vs. ) CASE NO. 81-2775
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 18, 19 and 22, 1982, in Quincy, Florida.
For Petitioner: J. David Holder, Esquire
By Administrative Complaint dated September 24, 1981, the Commissioner of Education charged Respondent, Willie Ruth Williams ("Respondent"), with providing students with answers to the State Student Assessment Test, Part II ("SSAT") prior to the administration of that test; providing students with answers to county standardized tests; altering students' answers on the Criterion Reference Test in 1978; and, improperly influencing student testimony. The Administrative Complaint alleges that, as a result of the aforementioned conduct, Respondent is guilty of ". . . gross immorality and moral turpitude." and ". . . acts which have seriously reduced her effectiveness as an employee of the Gadsden County School System in contravention of 23l.28(1) Fla. Stat. (1977)." Respondent is also charged in the Administrative Complaint with violation of Section 231.09, Florida Statutes, and Rule 6B-1.01, Florida Administrative Code, by failing to set a proper example for students and by failing to practice her profession according to the highest ethical standards.
Respondent filed an Answer dated October 30, 1981, denying the allegations of the Administrative Complaint.
Final hearing in this cause was scheduled by Notice of Hearing dated December 2, 1981. At the final hearing Petitioner called Alonzo C. Brown, Judy Parramore, Barbara Jones, Bernice Phillips, Bettye Ponder, James Diamond, Linda Charleston, Jackie L. Gibson, Brenda Robinson, Linda Moye, Andrea Bryant, Catherine Frye, Carlos Deason, Linda Lockwood, Debra Russ, Sandra L. Robinson, Janice Lynette Pouncey, Timmy Jackson, Sylvia Holt, Katherine Peddie, Karlos Campbell, Leola H. Francis, and Grinelle Bishop as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 3 and 6 through 16, which were received into evidence. Respondent testified in her own behalf and also called Freddy D. Martin, Mary Akins, Marilyn Anderson, Inez Holt, Mildred Ross, Raymond Grant, Alma Byrd, Diane Williams, Constance Amelia Harris Long, Janie Betsy Dupont, Forrest Bradwell, Shirley Vickers, Adrienne D. Allen, Charles Hayes, John Holt, Reginald Harrison, Joanie Maples, and Edna Moye as her witnesses.
After the hearing in this cause, counsel for Petitioner filed a Motion for Hearing De Novo, on which the Hearing Officer reserved ruling. At the time counsel for Petitioner filed his proposed recommended order he renewed that motion. Ruling on the motion is contained in the Conclusions of Law section of this Recommended Order.
Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not contained in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by evidence of record.
Respondent holds Florida Teacher's Certificate No. 051784, Post Graduate, Rank II, valid until June 30, 1987, covering the areas of math and junior college. During the 1980-1981 school year Respondent was employed as a mathematics teacher at Shanks High School in Quincy, Florida. Respondent has, in fact, been an employee of the Gadsden County School System as a classroom teacher for the past 27 years.
On April 9, 1981, Linda Charleston, a student in Respondent's fifth grade remedial math class, was tested on Mini-Skills Test J-24. These so-called "mini-skills tests" are instruments used for the remediation of students in a variety of "skills," and consist of ten multiple-choice questions. For each "skill" tested, there existed two separate forms, one of which could be administered every three to six weeks in the event a student failed when the test was first taken. The tests were given this length of time apart so that students could be prevented from memorizing the ten multiple-choice questions. Judy Parramore, a teacher's aide at James A. Shanks High School who was in charge of administering the mini-skills tests, gave this particular test to Linda Charleston on April 9, 1981, and graded the results of the test. Miss Charleston correctly answered nine of the ten multiple-choice questions on the test given to her on April 9, 1981. Prior to that time. Ms. Parramore had administered the same skills test to Linda Charleston, and the student had on that occasion scored zero. Miss Charleston's answers were identical on both tests. Answers given by the student were the answers to Mini-Skills Test J-24, Form B. Because of this dramatic and incongruous improvement in Miss Charleston's test scores, Ms. Parramore brought the matter to the attention of the school administration. As a result, on April 9, 1981, Carlos Deason, the Shanks High School Principal; Ms. Parramore; and Bettye Ponder, Curriculum Assistant and teacher at Shanks High School, interviewed Miss Charleston.
