STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) Case No. 97-5285

)

JACQUELINE CHESTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida, on March 5, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barbara J. Staros, Esquire

215 South Monroe Street Second Floor

Tallahassee, Florida 32301

For Respondent: Stanley E. Marable, Esquire

677 North Washington Boulevard Suite 2

Sarasota, Florida 34236 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent’s certification as a teacher in Florida should be disciplined because of the matters alleged in the Administrative Complaint.

PRELIMINARY MATTERS

By Administrative Complaint dated October 28, 1996, Frank T.

Brogan, Commissioner of Education, recommended that the Education Practices Commission (EPC) impose an appropriate penalty against Respondent because of alleged misconduct in violation of Section 231.28(1)(I), Florida Statutes, Rules 6B-1.006(3) and Rule 6B- 1.006(5), Florida Administrative Code. Specifically, Petitioner alleged that Respondent violated testing procedures for the National Achievement Test by teaching items to her class directly from the state assessment test. Petitioner contends that Respondent thereby violated the Principles of Professional Conduct for the Education Profession in Florida by failing to make reasonable effort to protect her students from conditions harmful to learning and/or to the students’ mental health or physical safety; by intentionally exposing a student to unnecessary embarrassment or disparagement; and by failing to maintain honesty in all professional dealings.

Thereafter, Respondent admitted she was at all times pertinent to the issues herein, and is now, licensed as an educator in Florida. She also admitted she entered into a Settlement Agreement with the Sarasota County School Board on July 12, 1995, which resulted in her being suspended without pay for one day. Respondent denied all other allegations and demanded formal hearing. This hearing ensued.

At the hearing, Petitioner presented the testimony of Sally H. Forsch, at the time in issue a second-grade teacher; Sheryl Kurtin, at the time in issue an Assistant Principal; Jacqueline C. Davenport and Cynthia P. Wajda, at the time

teachers; and Amanda Salazar, at the time in issue an instructional aide; all employed at Tuttle Elementary School in Sarasota. Petitioner also introduced Petitioner’s Exhibits 1 through 3. Respondent testified in her own behalf and also introduced Respondent’s Exhibit A. The parties submitted Joint Composite Exhibit 1.

A transcript of the proceedings was furnished. Subsequent to the filing of the transcript, both counsel submitted written argument and Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and certification of teachers in Florida and for the regulation of the teaching profession in this state. Respondent was certified under Florida Educator’s Certificate Number 517092, covering the areas of Early Childhood Education and Elementary Education, with an English Speakers of Other Languages endorsement, through June 30, 1999.

2. On or about April 4, 1995, Respondent was employed as a second-grade teacher at Tuttle Elementary School in Sarasota County, Florida. She was assigned homeroom number R5, which was contiguous to room R6, assigned to Ms. Frosch, also a second- grade teacher. Room R5 was the end room of four rooms in a row. Room D7 was assigned to Ms. Davenport, and Room D8 was assigned to Ms. Wajda. Respondent taught a self-contained second grade

   class made up of students, some of whom were learning disabled, some emotionally handicapped, and some who spoke English as a second language. These students took their special classes, (music, art, etc.), at a time other than when the continuous progress students took them.

3. Tuttle Elementary School was scheduled to administer the National Achievement Test on April 4 - 18, 1995. Prior to

   April 4, Ms. Kurtin, an Assistant Principal at Tuttle, had scheduled a series of meetings in advance of the testing to brief the teachers and advise them of the ground rules for the testing process. Second grade teachers were scheduled to meet at

   1:45 p.m. on Tuesday, March 22, 1995, and English Speakers of Other Language (ESOL) teachers were scheduled to meet at

   3:00 p.m. on Wednesday, March 23, 1995. Respondent attended at least one of those meetings. At the meetings, the teachers were briefed on, among other matters, how to maintain security of the test booklets. Included was an injunction not to teach the students directly from the booklets in advance of testing.

4. The test materials for the students were given to the individual teachers the day before the testing was to begin. The teachers had received their test manuals earlier and were instructed to safeguard them to insure the integrity of the test process. Testing for the second grade was to last between 25 to

   40 minutes per day over a period of 6 to 7 days. Students in grades 1 through 3 were to place their answers directly into the test booklets. Students in grades 4 and 5 were provided answer

   sheets on which to place their answers. After each test session, the teachers were to collect the test booklets and, prior to turning them in for grading, go through them to erase or otherwise remove extraneous marks on the pages which might confuse the machine grading of the students’ test answers. After cleaning, the test booklets were to be secured until the next testing session or the end of the testing.

