STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, as Commissioner ) Of Education, )

)

Petitioner, )

)

vs. ) Case No. 03-1601PL

)

LAURA J. HAMMERSLEY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 31, 2003, in Tavares, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert E. Sickles, Esquire

Aaron W. Proulx, Esquire Broad and Cassel

100 North Tampa Street, Suite 3500 Tampa, Florida 33602-5842

For Respondent: Joan Stewart, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32301-1531

STATEMENT OF THE ISSUE

The issue is whether Respondent's teaching certificate should be disciplined for the reasons cited in the Amended Administrative Complaint dated June 25, 2003.

PRELIMINARY STATEMENT

This matter began on February 13, 2002, when Petitioner, Charlie Crist, as Commissioner of Education (later succeeded in January 2003 by Jim Horne, as Commissioner of Education), issued an Administrative Complaint alleging that Respondent, Laura J. Hammersley, had violated Section 231.2615(1)(c), (f), and (i), Florida Statutes (now codified as Section 1012.795(1)(c),(f), and (i), Florida Statutes), and Rule 6B- 1.006(3)(a),(d), (4)(b), and (5)(a) and (h), Florida Administrative Code, by falsifying a test score for an exceptional student education (ESE) student which would have resulted in the student's dismissal from the ESE program. All citations are to Florida Statutes (2002) unless otherwise indicated. On July 9, 2003, Petitioner was authorized to file an amended administrative complaint to reflect the correct statute numbers which form the basis for the charges.

On March 15, 2002, Respondent filed her Election of

Rights requesting a formal hearing to contest these charges. On May 1, 2003, or more than a year later, the matter was referred by Petitioner to the Division of Administrative Hearings with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated May 13, 2003, a final hearing was scheduled on July 1 and 2, 2003,

in Tavares, Florida. At Petitioner's request, the matter was rescheduled to July 31, 2003, at the same location. On July 28, 2003, the case was

transferred from Administrative Law Judge Charles C. Adams to the undersigned.

At the final hearing, Petitioner presented the testimony of M.T.S., the mother of the student; T.S. (the student), James R. Polk, Jr., former principal of Umatilla Middle School (UMS); Connie Gibson, a guidance counselor at UMS; and Charlene Campbell, a program specialist in the ESE program.

Also, it offered Petitioner's Exhibits 1-3, 5, 6, 10, 13, 19, 21, 23A and B, and 24, which were received in evidence.

Respondent testified on her own behalf and offered Respondent's Exhibits 1, 7, 8, 10, 11, 13, and 16-18. All

were received except Exhibits 7, 8, 10, and a part of 18. The Transcript of the hearing was filed on August 27,

2003. Proposed Findings of Fact and Conclusions of Law were filed by the parties on September 16, 2003, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Respondent began employment as a teacher with the Lake County School District in school year 1983-1984 and was continuously employed by the District until she voluntarily resigned her position in May 2000. She holds Florida

   Educator's Certificate No. 541066, covering the area of speech correction. Her Certificate expires on June 30, 2004.

2. Beginning in school year 1983-1984 and continuing until her resignation, Respondent provided ESE speech pathology and testing/evaluation for various schools in the Lake County school system. During school year 1999-2000, Respondent was employed as a speech and language pathologist at UMS. She also provided the same services (when needed) at Umatilla High School and Lake Tech High School (Lake Tech) in Eustis, Florida. Part of her responsibilities included administering tests to ESE students which aid in determining whether such students should continue in the ESE program. Two of those tests are the Adolescent Test of Problem Solving (TOPS) and the Adolescent Word Test (Word Test), both of which are given to students with a language impairment. Such tests were normally administered during a student's elective period, such as homeroom or band.

3. In school years 1997-1998 and 1998-1999, when she was

   
   

   in the sixth and seventh grades at U.M.S., T.S. received speech services from Respondent in the ESE program for an expressive receptive language delay condition, which created a language processing deficiency. At T.S.'s seventh grade Individual Education Plan (IEP) meeting, however, it was determined that she would be mainstreamed into regular classes

   for the eighth grade, which meant that she would no longer receive direct services from Respondent, but rather Respondent would only "check on her grades" to see how the student was "performing in the mainstream."