During the course of this interview, Miss Charleston furnished information which
implicated Jackie Gibson, a fellow Shanks student, who, according to Miss Charleston, had given her the answers to Mini-Skills Test, J-24, Form B. According to Miss Charleston, Miss Gibson had advised her at the time that she received the answers that Miss Gibson had gotten the answers from Respondent.
Mr. Deason, Ms. Parramore, and Ms. Ponder then interviewed Jackie Gibson, who advised them further that Respondent had given her the answers to Mini-Skills Test RC-7, Forms A and B. Miss Gibson also at that time furnished a sheet purportedly containing the answers to the State Student Assessment Test, Part II, Math, for the April 2, 1981, testing session, which she said had been given to her by Brenda Robinson, a fellow student. According to Miss Gibson, Miss Robinson told her that she had received this answer sheet from Respondent.
Brenda Robinson was then called into the meeting to be interviewed by Mr. Deason, Ms. Parramore and Ms. Ponder. Miss Robinson at that time advised that she had gone to Respondent's homeroom class on April 2, 1981, the day the SSAT II exam had been administered, and had gotten the answers to that test from Respondent.
Finally, Linda Moye, another Shanks student, was interviewed, and also implicated Respondent as having furnished her with answers to unspecified mini- skills tests.
At the conclusion of the student interviews on April 9, 1981, each of the aforementioned students signed written statements attesting to the facts hereinabove recited. Subsequently, approximately one week later, these students were called back to give sworn statements before a court reporter. Although these statements were not introduced into evidence at the final hearing in this cause, each of the students either recanted his or her earlier statements to school administrators or refused to again discuss the matter.
Since giving their initial statements to school administrators, all of the four students mentioned above have at one time or another--including in their testimony at final hearing in this cause--withdrawn their stories implicating Respondent as having furnished answers to either the SSAT II exam or the mini-skills tests. The students explain this change in testimony by accusing the school administrators who took their statements of having threatened them with refusing to allow them to graduate if they refused to identify Respondent as the source of the test answers. There is no credible evidence in this record to support such an accusation. Conversely, Petitioner explains the apparent change of heart to community pressure brought upon the witnesses at Respondent's behest. Again, there is insufficient evidence in this record to establish that fact.
The only consistent thread in the testimony of Linda Charleston is her admission that she had answers to certain of the mini-skills tests prior to the time she took them, and that she received those answers from Jackie Gibson. Beyond this, even the most cursory review of the record in this cause will reveal that the remainder of Miss Charleston's testimony is so contradictory and inconsistent as to be totally unworthy of belief in any particular.
The testimony of Jackie Gibson is consistent only in that she admits having answers to Mini-Skills Test RC-7, Forms A and B, and that she received a sheet containing answers to the SSAT II, Math, test from Brenda Robinson sometime after that test had been administered on April 2, 1981. At various points in this record, Miss Gibson implicates Respondent as being the source of these answers, and at other times testifies that she received the answers from
Bruce Bennett, Respondent's student assistant. Even when implicating Bennett, however, Miss Gibson is unclear as to where Mr. Bennett obtained the answers.
In short, because of the inconsistencies, inaccuracies, and contradictions in her testimony, it is specifically found that Miss Gibson's testimony is unworthy of belief beyond the point of establishing that she, in fact, furnished answers to Mini-Skills Test J-24, Form B, and RC-7, Forms A and B, to Linda Charleston, and that Brenda Robinson gave her what she thought to be an answer sheet to the SSAT II, Math, test for safekeeping sometime after that test had been administered.
Finally, Linda Moye also denied at the final hearing that Respondent furnished her answers to any mini-skills test.