5. One day during the testing period in the spring of 1995, Ms. Frosch was alone in her classroom while her students were at specials after the morning testing session. At approximately 10:15 a.m. she went outside her room for a break. When she went back inside, she heard Respondent talking with her class in the Respondent’s classroom. Though there is what appears to be a brick wall between Ms. Frosch’s room and that of the Respondent, Ms. Frosch contends she was able to hear what Respondent was saying, and it became clear to her that Respondent was reading exactly from the test booklet. In fact, Ms. Frosch took out her own booklet and was able to follow along with the Respondent.

   She heard Respondent read question 7, and heard the students give the answer. If a child gave the wrong answer, Respondent corrected the answer.

6. Ms. Frosch, feeling that someone else should verify what was happening, went through the door which separated her room from that of Ms. Davenport, her team teacher. The desks of Ms. Frosch and Ms. Davenport were both near the doorway which joined their rooms. Frosch had Davenport come into her room and listen

   at the wall. Ms. Davenport heard Respondent reading word-for- word from the test booklet. By this time, Respondent was at question 12, and Ms. Davenport was able to follow along in Frosch’s test booklet. Though she only stayed to listen a short while, Davenport was shocked to hear what was going on because the material being discussed was on the test scheduled to be administered the next day.

7. Ms. Frosch also got Ms. Wajda, from the next room down, and her aide, Ms. Salazar, to come to the room to listen also. Both Wajda and Salazar also heard Respondent reading the test questions aloud, word-for-word, to her students. By this time, Respondent was on page 11 of the booklet at questions 34 and 35. They heard Respondent read a question and the four possible answers, and then respond if the child selected the correct answer.

8. Rather than use the in-room call button, Ms. Wajda went to get Ms. Kurtin, the Assistant Principal, at her office. She did this because in her opinion, it was inappropriate for Respondent to be doing what she was doing. Ms. Kurtin believed she was being taken to the Respondent’s room for a student discipline problem. She had no idea of the nature of the situation until she got there.

9. When Ms. Kurtin reached Respondent’s room, she observed Respondent seated at her desk reading from what appeared to be a test booklet. Kurtin could not say that Respondent was reading from it verbatim. When questioned by Kurtin, Respondent said she

   was practice testing, but was changing the words in the questions. Ms. Kurtin advised respondent that it was inappropriate to use the real test booklets to practice from and to please put them away. Respondent did as Ms. Kurtin asked, but Kurtin felt nonetheless that she had to report the matter, which she did.

10. Respondent has been a teacher since graduation from college in 1981. She started teaching at Tuttle at the second- grade level during the 1990-1991 school year. During the 1994- 1995 school year, the year in issue, she was a regular classroom teacher with 25 students of varying cultures and abilities. Only

    6 of her students were regular students. The others were learning disabled, emotionally handicapped, or ESOL students.

11. Respondent had worked with Ms. Frosch and some of the other teachers on teams for five years. She claims to be a soft- spoken individual and does not believe she could have been heard through the brick wall which separated her room from that of

    Ms. Frosch. She claims that as an African-American, she did not fully fit in with the other teachers, and her opinions and ideas were not given the same deference and consideration as those of the others. Notwithstanding that all of the other witnesses claimed to have experienced a congenial working, if not social, relationship with Respondent, she asserts that Frosh and Davenport would comment about her classroom discipline skills to the Principal who would, in turn, report the comments to her.

12. Ms. Chester has administered the NAT many times before

    and knows the requirements for test security. On April 4, 1995, the day in issue, she arrived at school at the normal time.

    Because it was a test day and students normally pulled out were not taken, she had all her students with her in the room. For some reason not fully disclosed, her students were not to be tested until the next day. To spend the time productively, without following the regular lesson plan while the students were still coming in, she took her teacher’s manual, not, she claims, the actual test booklet, and started working with the children.

    She is adamant that she was not reading from the actual test manual. Though not made clear by the evidence at trial, it is most likely that she was reading from the teachers’ test booklet which, while not given to the students, contains the same materials and questions.