4. When a student in the ESE program is due for testing or assessment, a clerk in the UMS guidance office normally sends a notice and any other pertinent forms to the student's parents and the ESE teacher several weeks before the meeting. Besides the annual IEP, every three years a re-evaluation is done to determine whether the student should be retained in the ESE program.

5. On April 21, 2000, a Lake County Schools Exceptional Student Notification of Educational Staffing (Notice) was sent to T.S.'s parents and Respondent scheduling a meeting at 11:00 a.m., Monday, May 8, 2000. A Notice and Consent for Re- Evaluation was also sent to the parents for their signature, which would serve as authorization for the school to give T.S. another "language screening/evaluation," that is, authorization to administer the TOPS test and Word Test. Although the Notice was not wholly clear in identifying the purpose of the meeting, and cited a "review of your child's IEP/EP program(s) Speech/Language Impaired" and a discussion of the "re-evaluation assessment [of T.S.] and possible continued eligibility [in the ESE program]" as its purposes,

   in plainer terms its purpose was simply to obtain permission from the parents to administer a re-evaluation examination and to explain to the parents the testing procedure. Respondent acknowledges receiving both documents. Attendees were to include the parents, Respondent, and Connie Gibson, a guidance counselor at UMS.

6. During school year 1999-2000, Respondent normally provided ESE services at Lake Tech (in Eustis) on Monday mornings until around 11:00 a.m. Because she mistakenly believed the meeting was to be held on Tuesday, May 9, 2000 (rather than May 8), Respondent signed out for Lake Tech on the morning of May 8. She also indicated on the sign-out sheet that after leaving Lake Tech, she would stop by Eustis Heights Elementary School (Eustis Heights) for a few minutes to speak with its principal. When she arrived at Eustis Heights around 11:00 a.m., Respondent received a message reminding her that a meeting was being held at UMS.

7. In the meantime, T.S.'s parents and Connie Gibson arrived for the meeting at 11:00 a.m. Ms. Gibson was under the mistaken impression that the purpose of the meeting was to have Respondent go over the re-evaluation testing that Ms. Gibson thought Respondent had already administered to T.S. When Respondent arrived at the meeting, Ms. Gibson asked her if she had the test results for T.S. Respondent replied that

   the testing was in her room (which was no more than a minute or two away) and that she needed to retrieve the tests.

   Although the tests could have been retrieved in less than five minutes, Respondent exited the room and returned around fifteen or so minutes later. This amount of time has been accepted as being the most accurate, even though the length of Respondent's absence

   is in dispute, with estimates ranging from as few as four or five minutes to as long as twenty-five minutes.

8. Respondent returned with both the TOPS test and Word Test allegedly taken by T.S. Respondent had handwritten on the tests that they had been administered on Monday, May 1, 2000, or one week earlier. Respondent then proceeded to review the results of the tests with the parents. Based upon the test scores (which were a little above average) and T.S.'s grades in the mainstream middle school, Respondent recommended that T.S. be dismissed from the ESE program. Indeed, under the testing results, T.S. met dismissal criteria, that is, she had made enough progress in the program that she could be dismissed. As it turned out, this decision was satisfactory with the parents since they did not like Respondent and did not believe that their daughter was receiving good services from her.

9. While the meeting was progressing, Ms. Gibson realized that the purpose of the meeting was to get permission for the testing of T.S., not to discuss test results. This realization was reinforced by the fact that the written parental consent is required by federal law to test a student's qualifications for a special education program, and the re-evaluation form had not been signed. Believing that the tests had been administered without parental permission,

   Ms. Gibson asked the parents to sign the form that day, but to backdate the document to May 1, when

   the tests were allegedly administered. The parents agreed to do so and signed the form.

10. After the meeting was concluded, Ms. Gibson felt uncomfortable about what had transpired, including the backdating of the document. Accordingly, she reported this to James R. Polk, Jr., then the principal at UMS. At that time, she also reported that she suspected that Respondent had not actually administered the tests or that Respondent had done so improperly. This suspicion was based in part on the fact that the tests did not have any "anecdotal notes" written on them.

11. According to the TOPS test manual, the tester should write down any response that does not closely match one of the responses that was already printed on the test protocol. This means that not only should all incorrect answers be recorded, but also any responses that do not closely match the suggested response in the test manual. The purpose of this requirement is to enable another person to verify that the scores given by the original tester are correct. It also enables the tester to later compare a student's questionable response with the test manual, and to then score it correct or incorrect. The Word Test manual further provides that "questionable or alternative responses" should be recorded. In this case, Respondent recorded nothing on the tests except whether the answers given were right or wrong. Respondent contended,

    however, that her practice had always been to record only those responses that were "very strange or off the wall that really didn't pertain to [the] question." Even assuming that this practice was acceptable, it is highly unusual that out of

    110 questions supposedly answered by T.S., none fell within this category.