Each of these student witnesses--Linda Charleston, Jackie Gibson, Brenda Robinson, and Linda Moye--were called as Petitioner's witnesses. They were neither declared, nor asked to be declared, "adverse" or "hostile" witnesses.
Respondent, testifying in her own defense, denied having furnished answers to any mini-skills tests to any of her students. The record in this case establishes that at least one security breach occurred at Shanks High School resulting in the loss or theft of at least one mini-skills test. In addition, the school administration apparently was aware that, prior to the incidents involved in this case, students had answers to various of these tests. In fact, this record establishes that the Respondent mentioned her concerns with security involving the mini-skills test to the principal, Mr. Deason, prior to the instant controversy. However, no effort was made to change the contents of the tests, at least from 1978 through the time of the improprieties alleged to have occurred in this case. There is, therefore, some explanation of record as to how students could have come into possession of these test answers. There is not, however, sufficient, competent, credible evidence to indicate that Respondent at any time, or in any fashion, furnished answers to any of these mini-skills tests to any student at James A. Shanks High School.
As previously mentioned, Brenda Robinson, a student in Respondent's fifth period remedial math class, on April 9, 1981, furnished to school administrators what appears from the record to be a key to the SSAT II, Math, test for the April 2, 1981, testing session. These answers were handwritten on a yellow, legal size piece of paper. Miss Robinson gave the answer sheet to Jackie Gibson to keep for her. This sheet was verified by Jim Diamond, general supervisor in charge of guidance and testing for the Gadsden County School Board, and Pat Gwen an employee in the student assessment section of the State Department of Education, as containing a majority of the correct answers to the SSAT II, Math, exam for the April 2, 1981, testing.
Alonzo Brown, a student in Respondent's homeroom class, testified that on the morning of April 2, 1981, Respondent told her homeroom class that she expected every student in the class to pass the SSAT test to be administered that day. Mr. Brown further testified that Respondent told her homeroom class that she had the answers to this test, and proceeded to pass out copies of the answers to the test for the students to copy. According to Mr. Brown, he took a copy of the answers home with him and placed them in his dresser drawer. According to Mr. Brown, this answer sheet was later misplaced, and was not produced by Mr. Brown at final hearing.
Respondent denies Mr. Brown's versions of the occurrences on April 2, 1981, and the greater weight of the evidence in this cause establishes Respondent was not even in her homeroom on the morning in question. Respondent's homeroom class was regularly assigned to another teacher on Tuesdays and Thursdays, so that it would have been highly unusual for her to have been in the room at all on April 2, 1981, which was a Thursday. In addition, the record clearly establishes that Respondent was involved in both a senior class meeting and a student council meeting on the morning in question during the period when her homeroom met on the morning of April 2, 1981. More important, however, is the question of how Respondent could have come into possession of the answers to the SSAT II, Math, test in the first instance. This examination is altered after each administration, so that no one, having seen a prior examination, would be able to use those answers on a subsequent test. In addition, no answer key to the SSAT II test is ever sent to an individual school district. The only keys available to this test were located in Iowa City, Iowa, and in the Department of Education in Tallahassee. As a result, the only feasible means available for obtaining answers to the SSAT II
test administered on April 2, 1981, would have been to obtain a copy of the test booklet itself. The test booklets were not received in the Gadsden County School System until the afternoon of April 1, 1981, the day before the test was administered. The tests were immediately secured and locked in the school's main office. Additionally, each of the tests contains an individual serial number, and is sealed prior to distribution to students at the time of testing. Any irregularity in the sealing of test booklets is required to be brought to the attention of school personnel at the time the test is administered. The record in this case contains no evidence of a breach in the security of the SSAT II test, other than the answer sheet which Jackie Gibson gave to school administrators on April 9, 1981. The security of the test was, therefore, obviously breached at some time prior to the time the test was given on April 2, 1981, or the "answer sheet" was made at or after the administration of the test. The latter possibility would, of course, exculpate Respondent of the charge in this case. Even in the former event, however, Respondent's denial of her involvement in any furnishing of answers to this examination is more credible than the accusation that she did so based solely upon answers contained on a piece of yellow legal paper obtained a week after the test was administered, when taken together with the more credible evidence placing Respondent outside her homeroom during the morning of April 2, 1981.
