STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. )

)

HELEN HOSS, )

)

Respondent. )

Case No. 02-1362PL

)

RECOMMENDED ORDER

On June 12, 2002, a formal administrative hearing in this case was conducted in St. Petersburg, Florida, before William F. Quattlebaum, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605 STATEMENT OF THE ISSUE

The issue in the case is whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 13, 2002, the Department of Education (Petitioner) filed an Administrative Complaint against Helen Hoss (Respondent) alleging that the Respondent provided improper assistance to students taking a standardized test and then attempted to conceal the inappropriate assistance.

Specifically, the Petitioner asserts that the Respondent supplemented or wrote test answers for students, and improperly altered the test grading sheets. The Respondent filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled the hearing.

During the proceeding, the Petitioner presented the testimony of four witnesses, and had Exhibits numbered 1 (parts A-F), 2 through 4, and 5 (parts A and B) admitted into evidence. The Respondent testified on her own behalf. A stipulation adopted by the parties was admitted as ALJ Exhibit 1.

A Transcript of the hearing was filed on July 10, 2002.

Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a Florida teacher, holding Florida Educator's Certificate 573730 (covering the areas of elementary education and administration/supervision) which is valid through June 30, 2006.

2. At all times material to this case, the Respondent was employed as a teacher at Clearview Elementary School in the Pinellas County School District.

3. In January of 2000, a test known as the Parallel Reading Florida Comprehensive Assessment Test (PR-FCAT) was administered to Pinellas County elementary school students in the third, fourth, and fifth grades.

4. The PR-FCAT is a "practice" examination, but is used by teachers to assess the reading and writing ability of students. School officials also use the test as a predictive tool in identifying students who may be eligible for summer school programs. The test is administered three times a year.

5. Other than encouraging students to complete the test, teachers are directed to refrain from assisting students taking the PR-FCAT. Teachers are not allowed to read questions to students or to record answers. Teachers are not to provide any direction related to the content of student's answers to questions on the test.

6. After the test is administered, the teacher grades the student responses and then returns the materials to the "test coordinator" for the school. The test coordinator for Clearview Elementary in January of 2000 was Joyce Beattie.

7. A "dual scoring" system is used to grade the exam. The test coordinator cuts the score sheets to remove the grades

   marked by the class teacher, and distributes the score sheets to a second teacher for grading. When the second teacher completes grading the student responses, the score sheets are returned to the test coordinator who consolidates the grades.

8. After administration of the PR-FCAT at issue in this case, Ms. Beattie did not immediately receive the Respondent's test booklets. Eventually, Ms. Beattie asked the Respondent for the materials and received them from her.

9. Contrary to the established procedure, the score sheets returned to Ms. Beattie had been cut and taped back together prior to Ms. Beattie's receipt of the materials.

10. The Respondent asserts that she did not cut the score sheets prior to returning them to Ms. Beattie. Ms. Beattie is certain that when she received the sheets, they were already cut and taped. Ms. Beattie believes that the Respondent directly handed the score sheets to her, but does not recall commenting to the Respondent on the unusual cutting and taping of the score sheets.

11. After administration of the tests and before they were returned to Ms. Beattie, other school employees had access to test materials. When the Respondent initially attempted to turn in the test materials to Ms. Beattie, the Respondent could not locate Ms. Beattie and left them in a mailroom accessible to other employees. Several days later, the test booklets were

    back in the Respondent's mailbox, apparently having been returned to her. Thereafter, the tests were returned to

    Ms. Beattie. The evidence is insufficient to establish how, and by whom, the score sheets were cut and taped.

12. In any event, because the score sheets had been altered improperly, Ms. Beattie discussed the issue with an assistant principal, and they decided to replace the cut score sheets and forward the tests to a second teacher for grading.

13. Although Ms. Beattie originally planned to use two teachers identified as "Painter" and "Carlton" to grade the tests taken by the Respondent's class, time for completing the grading process was short, and so she gave the tests to Amy Van Wormer.

14. Ms. Van Wormer is a teacher who was familiar with some of the students in the Respondent's class. As she graded the tests, she noticed that in some answers, the handwriting was inconsistent and appeared to be that of more than one person. She completed her scoring and reported her concern to

    Ms. Beattie.

