STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On January 14, 2010, a duly-noticed hearing was held by video teleconference with sites in Tallahassee and Jacksonville, Florida, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: David Hertz, Esquire

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Donald Pinaud, Esquire Kattman & Pinaud, P.A. 4069 Atlantic Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida

Administrative Code Rule 6B-1.006, as alleged in the Administrative Complaint and if so, what penalties should be imposed?

PRELIMINARY STATEMENT

On March 30, 2009, Petitioner, Dr. Eric J. Smith, as Commissioner of Education, filed an Administrative Complaint against Respondent, Robert L. Forbis, alleging violations of Section 1012.795, Florida Statutes (2008), and Florida Administrative Code Rule 6B-1.006. On May 5, 2009, Respondent filed an Election of Rights Form requesting a hearing pursuant to Section 120.57(1), Florida Statutes. On August 04, 2009, the matter was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

On August 19, 2009, the case was noticed for a hearing to be conducted October 21 through October 23, 2009, in Jacksonville, Florida. On September 15, 2009, Petitioner filed an Agreed upon Motion to Continue Formal Hearing, and the hearing was ultimately rescheduled for January 14 and 15, 2010.

The hearing was held on January 14, 2010. The parties submitted a Prehearing Statement including stipulated facts that have been incorporated into the Findings of Fact below. At hearing, Petitioner presented the testimony of E.W., N.K., L.S., S.C., S.D., K.N.,1/ Donald F. Nelson, Victoria Ash, John Williams and Leroy Starling. Petitioner’s Exhibits 1-15 and 17-20 are

admitted into evidence.2/ Respondent testified on his own behalf, but presented no exhibits.

A Transcript of the proceedings was filed on February 1, 2010. At their request, the parties were afforded 20 days to file their post-hearing submissions. Both parties timely submitted Proposed Recommended Orders that have been carefully considered in the preparation of this Recommended Order. All references to Florida Statutes are to the 2008 codification unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the field of mathematics, and has been issued Florida Educator’s Certificate No. 130749. This certificate is valid through June 30, 2011.

2. At all times pertinent hereto, Respondent was employed by the Duval County School Board as a sixth-grade mathematics teacher at Twin Lakes Academy Middle School in the Duval County School District.

3. Respondent has been a teacher for over 40 years and has taught mathematics at Twin Lakes Academy Middle School for six years.

4. On March 7, 2008, Respondent signed an “FCAT Administration and Security Agreement.”

5. By signing the security agreement, Respondent acknowledged that he had read the 2008 FCAT SSS Reading, Mathematics, and Science Test Administration Manual, and that he would administer the FCAT exam in accordance to procedures stipulated in the manual. Page 30 of the manual stated in bold print that Respondent “may not . . . discuss test items or answers with students, even after all test materials have been returned.”

6. By signing the FCAT Administration and Security Agreement, Respondent promised to avoid the following prohibited activities:

   1. Reading the passages, test items, or performance tasks;

      
      

   2. Revealing the passages, test items, or performance tasks;

      
      

   3. Copying the passages, test items, or performance tasks;

      
      

   4. Explaining or reading test items, or passages for students;

      
      

   5. Changing or otherwise interfering with students responses to test items;

      
      

   6. Causing achievement of schools to be inaccurately measured or reported;

      
      

   7. Copying or reading student responses.

      
      

7. By signing the security agreement, Respondent agreed to abide by Florida Administrative Code Rule 6A-10.042, and Section 1008.24, Florida Statutes, and acknowledged in part:

   The security of all test materials must be maintained before, during and after the test administration...

   
   

   * * *

   
   

   I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported.

   
   

8. In March 2008, after signing the security agreement, Respondent administered the FCAT to his sixth-grade mathematics class.

9. The day after administering the FCAT, Respondent asked the students in each of his five classes to write down questions they could remember from the FCAT. The testimony varied as to whether the requested information was limited to questions they did not understand, a single question, or simply questions and answers. However, it is clear that the requested information stemmed from the FCAT administration the previous day.

   Respondent collected the students’ written responses immediately after, with the intention of reviewing the students’ responses at a later date. There is no competent, persuasive evidence that Respondent intended to share the questions with anyone.

