STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-2571

)

KAY KENNEDY, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 29-30, 1998, a formal administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C. Wesley Bridges II, Esquire

Pinellas County School Board

301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684 STATEMENT OF THE ISSUE

The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.

PRELIMINARY STATEMENT

By letter dated May 6, 1997, the Superintendent of Pinellas County Schools notified Kay Kennedy that he was recommending she be dismissed from her employment. The letter identifies the grounds for dismissal as follows:

My recommendation for dismissal is based on the fact that shortly before the administration of the CTBS test in April, 1997, you verbally provided questions and answers which appeared on the Social Studies section of the test to students in your class. Also, while monitoring the administration of the Mathematics section of the CTBS test, you provided written assistance to a student. In addition, you have received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.

Ms. Kennedy requested a formal administrative hearing. The School Board forwarded the request to the Division of Administrative Hearings, which scheduled the proceeding.

At the hearing, the School Board presented the testimony of

17 witnesses and had exhibits numbered 1-9 admitted into evidence. Ms. Kennedy testified on her own behalf, presented the testimony of 12 witnesses and had exhibits numbered 1-3 admitted into evidence. The prehearing stipulation filed by the parties was admitted as an administrative law judge’s exhibit.

A transcript of the hearing was filed. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes.

2. Since 1990, the Respondent has taught at Safety Harbor Middle School.

3. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career.

   The Test Review

   
   

4. The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students.

5. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states.

6. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released.

7. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school.

8. Teachers in each school review the material with

   students in the days immediately prior to administration of the

   test. Reviews may take as much as a full week of class time to complete.

9. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews.

10. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review.

11. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period.

12. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test.

13. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents.

14. One student’s father, a principal at another Pinellas

    County School, was already concerned with the Respondent and had

    complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal.

15. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable.

16. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter.

17. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test.

18. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned.

19. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from

    sharing test content with students who will be tested the next year.

20. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test.

21. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year.

22. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues.

23. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the

    allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested.

24. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons.

25. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students.

    Assistance During the Exam

    
    

26. At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test.

27. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test.

28. The Respondent saw R. M. filling in boxes on his test

    answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct.

29. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task.

30. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test.

31. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance.

32. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam.

    Prior Reprimands

    
    

33. The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.”

34. The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed.

35. The prior allegations provide no basis for any current

    disciplinary action.

    CONCLUSIONS OF LAW

    
    

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

37. The Petitioner has the burden to establish by a preponderance of the evidence that the Respondent's behavior constitutes misconduct in office sufficient to warrant the Respondent's termination. Allen v. Dade County School Board, 571 So. 2d 568 (Fla. 3rd DCA 1990). As addressed below, the burden has not been met.

38. Section 231.36(1)(a), Florida Statutes, provides that a member of an instructional staff employed under a professional services contract may be dismissed during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. In this case, the allegations involve misconduct in office.

39. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code., which is so serious as to impair the individual's effectiveness in the school system.

40. The evidence is insufficient to establish that the Respondent provided answers to the social studies portion of the 1997 CTBS test to her students.

41. The only evidence indicating that the Respondent had access to any CTBS exam is her administration of a CTBS test to students several years prior to 1997.

42. Although the students testified that the Respondent covered topics which appeared on the 1997 CTBS test, there is no evidence that the Respondent knew which version of the test would be administered to her students or knew which topics would be covered on the exam.

43. There is no evidence that the Respondent had access to the exam or knew which version of the several available would be administered in 1997.

44. There is no evidence which even suggests any motive for a teacher to advise students of CTBS test answers.

45. There is no evidence which indicates that the Respondent's students performed better on the social studies portions of the 1997 CTBS test than did other students who were presumably not provided with test answers.

46. As to the prior reprimands cited in the May 6 letter as grounds for dismissal, such issues were addressed and dismissed in a previous administrative action. They form no basis for discipline in this proceeding.

47. Finally, the provision of assistance to R. M. during the

math portion of the CTBS exam, while inappropriate, is insufficient to warrant termination of her employment. The evidence fails to establish that the Respondent's misconduct has impaired her effectiveness in the school system. To the contrary, the evidence establishes that the Respondent has been an effective teacher throughout her career, and remains a capable and respected member of the teaching community.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997.

DONE AND ENTERED this 23rd day of April, 1998, 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

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998.

COPIES FURNISHED:

C. Wesley Bridges II, Esquire Pinellas County School Board

301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779

Mark Herdman, Esquire

Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Dr. J. Howard Hinesley, Superintendent Pinellas County School Board

301 4th Street Southwest Largo, Florida 33770-2942

Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08

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: 97-002571

Orders for Case No: 97-002571