12. A short time after meeting with Ms. Gibson, Mr. Polk summoned T.S. (who had not attended the meeting) to his office and was told by the student that she had never been tested by Respondent, nor had she been seen by Respondent for a long period of time. A telephone call the same day by Mr. Polk with T.S.'s mother corroborated this fact.

13. On the following day, May 9, 2000, Mr. Polk met with Respondent to discuss Ms. Gibson's concerns. At that meeting, Respondent stated that she had administered the tests during homeroom period on May 1, 2000. However, homeroom period was only 22 minutes long and it would be impossible to take the student out of class, walk to the testing location, and administer two tests in less than twenty-two minutes. This is because the TOPS test contains fifty questions and takes approximately forty minutes to administer, while the Word Test contains sixty questions and takes approximately twenty to thirty minutes to complete, or a total time of at least one hour. At hearing, Respondent conceded that "[p]robably . . .

    it [the testing on May 1] didn't happen that way."

    
    

14. Mr. Polk later confronted Respondent about these facts which made her claims impossible, and Respondent then indicated that she had given the wrong date, and that she had given the test during homeroom on Tuesday, May 2, 2000. Mr. Polk checked T.S.'s schedule on May 2 and learned that T.S. was in an intramural program the entire day. When presented with this information, Respondent then gave a third date - Thursday, May 4, 2000. This date was purportedly taken by Respondent from the calendar on the wall in her office. However, the sign-in sheet Respondent kept for her classroom failed to show that T.S. had signed in on that date for testing. Respondent later contended, however, that mainstream students (such as T.S.) did not have to sign in for testing.

15. Even so, based on these circumstances, Mr. Polk concluded that the tests were never administered and thus he recommended to the Superintendent that Respondent be dismissed. This was formalized in an Appraisal II evaluation (which is used to designate areas of deficiencies) prepared by Mr. Polk on May 18, 2000, and signed by Respondent on May 22, 2000. For at least the preceding six years, Respondent had always received outstanding appraisals by her supervisors. After receiving the Appraisal II, Respondent submitted her resignation.

16. During Respondent's deposition taken on June 24, 2003, or five weeks before the final hearing, she stated for the first time that the tests were actually administered over a two-day period, with one being given on Thursday, May 4, and the second being given on May 9, 2000 (or the day after the May 8 meeting when the test results were reviewed). At the urging of her counsel, however, she then changed these dates to May 4 and 5.

17. In answers to interrogatories submitted by Respondent on July 7, 2003, she responded that it took only 25 to 30 minutes for T.S. to complete both tests. A letter of mitigation sent by Respondent's counsel to Petitioner on May 15, 2001, also took the same position. However, these two documents are at variance with Respondent's testimony at final hearing.

18. At final hearing, or more than three years after the events here occurred, Respondent stated that the correct dates were sometime between April 21 (when she received the Notice) and May 8, 2000, and that the tests were administered during one of T.S.'s homeroom or elective periods. She further recollects that she pulled T.S. from her first period in homeroom (which is a 22-minute class) and administered the longer TOPS test at that time. However, because the test ran over, Respondent says the testing consumed some ten to fifteen

    minutes of the next period, but she had the leeway to do so since the next period was an elective class (band). She further claims that the Word Test was also begun during the band class and was eventually completed on another undisclosed date. In light of the numerous conflicting versions of events given by Respondent, and especially the multiple testing dates suggested by Respondent no more than a week after the tests were supposedly administered and when her

    recollection should have been the clearest, this testimony is not accepted as being credible.

19. The more credible evidence supports a finding that Respondent either filled out the test scores during the time when she left the meeting on May 8 ostensibly for the purpose of retrieving the tests, or she filled out the test scores in whole or in part after receiving the Notice on April 21 but prior to May 8. No matter which scenario is correct, or what her motivation might have been, the fact remains that the tests were never administered to the student. Indeed, at hearing T.S. confirmed that she was certain that the tests had never been administered. Respondent's contention that T.S. and her mother fabricated their stories because of personal bias against her has been rejected.