13. Respondent is puzzled by several matters. She does not accept that the complaining teachers could have heard her as they claim, because she speaks so softly. There is, however, a door on either side of the room which joins it to the outside and to the adjoining room. She does not understand how she could have progressed from question 7 or 10, where she was first heard, to questions 34 or 35, where she was reading when Ms. Kurtin came in. It is not clear how much time passed from Frosch’s initial alert until the arrival of Ms. Kurtin. Finally, she does not know why the in-room call button was not used to summon Ms. Kurtin instead of Ms. Wajda going to get her in person. None of these questions has any material impact on the ultimate

    determination of the issue of whether Respondent was reading from the test manual.

14. None of the teachers who testified on behalf of the Petitioner was of the opinion that the Respondent’s action in reading to her students from the test booklet was harmful to their mental health or physical safety. By the same token, no one opined that her actions exposed the students to unnecessary embarrassment or disparagement. No independent evidence was introduced by the Petitioner to support such allegations. It was accepted, however, and it is found, that Respondent’s use of the test booklet to practice with the children, regardless of her belief that the students would not remember enough to do them any good, was not professionally honest. It is irrelevant that no benefit to the Respondent could have resulted from the possibility that her students might have scored higher on the

    tests than they might have had she not read the questions to them.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

16. In the Administrative Complaint filed herein, the Petitioner has alleged that by reading to her students directly from the test manual, whether the one to be used by the students or the one for the use of the teacher, Respondent violated the Principles of Professional Conduct for the Education Profession, as set out in Rules 6B-1.006(3), and (5), Florida Administrative Code.

17. Section 231.28(1)(l), Florida Statutes, authorizes the Education Practices Commission to discipline the teaching certification of any licensed teacher who has violated the Principles of Professional Conduct for the Education Profession. These principles, among other things, require a teacher to make reasonable effort to protect his or her students from conditions harmful to learning and/or to the students’ mental health or physical safety, and to refrain from intentionally exposing his or her students to unnecessary embarrassment. The principles also require a teacher to maintain honesty in all professional dealings.

18. In the instant case, the evidence, notwithstanding Respondent’s assertions to the contrary, clearly indicates that

    on the date alleged, she was overheard by several other teachers and by an Assistant Principal quizzing her students directly from either the teachers’ manual or from the test itself, which soon was to be administered to those students as a part of a system- wide testing program. It matters not whether the manual from which Respondent read was the test manual or the teacher’s manual. The test questions contained in each were the same.

19. No evidence was introduced by Petitioner to indicate that Respondent’s actions as alleged were harmful to her students’ mental health or physical safety, or exposed them to unnecessary embarrassment. However, pre-exposing her students to the questions on a nationally administered test, prior to the administration of that test, can reasonably be considered to constitute exposing them to conditions harmful to learning, regardless of whether they would not remember enough of the material to gain an advantage on the test, as she suggested.

    This is recognized and proscribed in Rule 6A-10.042(1)(f), Florida Administrative Code, wherein it is noted that activity such as engaged in by Respondent could result in the inaccurate measurement or reporting of the achievement of test takers.

20. Further, Respondent’s actions clearly constituted a failure on her part to maintain honesty in all her professional dealings regardless of the fact she would receive no personal benefit from a good showing on the test by her students. Therefore, it is appropriate that some discipline be imposed.

21. Rule 6B-11.007, Florida Administrative Code, contains

the disciplinary guidelines applicable to statutory violations, and the Education Practices Commission has applied that provision found in Rule 6B-11.007(f) in cases where teachers have followed improper testing procedures. Here, Petitioner seeks to place Respondent’s license on probation for three years; reprimand her; and require her to take two three (3) hour college-level courses or an inservice equivalent in the area of ethics and testing procedures. In light of the reduced findings and the conclusions cited above, and the fact that no other misconduct has been shown, probation for three years is excessive.

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 Respondent guilty of exposing her students to conditions harmful to learning and of failing to maintain honesty in all professional dealings. It is further recommended that her certification as a teacher be placed on probation for one year, that she be reprimanded, and that she be required to take at least six hours of continuing education in the area of teacher ethics and testing procedures.

DONE AND ENTERED this 13th day of April, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1998.

COPIES FURNISHED:

Barbara J. Staros, Esquire

215 South Monroe Street Second Floor

Tallahassee, Florida 32301

Stanley Marable, Esquire

677 North Washington Boulevard Sarasota, Florida 34236

Kathleen M. Richards Executive Director

Educational Practices Commission

325 West Gaines Street Suite 224-E

Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Iris Anderson, Program Specialist Procedural Safeguard

Department of Education

Bureau of Education for Exceptional Students

325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

325 West Gaines Street Suite 224-E

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: 97-005285

Orders for Case No: 97-005285