During the summer of 1978, Respondent, along with 36 other teachers, graded Criterion Reference Tests which had been administered to students at the conclusion of summer school at Shanks High School. During the grading of these tests, Respondent, in the presence of Katherine Peddie, a fellow teacher, made erasures and pencil marks on students' answer sheets on two or three occasions. Ms. Peddie did not immediately mention anything about this incident to Respondent, nor did she bring it to the attention of any of the monitors present in the room while the tests were being graded. After the test scoring had been completed, however, Ms. Peddie went to Carlos Deason, the principal of Shanks High School, and advised him of what she had observed. It should be noted here that Respondent is not simply charged with making marks and erasures on these students' answer sheets. Instead, she is charged with changing answers on these tests the effect of which changes is alleged to have resulted in ". . . altering the true score on those tests." Even when viewed in its most favorable light, Ms. Peddie's testimony does not establish any alteration in a student's test score. She merely observed some unexplained marks and erasures, the true effect of which is not clear from the record in this case, at least in part due
to the fact that Ms. Peddie did not bring anyone's attention to the matter when the actual tests could have been examined for alterations. Indeed, this Hearing Officer is unwilling to draw an inference that any such marks and erasures in fact have had the effect of altering the true score of any student's test, when the record does not clearly establish that fact.
As indicated earlier in this order, Linda Moye and Brenda Robinson gave statements implicating Respondent to school administrators on April 9, 1981. On Saturday evening, April 11, 1981, Miss Moye and Miss Robinson were questioned about their statements at a meeting of the local NAACP. Subsequently, on the afternoon of Sunday, April 12, 1981, Respondent and Leola Francis, a fellow teacher, spoke to Brenda Robinson about the statement she had given to school administrators on April 9, 1981. During the week following April 9, 1981, Jackie Gibson voluntarily went to Respondent at Shanks High School and asked Respondent to write a note for her to sign recanting her original statement of April 9, 1981. Respondent wrote such a note, which was signed by Jackie Gibson. As previously indicated, each of the students who gave statements to school administrators on April 9, 1981, subsequently recanted those statements either in sworn statements, depositions, or sworn testimony at final hearing. Another student, Barbara Jones, who testified in this proceeding, also received contacts from fellow students and from Leola Francis concerning her testimony in this proceeding. Ms. Jones also, shortly prior to the final hearing in this cause, received two telephone calls threatening her life should she appear to testify against Respondent. Notwithstanding these threatening telephone calls, Ms. Jones did, in fact, appear and testify. It does not appear from the record in this case that the threatening telephone calls affected Ms. Jones' testimony. Finally, Bettye Ponder, a curriculum assistant and teacher at Shanks High School, also received a threatening telephone call in the summer of 1981, and a "T" for traitor was burned in her front yard in August of 1981. Again, notwithstanding these threats, Ms. Ponder did, in fact, appear to testify at final hearing, and this record does not establish that these threats affected Ms. Ponder's testimony.
It is clear from the record in this case that this entire episode has generated a great deal of interest and anxiety in the Quincy community. It is equally clean that a number of people, students, teachers, and citizens alike, spoke with several of the witnesses concerning their testimony in this case. This record does not, however, establish that the Respondent either directly or indirectly had any hand in attempting to influence the testimony of any of the students or other witnesses in this cause.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) , Florida Statutes.
Section 231.28(1), Florida Statutes, which the Respondent is alleged to have violated, provides the Education Practices Commission with authority to suspend or revoke a teaching certificate, providing that it can be shown that the holder of that certificate
. . . has been guilty of gross immorality or an act involving moral turpitide; . . . upon investigation has been found guilty of personal conduct which seriously reduces his effective ness as an employee of the school board; or
has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the teaching certificate.
