 301:4-16). Although the

charges against Sanders were not finalized until January 2013, approximately eight months after

Scott’s report, no effort was made to reinvestigate the issue and determine whether the time had,

in fact, been “made up.”

32. Through the use of additional classroom time after the exam, test preparation time

did not replace instructional time at Windy Hill, (Resp. Exh. 16; Tr. at 420:23-421:16). Although

one witness testified that she had only a half hour or hour each day for math instruction during

the week of the writers’ camp, Ms. Payne, testified that she conducted math instruction and that

she found time to provide the necessary math instruction during the writers’ camp week. (Tr.

528:7-24). Further, after writers’ camp, additional time was provided to make up for math

instructional time missed during writers’ camp. (Tr. 528:25-529:14). Testimony from veteran

educators suggests that elementary school curriculum is a fluid map, and that teachers teach a

mixture of various different subjects each day. No rigid formula is available or expected in the

elementary school education curriculum, and teachers often must mix their educational offerings

during the course of a school day (Tr. 421:17-422:18). While Windy Hill provided only limited

opportunities for math instruction during the days that were scheduled for writers’ camp, teachers

compensated by providing makeup lessons later on. Windy Hill scheduled additional makeup

time for math instruction following the writers’ camp, so that the children would not be denied

their math instruction (Tr. at 188:6-11).

33. Far from condemning the writing camp conducted at Windy Hill Elementary

School, the Duval County School District embraced the very program for which it is now

criticizing Sharon Sanders. Testimony from numerous witnesses supports the conclusion that

district administrators showcase the Windy Hill FCAT test preparation program, asking Windy

Hill educators to teach the very same program to representatives of other schools, (Tr. 423:5-

424:20).

34. The final charge contained in Pet. Ex. 1 is the allegation that Sanders “made

inappropriate comments to staff regarding the investigation of the reported infractions.6”

Investigator Altman sustained allegations regarding Sanders' statements at the faculty meeting

because she concluded that Sanders had intimidated the faculty by: (1) saying that she would

find out who made the anonymous complaint; and (2) stating that she had spoken with the

Superintendent and that she and Ms. Turner were in the clear regarding any allegations of

cheating. (Tr. 577:4-19).7 Altman never followed up to confirm whether the Superintendent

made such statements to Sanders (Tr. 580-581), and Sanders confirmed in her testimony that the

Superintendent had, indeed, made such statements to her. (Tr. 699). A review of the transcript

reveals that Sanders never claimed that she would learn the identity of the complainant, and in

fact stated that she would not learn who made the complaint and didn’t want to know. (Pet. Ex.

11, at p. 3, ll. 14-15.)

35. While there was no reference to religious issues in the charging document, at the

hearing the district asserted that Sanders’ statements were wrongful because they involved 6 References were made at the hearing to various additional claims that were not included in the charging document,

including assertions that Sanders had somehow violated the rights of Exceptional Student Education (ESE) students.

Williams testified that she was concerned with the arrangements for the testing of ESE students, but that she had met

with the ESE coordinator, and since the ESE coordinator thought that the arrangements were appropriate, she agreed

with the plan.(Tr. 93:6-94:8). No evidence was presented regarding any harm to an ESE student, or any violation of

an ESE student’s plan, and the ESE students created no distraction or noise for the other students as a result of their

being tested in the same area. (Tr.529:18-530:12). In addition to the lack of evidence to support such allegation, the

failure to include it in the charging document prevents it from being considered. Jacker v. Sch. Bd., 426 So. 2d

1149, 1151 (Fla. 3rd DCA 1983).

7 At the hearing, Altman conceded that she was asked at her deposition to list all the reasons why she sustained

allegations relating to the faculty meeting, and only sustained one other reason, unrelated to any religious practice,

for which the district chose not to present evidence. (Tr. 617-618). The other reason involved a claim that Sanders

had told employees not to provide truthful information to the investigators, see id., and a review of the transcript

demonstrates that Sanders never made such a statement. (See Pet. Ex. 11).

religious beliefs. No such finding or conclusion based on the religious nature of the statements

was ever sustained by the investigators (Tr. 616:22-619:19), or by the Superintendent or Ms.

Young. (Pet. Ex. 1). Before she made comments regarding her personal faith and paraphrasing

Bible phrases, Sanders prefaced her statement by asking the staff to give her some leeway, and

that she never presumes to tell anyone what to believe. (Tr. 704: 17-25). The evidence presented

at the hearing established that each school board meeting, principal meeting, city council

meeting, graduation, and football meeting starts with some prayer or scripture reading. (Tr.

705:24-706:13).

36. Ms. Sanders’ message was not made to threaten or intimidate. Instead, Sanders

told her staff that they should bring serious issues to either Sanders or Sanders’ supervisor, so

that they could be addressed proactively. (Tr. 707:11-19). She stated specifically: “And so if you

have an issue or concern, you go to the person who’s in charge and you stand up and say, I have

this concern. And we talk about it and we work through it or you say, I need to talk about this,

but I want you to call Dr. Johnson because I want to have somebody from outside the school.”

