STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS ) COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03-0554PL

)

DOUGLAS J. SANDERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on June 11, 2003.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Matthew E. Haynes

Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation

of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 8, 2002, Petitioner alleged that Respondent held a Florida Educator's Certificate at all material times. The Administrative Complaint alleges that Respondent violated standardized testing procedures by unlawfully copying and retaining one version of the High School Competency Test and providing the test to his students as a practice test on September 29 and October 2, 2000. The Administrative Complaint alleges that Respondent's students took the High School Competency Test on October 3, 2000, and the version was the same as that which Respondent had provided as a practice test. The Administrative Complaint alleges that the students' scores were invalidated, and they had to retake the test.

At the hearing, Petitioner called nine witnesses and offered into evidence 15 exhibits: Petitioner Exhibits 1-15. Respondent called no witnesses and offered into evidence five exhibits: Respondent Exhibits 4-6 and 14-15. All exhibits were admitted, except only pages 6-9 of Petitioner Exhibit 12 were admitted; the remainder of Petitioner Exhibit 12 was proffered.

Respondent Exhibit 15 was admitted, but not for the truth of the contents.

The court reporter filed the transcript on July 9, 2003.

The parties filed their proposed recommended orders on September 12, 2003.

FINDINGS OF FACT

1. At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education.

2. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics.

3. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students.

4. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on

   a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table.

5. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied.

6. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper.

7. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what

   to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class.

8. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators.

9. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class.

10. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the

    worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation.

11. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet.

12. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of

    Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test.

13. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once.

14. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's

    witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited.

15. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials.

16. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf.

17. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School

    Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

19. Section 1012.795(1) provides in part:

    
    

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) 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); may revoke the educator 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); may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

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

       
       

20. Rule 6B-1.006(5)(a), which is part of the Principles of Professional Conduct for the Education Profession, provides in part:

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

       1. Shall maintain honesty in all professional dealings.

    
    

21. Respondent's acts and omissions in this case are best described as a lack of honesty in professional dealings, rather than gross immorality or moral turpitude. Respondent's wrongdoing was not motivated by self-interest, and he cooperated with the investigation. Exercising the insight and judgment of the education profession and community, the Superintendent and School Board did not terminate Respondent, as would be more likely if he had committed gross immorality or an act of moral turpitude, but suspended him without pay for ten days, which is more consistent with an act of dishonesty.

22. The penalty guidelines set forth in Rule 6B-11.007 do not address the failure to maintain honesty, although the penalty ranges for other offenses are instructive. Aggravating factors in this case is the disadvantage unfairly imposed upon thousands of other students taking the October 2000 HSCT and costs of a second administration of the test at Palm Beach Lakes

    High School. Mitigating factors are Respondent's motivation to serve the interests of the students, rather than his interests; absence of an affirmative cover-up; cooperation with the investigation; endorsement by the principal; the single proved occurrence of the misuse of the HSCT; absence of prior discipline; and the damage that would result from the loss of his job.

23. However, a special aggravating factor is the importance of deterring behavior by teachers that undermines the validity of standardized testing, which has assumed a greater role in education in recent years. Petitioner and school districts have invested large amounts in these tests, as have the students who prepare for them. These considerable investments are undermined by certificated persons who wrongfully obtain advantages for their students on these tests.

24. Respondent relies on Department of Education v.

Camille, 2002 Fla. Div. Adm. Hear. Lexis 1362 (Fla. Div. Admin. Hear. 2002) as support for the dismissal of the charges in this case. However, Respondent's argument that Ms. Camille's behavior was arguably more egregious than his behavior overlooks the fact that Ms. Camille did not disseminate the information that she obtained improperly from the HSCT.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule

6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years.

DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 19th day of September, 2003.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education

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

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

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

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

Charles T. Whitelock Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Matthew E. Haynes

Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place

West Palm Beach, Florida 33401

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000554PL

Orders for Case No: 03-000554PL