10. After collecting the students’ written responses, Respondent placed them in a folder and then placed the folder in his personal briefcase to be taken home and locked in his private safe.

11. Shortly thereafter, the school principal, Mr. Donald Nelson, received an email from a parent who is also a teacher at Twin Lakes Elementary School, stating that a security violation may have occurred with respect to the FCAT.

12. Mr. Nelson immediately called Professional Practices and questioned the Respondent about the incident. In addition, he retrieved the folder with the students’ questions from Respondent.

13. An investigation was conducted by Mr. Leroy Starling, an investigator for the Duval County School District, Mr. Nelson, and Mr. John Williams, the Director of Professional Standards for the school district. Randomly selected students were questioned individually, and students’ written responses as well as two letters written by the Respondent to Mr. Nelson were reviewed.

14. As a result of the investigation, on April 4, 2008, Respondent was issued a letter of reprimand and suspended for ten days without pay.

15. Respondent continued to teach his sixth-grade mathematic class during the ten days that he was suspended, despite the fact that he was not being paid to do so.

16. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for the Florida Department of Education, testified that the FCAT is used as part of the accountability system for the state. The results from the FCAT results are used to determine if schools

    have made an adequate yearly progress, to assign school grades and to measure each student’s level of achievement.

17. Ms. Ash further testified that due to the three-year process in developing test questions, selected questions are frequently re-used on the FCAT. As a result, pursuant to the FCAT security agreement, teachers are warned not to “check through books and return them to students after they have been collected or discuss test items or answers with students even after all test materials have been returned and testing has been completed because some items may be used on future tests.”

18. There is no evidence presented that student achievement was inaccurately reported or misrepresented as a result of this incident. There is also no evidence that any of the questions on the FCAT were discarded or that any test scores were invalidated as a result of the incident.

19. Respondent has received consistent excellent teaching reviews and has never been reprimanded before this incident.

20. There is no evidence that Respondent acted inappropriately in any manner during the actual administration of the FCAT.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2009).

22. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to suspend Respondent’s teaching certificate for one year, followed by a one-year term of probation. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. As stated by the Florida Supreme Court:

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).

    
    

24. Subsection 1012.795(1)(j), Florida Statutes, authorizes the Education Practices Commission to suspend, revoke, or otherwise penalize a teaching certificate, provided it can be shown that the holder of the certificate:

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

    
    

25. Florida Administrative Code Rule 6B-1.006 states in pertinent part:

    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.

       
       

    3. Obligation to the student requires that the individual:

    
    

    (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.

    
    

    * * *

    
    

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

       
       

       1. Shall maintain honesty in all professional dealings.

          
          

26. The Administrative Complaint alleges that the Respondent’s conduct violated Subsection 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006, because he violated the provisions of Section 1008.24(1), Florida Statutes, and Florida Administrative Code Rule 6A-10.042(1). The factual allegations in the Administrative Complaint include the following:

    1. In or around March 2008, the Respondent administered the Florida Comprehensive Assessment Test (FCAT) to his class. In preparation for the test, the Respondent signed a “FCAT Administration and Security Agreement,” under which he agreed:

       
       

       1. To abide by Rule 6A-10.042, F.A.C and Section 1008.24, F.S.

       2. To avoid the following examples of prohibited activities:

          
          

          1. Reading the passages, test items, or performance tasks;

             
             

          2. Revealing the passages, test items, or performance tasks;

             
             

          3. Copying the passages, test items, or performance tasks;

             
             

          4. Explaining or reading test items, or passages for students;

             
             

          5. Changing or otherwise interfering with students responses to test items;

             
             

          6. Causing achievement of schools to be inaccurately measured or reported;

             
             

          7. Copying or reading student responses.

             
             

       3. Further, the Agreement indicated that “The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY administration, initial or make-up, materials must be returned immediately to the school coordinator and placed in a locked storage...”

          
          

       4. Under the Agreement, the Respondent specifically agreed, “I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported.”