(Emphasis added.)
In addition, Respondent is alleged in the Administrative Complaint to have violated Section 231.09, Florida Statutes, and Rule 6B-1.01, Florida Administrative Code, ". . . in that respondent has failed to provide a proper example for students and has not practiced her profession according to the highest ethical standards."
It is well established that in administrative proceedings the party asserting the affirmative of an issue bears the burden of proof. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1 DCA 1977). It is equally well settled that ". . . the degree of such required proof is by a preponderance of the evidence Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1 DCA 1978). To successfully withstand judicial review, an agency decision must be supported by a record foundation of substantial, competent evidence. Section 120.68(10), Florida Statutes. Additionally, in Bowling v. Department of Insurance, 394 So.2d 165, 171-172 (Fla. 1 DCA 1981) the court held that:
In a proceeding under a penal statute for suspension or revocation of a valuable professional license, the term substantial competent evidence takes on vigorous impli- cations that are not so clearly present on other occasions for agency action under Chapter 120 . . . [W]e differentiate between evidence which substantially supports con- ventional forms of regulatory action and evidence which is required to support sub- stantially a retrospective characterization
of conduct requiring suspension or revocation of the actor's license. Evidence which is substantial for one purpose may be less
so on another, graver occasion.
Now we recognize also that in both form
and persuasiveness evidence may substantially support some types of agency action yet be wanting as a record foundation for critical findings in license revocations . . . [W]e glean a requirement for more substantial evidence from the very nature of license discipline procedures . . . and when the pro- ceeding may result in the loss of a valuable business or professional license, the
critical matters in issue must be shown by evidence which is indubitably as substantial as the consequence.
In anyone's judgment, a judge no less than any other, certain factors present in the record of penal proceedings fairly detract from the substantiality of evidence which is weighty enough
for less consequential purposes. One such factor is a grave penalty. In determining the substantiality of evi- dence, which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose a strict construction
on the penal statute. . . .
The record in this case establishes that security surrounding Gadsden County's Mini-Skills Tests and the SSAT II test was clearly, in some fashion, breached. The manner in which that breach occurred, insofar as this proceeding is concerned, has become irretrievably lost in a forest of admissions, recantations, and implausible explanations. No truly impartial review of the record in this cause can accurately reconcile the contradictions between the statements initially given by the involved students to school administrators on April 9, 1981, subsequent sworn statements taken from those students, depositions taken from those students prior to final hearing in this cause, and the testimony actually elicited from those students at final hearing. These students either totally recant statements given by them which implicated Respondent, or their testimony so totally degenerates into contradictions, inconsistencies, and convolutions as to totally befuddle any attempt to accurately ascertain what actually occurred. Suffice it to say here that the record in this case is inadequate to establish Respondent's culpability in any breach of security relating to either the Mini-Skills Tests, or the SSAT II test sufficient to meet the standards set forth in Bowling, supra.
Further, the testimony concerning the Criterion Reference Test, even when viewed in a light most favorable to Petitioner, is simply insufficient to establish a violation of any of the aforementioned statutes and rules. Finally, the charge that Respondent influenced students to change statements originally implicating her in the security breaches of the Mini-Skills Tests and the SSAT II test are totally without support in this record. The Hearing Officer is not so naive as to think that this situation went so unnoticed in the community that potential witnesses were not in some fashion either directly or indirectly affected by community opinion. However, there is insufficient foundation in the record in this case to conclude either that Respondent was involved as alleged, or that any such pressure in fact influenced any witness' testimony to the extent of depriving either of the litigants in this case of a fair hearing. Accordingly, Petitioner's Motion for Hearing De Novo be, and the same is hereby DENIED.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Education Practices
Commission dismissing the Administrative Complaint against Respondent.
DONE AND ENTERED this 20th day of September, 1982, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1982.
J. David Holder, Esquire 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302
Donald L. Griesheimer Executive Director
Ralph D. Turlington Commissioner of Education The Capitol
