STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

HARRIET PARETS,

Respondent.

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) Case No. 02-4759

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RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on May 19-20, 2003, in Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Aaron Behar, Esquire

Panza, Maurer & Maynard, P.A. 3600 North Federal Highway

Bank of America Building, Third Floor Fort Lauderdale, Florida 33308

For Respondent: Mark J. Berkowitz, Esquire

Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, Harriet Parets, should be suspended from her employment for a period of 30 days based upon a

violation of testing protocols in administering the Florida Comprehensive Assessment Test (FCAT).

PRELIMINARY STATEMENT

This case began on March 15, 2002, when the Petitioner, Broward County School Board (Petitioner or Board), commenced an investigation of allegations regarding the Respondent's conduct during FCAT testing. The Petitioner issued a Notice of Investigation to Respondent to advise her of the pending investigation. At the same time the Respondent was placed on administrative leave, with pay, pending the outcome of the investigation.

Various individuals were interviewed regarding the allegation that the Respondent had assisted students or violated testing protocols in her classroom while they took the FCAT examination. At the conclusion of the investigation, school administrators determined the Respondent's class results would be invalidated. Additionally, disciplinary action against the Respondent was commenced.

At all times material to this case, the Respondent has maintained she followed proper test protocols and did nothing to influence the students as they took the FCAT. The Respondent claimed that she used the same testing technique for this exam as she had on prior occasions. The Respondent disputed the necessity to invalidate the scores. The Respondent timely

challenged the disciplinary action and sought an administrative review of the allegations. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on December 10, 2002.

At the request of the parties the case was continued on two occasions. A last request for continuance filed by the Respondent was denied. The Petitioner's Motion for Summary Final Order and Motion to Strike were also denied. A Request for Judicial Notice (treated as a Request for Official Recognition) was granted.

The case ultimately came to hearing on May 19-20, 2003. At that time, the Petitioner presented testimony from students, a test proctor, and other school personnel. The Respondent testified on her own behalf and presented additional comments from a parent. The transcript of the proceedings, filed with the Division of Administrative Hearings on June 18, 2003, more fully documents the names of the persons who testified in this cause.

The transcript also itemizes the exhibits that were offered and received into evidence. The parties timely filed Proposed Recommended Orders that have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner, is responsible for the administration and operation of all public schools within the Broward County School District. As such, its authority covers personnel and employment including the discipline of its teachers.

2. At all times material to the allegations of this case, the Respondent, Harriet Parets, was employed as an elementary school teacher in the Broward County School District.

3. The Respondent holds Florida Educator's Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008.

4. Prior to the incidents complained of in this cause, the Respondent taught in the Broward County School District without discipline for six years. The Respondent was in her seventh year with the system when the allegations of this case arose.

5. The Respondent had administered the FCAT on five prior occasions.

6. During the 2002 school year the Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11-13, 2003.

7. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and

   directed the teachers in the administration of the FCAT. It included information not previously addressed by the video.

8. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited.

9. Teachers at McNab were advised of the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT.

10. In fact, as McNab had received an "A" rating in the past (following good FCAT results), the school had received special funding tied to that performance.

11. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed.

12. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor

    along with the teacher who was primarily responsible for the test administration.

13. In this case, the proctor and several students verified comments from the Respondent that deviated from the scripted instructions.

14. Contrary to the scripted instructions the Respondent looked at the students' test booklets, told more than one student to re-exam their work for errors, and pointed out a wrong answer. The Respondent announced to the class as a whole that she was "seeing a lot of wrong answers."

15. The Respondent was not authorized to make comments during the administration of the test. More important the Respondent was not permitted to assist by any means the students who were taking the FCAT.

16. The Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). The Respondent knew or should have known that she had been directed to watch the video.

17. The Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher's testing manual.

18. The issues of the Respondent's comments to the class and the level of assistance she had provided to students came to light when a student told her mother of the Respondent's

    conduct. The mother then contacted a school administrator to make the alleged improprieties known.

19. After determining that the Respondent had assisted students in her class, administrators invalidated the test results from the Respondent's class.

20. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an "A" performing school under the state guidelines. Had the results from the Respondent's class been included, the school might have qualified and received recognition as it had in the past.

21. Following the investigation of the case, the school district superintendent recommended that the Respondent be terminated from her employment.

22. After hearing comments on the matter, the Petitioner took the action at issue herein, the suspension without pay for

    30 days. The Respondent timely challenged that proposed action.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.569, Florida Statutes.

24. The Petitioner bears the burden of proof in this case to establish by a preponderance of the evidence the allegations against the Respondent. It has met that burden.

25. Section 230.23, Florida Statutes, authorizes the Petitioner to suspend or dismiss employees of the school district.

26. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam.

27. Additionally, Rule 6A-10.042, Florida Administrative Code, prohibits interfering with "in any way" persons who are taking the FCAT in order to assist their performance. Clearly, the Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers.

28. By deciding to only suspend the Respondent (as opposed to dismissal), the Petitioner has recognized her past contribution to the school district. That the Respondent blames others for her violation of testing protocols is regrettable. The Petitioner has established that the Respondent violated testing protocols and should be disciplined.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending the Respondent without pay for a

period of 30 days. Further, before being permitted to administer the FCAT again, the Respondent should be required to complete a training course in the administration of the exam, including all testing protocols.

DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH 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 31st day of July, 2003.

COPIES FURNISHED:

Mark J. Berkowitz, Esquire Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301

Mark A. Emanuele, Esquire

Panza, Maurer, Maynard & Neel, P.A. 3600 North Federal Highway

Bank of America Building, Third Floor Fort Lauderdale, Florida 33308

Dr. Franklin L. Till, Jr. Superintendent

Broward County School Board 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Daniel Woodring, General Counsel Department of Education

1244 Turlington Building

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: 02-004759

Orders for Case No: 02-004759