          
          

    2. In or around March 2008, after administering the FCAT, the Respondent gave his students an assignment, asking them to write down questions they could remember from the FCAT. The Respondent collected the questions written down by the students. The Respondent intended to use these questions to help students prepare for the FCAT the following year.

27. The Administrative Complaint further alleges that Respondent violated Section 1008.24(1)(b), Florida Statutes, in that he "knowingly and willfully violated test security rules adopted by the State Board of Education"; and "copied, reproduced or used in any manner inconsistent with the security rules all or any portion of any secure test booklet." It also alleges that he violated Rule 6A-10.042(1) in that he "failed to maintain/administer tests in a manner to preserve test integrity"; and "revealed, copied, or otherwise reproduced tests or individual test questions."

28. Subsection 1008.24(1), Florida Statutes, provides in pertinent part:

    (1) It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to

    s. 1008.22, or with respect to any such test, knowingly or willfully to:

    
    

    * * *

    
    

    1. Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet;

    
    

    * * *

    
    

    (f) Fail to follow test administration directions specified in the test administration manuals. . . .

29. Florida Administrative Code Rule 6A-10.042(1) provides in relevant part:

    (1) Tests implemented in accordance with the requirements of Sections 1004.93, 1008.22, 1008.29, 1008.30, 1012.55, and 1012.56, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.

    
    

    * * *

    
    

    (b) Tests or individual test questions shall not be revealed, copied or otherwise reproduced by persons who are involved in the administration, proctoring or scoring of any test.

    
    

    * * *

    
    

    (f) Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees’ achievement.

    
    

30. Disciplinary statutes are penal statutes that must be strictly construed, with any ambiguity interpreted in favor of the licensee. Elmariah v. Department of Professional Regulation,

    574 So. 2d 164 (Fla. 1st DCA 1990). "In particular, agencies are not permitted to extend the requirements of such statutes by construction. This restriction on agency discretion is necessary to ensure that those whose conduct is regulated by such statutes have fair notice of what conduct is proscribed." Beckett v. Department of Financial Services, 982 So. 2d 94, 100 (Fla. 1st DCA 2008)(citations omitted).

31. In order for Respondent to be disciplined in this case, it must be determined whether Respondent's asking the students to write down FCAT questions after the administration of the test was complete constitutes a violation of Section 1008.24, as alleged in the Administrative Complaint. If such a violation is found, then it must be determined whether this alleged violation of Section 1008.24 also violates the specific statutory and rule provisions alleged in the Administrative Complaint that authorize disciplinary action.

32. At the crux of the first inquiry is the determination of whether Respondent's conduct constituted copying or reproducing the test questions from the FCAT. Chapter 1008 does not define “copy” or “reproduce.” Absent a statutory definition, it is appropriate to resort to the dictionary in order to interpret these terms in a manner consistent with its plain and ordinary meaning. Bolanos v. Workforce Alliance, 23 So. 3d 171,

    173 (Fla. 1st DCA 2009); Morris v. C.A. Meyer Paving & Constr., 516 So. 2d 302, 304 (Fla. 1st DCA 1987).

33. The noun "copy" is defined as "1) an imitation, transcript, or reproduction of an original work (as a letter, a painting, a table, or a dress); 2) one of a series of especially mechanical reproductions of an original impression; also: an individual example of such a reproduction; 3) archaic: something to be imitated: MODEL; 4a) matter to be set especially for printing b: something considered printable or newsworthy. . .

    5) DUPLICATE 1a <a copy of a computer file><a copy of a gene>." "copy." Merriam-Webster Online Dictionary. 2010. Merriam Webster Online. <http://www.merriam-webster.com/dictionary/. When used as a verb, copy is defined as 1) to make a copy or duplicate of;

    2) to undergo copying." Id.

    
    

34. Similarly, the term "reproduce" is a transitive verb defined as "to produce again: as a) to produce (new individuals of the same kind) by a sexual or asexual process; b) to cause to exist again or anew <reproduce water from steam>; c) to imitate closely <sound affects can reproduce the sound of thunder> d) to present again; e) to make a representation (as an image or copy) of; . . . f) to revive mentally: RECALL . . . ." Id.