    
    

15. The school principal and, subsequently, the school district's Professional Standards Office were informed of the situation.

16. Michael Bessette, an administrator from the district's Professional Standards Office, investigated the situation. He met several times with the Respondent.

17. At the first meeting between the Respondent and Mr. Bessette, the Respondent denied having provided any

    assistance to students in her class during the testing process.

    
    

18. A second meeting between the Respondent and

    
    

    Mr. Bessette occurred after the students had been interviewed and a handwriting analysis had been performed. Based on the student interviews and the handwriting analysis, Mr. Bessette had concluded that the Respondent had written one of the student's answers and believed she had written in others.

19. At the second meeting, after confronting the Respondent with the information, the Respondent acknowledged having written one answer in a student's test book, and asserted she had forgotten offering the assistance and therefore had denied providing assistance in the prior meeting.

20. At hearing, the Respondent testified that she observed a student crying with her head down on her desk, that the Respondent inquired as to the problem, and that the student said she was sick and could not write. The Respondent testified that she wrote down an answer dictated by the child.

21. Based on the stipulation between the parties and admitted into evidence, the child was ill and wanted to go home,

    the child asked the Respondent for help, and the Respondent wrote the answer after the child said what she would have written.

22. At the hearing, the Petitioner presented the deposition testimony of Thomas W. Vastrick, a certified forensic document examiner, who reviewed writing samples and some of the test books at issue in this case.

23. Mr. Vastrick's testimony concurs with the evidence clearly establishing that the Respondent wrote an answer in one student's test book.

24. The Petitioner also alleges that the Respondent supplemented the answers in other students' test books. The evidence fails to support the allegation.

25. Based on the testimony of Mr. Vastrick, the evidence establishes that in answers written by some students were supplemented with additional information, but is insufficient to establish that the Respondent is the person who wrote the additional information.

26. Mr. Vastrick testified that although there were "indications" that the Respondent wrote the additional information, he could not make such a determination "with a degree of certainty."

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

28. Count One of the Administrative Complaint alleged that the Respondent's conduct is a violation of Section 231.2615(1)(i), Florida Statutes, which in relevant part provides as follows:

    1. The Education Practices Commission may suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that the person:

       
       

       * * *

       
       

       1. Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

          
          

29. Count Two of the Administrative Complaint alleged that the Respondent's conduct is a violation of Rule 6B-1.006(5)(a),

    Florida Administrative Code, (the Principles of Professional Conduct for the Education Profession) which provides in relevant part as follows:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

       * * *

       
       

       1. Obligation to the profession of education requires that the individual:

          1. Shall maintain honesty in all professional dealings. (emphasis supplied)

       
       

30. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met as to the Respondent's lack of candor in failing to admit her actions during the first meeting with

    Mr. Bessette.

    
    

31. The evidence establishes that the Respondent assisted a student during an examination and then, when questioned about the situation, denied having done so.

32. The Respondent testified that she was nervous at the time of the first meeting and asserted that she forgot she had

    written the child's answer. The assertion lacks credibility. The Respondent testified about the specific child involved and the attempts she had made, working with the child's mother, to assist the child in succeeding at school. Given the specific attention directed towards the child, it is unlikely that the Respondent would have forgotten the act of writing the child's answer in the test booklet, especially given the specific directions to the contrary set forth in the directions for test administration. The directions provide that a child who finds a task to be "too difficult" may be asked "if he would like to stop working."

33. As to the allegations that the Respondent supplemented other students' answers, the evidence fails to establish, clearly and convincingly, that she did so. The Respondent denied the allegations. The Respondent had nothing to gain, personally or professionally, by supplementing the answers. The expert in forensic handwriting who testified by deposition was unable to attribute the writing to the Respondent sufficiently to meet the burden of proof applicable in this case.

RECOMMENDATION

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

RECOMMENDED that the Department of Education enter a Final Order reprimanding the Respondent for violating the Principles of

Professional Conduct, and placing her on probation for a period of one year.

DONE AND ENTERED this 23rd day of August, 2002, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2002.

COPIES FURNISHED:

Pamela Cooper, Esquire

118 North Monroe Street Tallahassee, Florida 32399

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

Robert F. McKee, Esquire Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Honorable Charlie Crist, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-001362PL

Orders for Case No: 02-001362PL