STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-4352PL

) AMENDED AS TO THE COPIES

CHERYL MULHEARN, ) FURNISHED LIST

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

A formal hearing was conducted in this case on March 12, 2001, in Mary Esther, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 U.S. Highway 3315

Santa Rosa Beach, Florida 32459

For Respondent: Mary Aspros, Esquire

Thomas W. Brooks, Esquire Meyer & Brooks

2544 Blairstone Pines Drive Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and

Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about August 21, 2001, Petitioner Tom Gallagher, as Commissioner of Education (Petitioner) issued an Administrative Complaint against Respondent Cheryl Mulhern (Respondent). Said complaint alleged that Respondent violated testing procedures when she failed to follow a testing schedule and when she assisted her students with correct answers to test questions.

On September 26, 2000, Respondent filed an Election of Rights form. Petitioner referred this case to the Division of Administrative Hearings on October 24, 2000.

A Notice of Hearing dated November 14, 2000, scheduled the case for hearing on January 17, 2001. Subsequently, Administrative Law Judge Charles C. Adams granted two unopposed motions for continuance.

The hearing commenced on March 12, 2001. Petitioner presented the testimony of seven witnesses. Petitioner offered nine exhibits, eight of which were admitted into evidence.

Respondent testified on her own behalf and offered no exhibits.

The Transcript of the proceeding was filed on March 21, 2001. Petitioner and Respondent filed their Proposed Recommended Orders on March 30, 2001.

FINDINGS OF FACT

1. Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002.

2. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract.

3. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers.

4. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also

   participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores.

5. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures.

6. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her

   return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures.

7. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator.

   Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent.

8. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers

   were not supposed to interfere with the natural responses of the children during the test.

9. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted.

10. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart.

11. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions.

12. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including

    Respondent, were required to sign.1 See Section 228.301, Florida

    
    

    Statutes, and Rule 6A-10.042, Florida Administrative Code.

    
    

13. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part:

    TEST SECURITY-PROHIBITED ACTIVITIES:

    1. Copying or reading the student responses during testing or after testing.

    2. Mishandling of secure material--Breaks in number codes, Destruction of materials.

    3. Reading test items.

    4. Interpreting a test passage or item from the test.

       
       

       The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions.

14. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2

15. Based on the instructions she received from

    
    

    Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section;

    1. making sure that the students followed and understood the

       test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test.

16. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999.

17. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it."

18. Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent

    would nod her head when encouraging students and shake her head when telling students that she could not help them.

19. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it.

20. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working.

21. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine.

22. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed.

23. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session.

24. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT.

25. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled.

26. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent.

27. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating.

28. After hearing Ms. Clark express her suspicions,

    
    

    Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session.

29. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3

30. Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of

    his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test.

31. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students.

32. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

34. Petitioner must prove by clear and convincing evidence that Respondent failed to follow the prescribed testing schedule and assisted her students with correct answers to questions in violation of Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

35. Section 231.28(1), Florida Statutes (1997), states as follows in relevant part:

    (1) The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person . . . or to impose any other penalty provided by law, provided it can be shown that such person:

    
    

    * * *

    1. Has been guilty of gross immorality or an act involving moral turpitude.

    
    

    * * *

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules 4

36. Section 228.301, Florida Statutes (1997), states as follows in pertinent part:

    1. It is unlawful for anyone knowingly and willingly to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students . . . or, with respect to any such test, knowingly and willfully to:

       * * *

       (c) Coach examinees during testing or alter or interfere with examinees' responses in any way;

       
       

       * * *

       
       

    2. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both.

    
    

37. Rule 6A-10.042, Florida Administrative Code, provides as follows in relevant part regarding maintenance of test

    security:

    
    

    1. Test implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17,

       233.011, 239.301(10), 240.107(8), and

       240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.

       
       

       * * *

       
       

       1. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.

       2. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring examinations.

       
       

       * * *

       
       

    2. 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.

    
    

38. Rule 6B-1.006, Florida Administrative Code, states as follows 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:

       1. Shall make a 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.

          
          

39. Rule 6B-4.009(6), Florida Administrative Code, states as follows in pertinent part:

    1. 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.

    
    

40. In this case, the evidence is not clear and convincing that Respondent is guilty of violating Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), or Rules 6B-1.006 (3)(a) and 6B-1.006(5)(a), Florida Administrative Code. Respondent did not assist her students with answers to test questions or interfere in any way with the children's natural responses to test questions.

41. Respondent did not make any attempt to conceal her actions during the test from Ms. Clark, Ms. Weikel, or Ms. Ball. She candidly told Ms. Ball prior to the last test session that several of the children had overlooked one poorly placed test question in particular. Ms. Ball did not take that opportunity

    to inform Respondent that it was inappropriate to point out skipped test items.

42. Respondent, like Petitioner's witnesses, believed it was appropriate to encourage the children to keep working when they fell behind and to tell them to reread questions that were overlooked. If it was inappropriate for Respondent to use verbal and/or non-verbal cues to tell students that she could not provide them with answers or to encourage them to keep working or to point out an overlooked question, the instructions received during Ms. Weikel's training session should have been more explicit.

43. At the most, Respondent may have inadvertently read some of the test items as she circulated the room to ensure that the students were not falling behind, working in the wrong section of the test booklet, or bubbling in answers indiscriminately. However, Respondent was not charged with violating test security by reading the test items.

44. Respondent admits that she did not strictly follow the established testing schedule. The method she used to time the test sessions and to keep the children advised of the time limitations was more than reasonable under the circumstances. Moreover, there is no persuasive evidence that Respondent's

students or any other children in neighboring rooms suffered any harmful effects as a result of Respondent's class starting test sessions or taking breaks a few minutes early.

RECOMMENDATION

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

RECOMMENDED:

That the Education Practices Commission dismiss the Administrative Complaint.

DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 27th day of April, 2001.

ENDNOTES

1/ A copy of the security paper, without Respondent's signature was offered for admission into evidence. Respondent admitted that she was aware of the applicable criminal statute and rule prohibiting her from assisting her students with answers to test questions.

2/ The FCAT testing manual was not offered for admission into evidence.

3/ Neither Ms. Weikel nor Ms. Ball thought it was appropriate to review the test booklet in February 1999 to determine whether the question at the top of the page was potentially misleading in its placement. A copy of the test booklet was not offered for admission into evidence.

4/ This section is currently renumbered as Section 231.2615(1), Florida Statutes.

COPIES FURNISHED:

J. David Holder, Esquire 24357 U.S. Highway 3315

Santa Rosa Beach, Florida 32459

Mary Aspros, Esquire Thomas W. Brooks, Esquire Meyer & Brooks

2544 Blairstone Pines Drive Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

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

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 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: 00-004352PL

Orders for Case No: 00-004352PL