35. On a technical level, Respondent did not personally either copy or reproduce anything related to the FCAT. However, clearly he asked his students to revive mentally or recall, and therefore reproduce, questions for the FCAT. While their recollections may not have resulted in a duplicate of the questions, he used his students as a conduit to obtain the test material. To that extent, he is guilty of violating the provisions of Section 1008.24(1)(b), Florida Statutes, and Florida Administrative Code Rule 6A-10.042(1)(b).

36. The inquiry does not stop there, however. The only violations for which discipline is authorized are those alleged in the Administrative Complaint and contained in Section 1012.795, Florida Statutes, and by means of Section

1012.795(1)(j), those violations identified in the Principles of Professional Conduct for the Education Profession as prescribed in Florida Administrative Code 6A-1006.

1. The Administrative Complaint alleges that Respondent's conduct failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health or safety, in violation of Rule 6A-1.006(3)(a). There was no evidence that Respondent's actions violated the provisions of this rule. No threat to any student's physical or mental health was alleged or proven, and no conditions harmful to learning were demonstrated. Respondent's actions, though misguided, were intended to help his students understand the concepts presented on the test. No tests were invalidated and there was no evidence that any student suffered any adverse education consequences as a result of the post-FCAT assignment. Compare Horne v. Gause, Case No. 04-3635 (DOAH April 6, 2005), adopted in toto, (EPC Final Order July 8, 2005).

2. Likewise, Petitioner did not establish that Respondent failed to maintain honesty in all professional dealings. Therefore, no violation of Rule 6A-1.006(5)(a) has been proven.

3. Even assuming a violation of either rule provision, the recommended penalty is wholly unwarranted. By all accounts, Respondent is a fine teacher with no prior disciplinary history. The local school district suspended him without pay for ten days and issued a reprimand. Despite not being paid during the

   suspension, Respondent continued to teach his class so as not to disrupt his students' educational progress. His principal, Donald Nelson, continues to regard him as a fine educator.

4. Under these circumstances, in light of the mitigating factors enumerated in Florida Administrative Code 6B-11.007(3), the following mitigating circumstances exist: the offense is an isolated one; Respondent has not been disciplined previously, and has taught for over 40 years; no damage occurred as a result of any violation; and no test results were invalidated or test questions thrown out. Further, Respondent has been discipline by the local school district by a 10-day suspension, which the school district felt to be adequate punishment. Respondent continued to teach his students while not being paid, evidencing his dedication to his students. The School Board has indicated a willingness to continue to employ Respondent, which it would not be able to do should recommended penalty be imposed.

5. Losing a teacher of Respondent's caliber would serve no one. In the event that the Commission rejects the undersigned's Conclusion of Law that no violation of Section 1012.795(1)(j), Florida Statutes, or Florida Administrative Code Rule 6A-1.006 was proven, a suspension of ten days, considered already served at the time he served his school district-imposed suspension; two years' probation; and a requirement that Respondent attend, at his own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case. See Winn v.

Parets Case No. 05-3220 (DOAH April 4, 2006), adopted in toto, (EPC Final Order February 14, 2007).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order dismissing the Administrative Complaint.

DONE AND ENTERED this 19th day of March, 2010, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2010.

ENDNOTES

1/ Students who testified at hearing are referred to by their initials.

2/ At hearing, it was agreed that Petitioner would late-file certain exhibits because when he originally received copies of the documents, the names of students had been cut off. Among those exhibits that were to be late-filed were Petitioner's Exhibit 6 (identified as the FCAT questions written by L.S.), and composite exhibit 16 (identified in the transcript as the collection of questions/answers submitted by students). Petitioner promptly

filed the substituted exhibits within the timeframe contemplated at hearing. However, the exhibits submitted included a Composite Exhibit 6 and no Exhibit 16.

COPIES FURNISHED:

Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Donald E. Pinaud, Jr., Esquire Kattman & Pinaud, P.A.

4069 Atlantic Boulevard

Jacksonville, Florida 32207

Kathleen M. Richards, Executive Director Department of Education

Education Practices Commission Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street 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: 09-004152PL

Orders for Case No: 09-004152PL