(Pet. Ex. 11, at 2, ll. 19-25). Sanders believed that if the issue had been raised with herself or

Dr. Johnson, an investigation could have taken place, and the test postponed until it was

resolved, so that there would have been no assertion that the teachers or students had cheated on

the exam. (Tr. 707:22-708:18).

37. Sanders was emotional during the meeting, and expressed concern that she and

her staff and students would have to operate under the cloud of an alleged cheating scandal. (Pet.

Ex. 11). She held the meeting and informed her staff about disciplinary consequences if they

were to discuss the testing issues because Altman instructed her to do so. (Tr. 703:8-22).

Although Altman claimed upon questioning by the district's counsel that she only directed

Sanders to speak with the teachers Altman and Scott had interviewed, Altman admits she made

no such distinction to Sanders, and simply directed Sanders to instruct “her staff.” (Tr. 614:22-

615:23). Altman concedes that she had no way of knowing whether Sanders could have

naturally interpreted the message as pertaining to her entire staff. (Tr. 615:21-616:1). While

Sanders made various comments that the Superintendent would discover who made the

anonymous complaint, she never threatened any repercussions against the complainant, and

rather suggested that the way in which the complaint was made put the school at a disadvantage,

and suggested other more constructive means of reporting concerns. Taken as a whole, Sanders’

comments, other than the ones Altman directed her to make regarding discipline for speaking

about the investigation, were not threatening or intimidating.8

Conclusions of Law

A. Jurisdiction.

38. The Division of Administrative Hearings has jurisdiction over the subject matter

of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2012).

B. Standards

39. A district school board is considered a public employer with respect to all

employees of the school district. § 447.203(2), Fla. Stat. As such, a school board has the right to

8 Discussions of this type are certainly not typical, and the stressful nature of the conference apparently led some in

the audience to remember things that simply were not said. For instance, Ms. Kennell testified at the hearing that

Sanders said “that if any snoops come on campus, you need to shut your mouth and ask for a lawyer, do not talk to

them.” (Tr. 164:22-24). Neither the transcript nor the tape recording reflect any such statement, and it is therefore

puzzling why Investigator Altman failed to review the tape recording to verify the statements when she learned that

a recording was available. (See Tr. 577:23-578:8). Altman’s investigative report contains a number of similarly

outrageous claims which could have been easily disproven had the investigator simply reviewed the recording. (See

Pet. Ex. 2).

direct its employees, take disciplinary action for proper cause, and relieve its employees from

duty because of lack of work or other legitimate reasons. § 447.209, Fla. Stat.

40. Section 1012.22(1), Florida Statutes, provides, in part, that a district school board

shall "[d]esignate positions to be filled, prescribe qualifications for those positions, and provide

for the appointment, compensation, promotion, suspension, and dismissal of employees . . . ,

subject to the requirements of [chapter 1012]."

41. Subsection 1012.33(1)(b), Florida Statutes, provides that a supervisor or school

principal’s contract must contain a provision permitting the school district to dismiss the

principal only for just cause. Due process also requires just cause to demote a principal, even if

the text of the statute does not specifically reference demotion and only requires just cause for

dismissal. Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 530 (7th Cir. Ill.

2000).

42. In this case, the parties have stipulated that the questions to be decided include

whether the facts support the discipline, an issue equivalent to just cause for discipline.

C. The Burden and Standard of Proof.

43. Petitioner seeks to demote Sanders. Petitioner has the burden of proving the

allegations in its Administrative Complaint by a preponderance of the evidence. Cropsey v. Sch.

Bd. of Manatee Cnty ., 19 So. 3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch. Bd. of Dade

Cnty., 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d

476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. Sch. Bd. of Dade Cnty ., 569 So. 2d 883 (Fla. 3d DCA 1990).

44. The preponderance of the evidence standard "is defined as ‘the greater weight of

the evidence,’ Black's Law Dictionary 1201 (7th ed. 1999), or evidence that ‘more likely than

not’ tends to prove a certain proposition.” Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

See also Haines v. Dep't of Child. & Fams., 983 So. 2d 602, 606 (Fla. 5th DCA 2008).

45. The allegations of fact set forth in the charging document are the facts upon which

this proceeding is predicated. Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005). See also Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). In this

case, Petitioner’s Exhibit 1 outlined the allegations and provisions of the statutes, administrative

rules and testing manual that were allegedly violated. Thus, the scope of this proceeding is

properly restricted to those matters as framed by Petitioner. M.H. v. Dep't of Child. & Fam.

Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

46. As described above, the district failed to prove that Sanders was guilty of any of

the charges related to the FCAT administration. The charge notice, Pet. Ex. 1, alleged that

Sanders “failed to report violations that were known to her at the time of the administration of

the test.” The district failed to prove that Sanders knew, or had reason to know, of any of the

testing violations claimed in the notice of discipline, and therefore the charges may not be

upheld. The district presented no proof of any conduct by Sanders which would have violated

any testing standard alleged.

47. As stated above, the alleged violation of section 1088.22(4), Florida Statutes,

cannot be sustained because the statute applies only to school districts and not educators. No

evidence suggests that the Duval County School Board complied with the statute and directed

that its educators refrain from substituting test preparation time for classroom time. Further, the

evidence establishes that the Windy Hill program provided for any missed instructional time to

be reasonably “made up.”