20. By falsifying the test scores, Respondent's effectiveness as a teacher was seriously impaired.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569.

22. As the party seeking to discipline Respondent's teaching certificate, Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292

    (Fla. 1987).

    
    

23. The Amended Administrative Complaint alleges that Respondent has violated Section 1012.795(1)(c),(f), and (i), which authorizes the Education Practices Commission to discipline a teaching certificate if the holder of the certificate:

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

    
    

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

    
    

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

    
    

    The Amended Administrative Complaint goes on to charge that Respondent has violated five Principles of Professional Conduct found in Rule 6B-1.006, Florida Administrative Code. Those Principles require that a teacher:

    (3)(a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

    
    

    (3)(d) Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

    
    

    (4)(b) Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

    
    

    (5)(a) Shall maintain honesty in all

    professional dealings.

    
    

    (5)(h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

24. Rule 6B-4.009(2) and (6), Florida Administrative Code, defines "immorality" and "moral turpitude" as follows:

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

25. Finally, in Education Practices Commission v. Knox, DOAH Case No. 81-0056 (EPC June 29, 1981), the term "gross" in conjunction with "immorality" has been found to mean immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard for proper moral standards. See also State ex rel. Tulledge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933), where the Court defined moral turpitude as "anything done contrary to justice, honesty, principle, or good morals."

26. By clear and convincing evidence, Petitioner has

    established that Respondent "falsified test scores for an exceptional student education . . . student in that she manufactured scores for two tests which the student had not taken," as alleged in the Amended Administrative Complaint.

    By doing so, Respondent is guilty of gross immorality, that is, she has committed acts that are serious, rather than minor in nature, and which constitute a flagrant disregard for proper moral standards. Knox, supra. Because the misconduct is also contrary to "honesty, principle, or good morals," she is also guilty of committing an act involving moral turpitude. Count I is accordingly sustained.

27. The established misconduct further constitutes a violation of Section 1025.795(1)(f), in that Respondent's personal conduct seriously reduces her effectiveness as a teacher. Therefore, the charge in Count II has been established.

28. Finally, Respondent's conduct constitutes a violation of Section 1012.795(1)(i), which makes it unlawful to violate the Principles of Professional Conduct for the Education Profession, which are codified in Rule 6B-1.006, Florida Administrative Code (Count III). More specifically, Respondent did not make a reasonable effort to protect T.S. from conditions harmful to learning and to her mental health (Rule 6B-1.006(3)(a)); she intentionally distorted subject

    matter relevant to T.S.'s academic program (6B-1.006(3)(b)); she intentionally misrepresented facts concerning an educational matter (6B-1.006(4)(b)); she failed to maintain honesty in all of her professional dealings (Rule 6B- 1.006(5)(a)); and she submitted fraudulent information in connection with her professional

    dealings (Rule 6B-1.006(5)(h)). Therefore, Counts IV through VIII have been sustained.

29. In its Proposed Recommended Order, Petitioner recommends that Respondent be given a letter of reprimand, that her teaching certificate be suspended for two years, and that if she thereafter returns to teaching, that she be placed on probation for a period of three years. Finally, Petitioner recommends that prior to returning to a position of employment that requires the use of a teaching certificate, that Respondent be required to obtain a grade of "C" or better in a college level educational ethics course. The same penalty was approved in a similar case, Castor v. Spruell, DOAH Case No. 93-6936 (Education Practices Commission December 21, 1995), and is found to be reasonable here.

RECOMMENDATION

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

RECOMMENDED that the Commissioner of Education enter a final order finding that Respondent is guilty of the charges specified in the Amended Administrative Complaint and that the penalty described in paragraph 29 be imposed.

DONE AND RECOMMENDED this 1st day of October, 2003, in Tallahassee, Leon County, Florida.

S

___________________________________ DONALD R. ALEXANDER

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 1st day of October, 2003.

COPIES FURNISHED:

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

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

Kathleen M. Richards, Executive Director Education Practices Commission

Florida Education Center

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

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Robert F. Sickles, Esquire Broad and Cassel

100 North Tampa Street, Suite 3500 Tampa, Florida 33602-5842

Joan Stewart, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32399-1700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will enter a final order in this case.

Docket for Case No: 03-001601PL

Orders for Case No: 03-001601PL