48. As to the claims regarding the faculty meeting, the district failed to specify how

Sanders’ communications amounted to “inappropriate comments” as alleged in Pet. Ex. 1. A

district school board employee against whom a disciplinary proceeding has been initiated must

be given written notice of the specific charges prior to the hearing. Although the notice “need not

be set forth with the technical nicety or formal exactness required of pleadings in court,” it

should “specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the

[school board] alleges has been violated and the conduct which occasioned [said] violation.”

Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983) (Jorgenson, J.,

concurring). Other than a vague reference to her statements being “inappropriate,” the district

never specified the statements it relied upon, or explained why such statements violated some

sort of standard of conduct.

49. Sanders is charged with violating F.A.C. 6A-10.080(2) and (3). F.A.C. 6A-

10.080(2) addresses professional judgment, and F.A.C. 6A-10.080(3) addresses ethics. The

professional judgment subsection, 6A-10.080(2), is limited in that it “clearly [only] relates to the

exercise of judgment in matters affecting the development of students.” Orange County School

Board v. Michele O'Neill, Case No. 05-4551, 2006 Fla. Div. Adm. Hear. LEXIS 260 (June 16,

2006, ALJ Michael Quattlebaum) (interpreting predecessor, 6A-1080(2)). Since no evidence

suggested that Sanders affected student development, no violation has been established to

support subsection (2). See id.

50. As to F.A.C. 6A-10.080(3) the district presented no evidence that Sanders violated

any specific ethical standard through her actions. Additionally, neither the ethics code provision

nor the professional judgment provisions of F.A.C. 6A-10.080, standing alone, can form the basis

for any disciplinary action against an eduator. As was stated in Miami-Dade Cnty. Sch. Bd. v.

Brenes, Case No. 06-1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 n. 12 (Apr. 25, 2007, ALJ

John G. Van Laningham):

Rule [6B-4.009(3)] plainly requires that a violation of both the Ethics Code and

the Principles of Professional Education be shown, not merely a violation of one

or the other. The precepts set forth in the Ethics Code, however, are so general and

so obviously aspirational as to be of little practical use in defining normative

behavior. It is one thing to say, for example, that teachers must "strive for

professional growth." See Fla. Admin. Code R. 6B-1.001(2). It is quite another to

define the behavior which constitutes such striving in a way that puts teachers on

notice concerning what conduct is forbidden. The Principles of Professional

Conduct accomplish the latter goal, enumerating specific "dos" and "don'ts."

Thus, it is concluded that that while any violation of one of the Principles would

also be a violation of the Code of Ethics, the converse is not true. Put another

way, in order to punish a teacher for misconduct in office, it is necessary but not

sufficient that a violation of a broad ideal articulated in the Ethics Code be

proved, whereas it is both necessary and sufficient that a violation of a specific

rule in the Principles of Professional Conduct be proved. It is the necessary and

sufficient condition to which the text refers.

See also Miami-Dade County School Board v. Pusey, Case No. 12-0808TTS, 2012 Fla. Div.

Adm. Hear. LEXIS 820 (December 26, 2012, ALJ Stuart Lerner); Manatee County School

Board v. Withers, Case No. 12-1271TTS, 2012 Fla. Div. Adm. Hear. LEXIS 593 (October 8,

2012, ALJ Linzie F. Bogan). The district failed to charge Sanders with any violation of the

Principles of Professional Conduct, Rule 6B-1.006, F.A.C. in the charging document, Pet. Ex. 1.

The district only charged Sanders with violating the “aspirational” provisions of 6A-10.080(2)

(which replaced 6B-1.001(2)). Its failure to charge Sanders with substantive rule provisions

precludes any disciplinary action under 6A-10.080(2).

51. The evidence produced at the hearing demonstrates that Petitioner did not have

just cause to demote Respondent Sanders.

RECOMMENDATION

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

Petitioner, Duval County School Board, enter a final order:

(a) dismissing the allegations in the notice of demotion, Petitioner’s Exhibit 1, that

Respondent engaged in the misconduct alleged;

(b) reinstating Respondent to a position equivalent to that previously held with the Duval

County School District; and

(c) to the extent Respondent lost wages or benefits, award full back pay and benefits

from the time she was demoted from her position as Principal in January 2013, until the date of

her reinstatement.

Respectfully submitted on this 8th day of July, 2013.

/s/ Tad Delegal T. A. “Tad” Delegal III Fla. Bar No.: 0892701 Attorney for Respondent DELEGAL LAW OFFICES 424 East Monroe Street Jacksonville, FL 32202 Phone: (904) 633-5000 Fax: (904) 358-2850 Email: tad@delegal.net

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. mail to

Katy A. Harris, Esquire, and David D’Agata, Office of General Counsel, 117 West Duval Street,

Jacksonville, FL 32202, and Electronic Mail at mailto:tad@delegal.netKatyh@coj.net and

Dagata@coj.net this 8th day of July, 2013.

/s/ Tad Delegal Tad Delegal

Attorney for Respondent