STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

CAROLYN SUNDERLAND, )

)

Respondent. )

Case No. 03-0385PL

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings conducted a formal administrative hearing in this case on May 2, 2003, in Brooksville, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Mark Herdman, Esquire

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

Palm Harbor, Florida 34684 STATEMENT OF THE ISSUE

The issues in the case are whether Respondent committed the offenses enumerated in the Administrative Complaint filed by Petitioner and, if so, what penalty should be imposed against the Respondent.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 27, 2002, Petitioner Charlie Crist, as Commissioner of Education for the State of Florida (Petitioner), alleged that Carolyn Sunderland (Respondent), assisted students in answering questions on a test administered through the State Board of Education. Such misconduct by Respondent, it is alleged in the Administrative Complaint, is proscribed by provisions of Section 231.2615 and Subsections (1)(c), (f), (i), Florida Statutes. Additionally, the Administrative Complaint alleged Respondent's violation of Rules 6B-1.006(3)(a), (4)(b), and (5)(a), Florida Administrative Code, as well as Rules 6A-10.042(1)(c) and (d), Florida Administrative Code.

Respondent requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings which scheduled and conducted the proceeding.

At the hearing, Petitioner presented the testimony of two witnesses, including Respondent, and introduced three exhibits into evidence. Respondent presented the testimony of three witnesses and two exhibits.

The Transcript of the hearing was filed on July 14, 2003.

Both parties filed a Proposed Recommended Orders, which have been reviewed and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent holds a valid Florida Educator’s Certificate No. 514964, covering the area of elementary education, which is valid through June 30, 2007.

2. At all times material to this case, Respondent was employed as a teacher at Moton Elementary School in the Hernando County School District. She is admired and respected within Moton Elementary and is considered by her principal to be an excellent teacher. Her performance evaluations consistently reflect that she exceeds expected performances levels in every category. Her honesty and integrity are unquestioned. Respondent is viewed as the quintessential teacher who teaches simply because she loves working with children, watching them learn and grow.

3. Students in the State of Florida are administered a standardized test known as the FCAT. A portion of that test is known as the norm referenced test, or NRT. The NRT is used to compare students in Florida with the achievement of students in other states. It can also be used, as a secondary tool, in the placement of individual students.

4. Teachers are forbidden to give direct assistance to students on the FCAT and the NRT portion of the FCAT, although they can give general encouragement to a group of students. Respondent’s practice, during normal testing in the course of

   the school year, is to circulate throughout the classroom. If she sees a student that has incorrectly dealt with a problem, she will direct the student to review the problem, and to think about the answer.

5. Respondent was trained in how to administer the FCAT, including the NRT portion. Specifically, she was told she was not to give assistance to students as they were taking the test.

6. On the afternoon of the day in March of 2002 when concerns were raised about Respondent having assisted at least three students on the NRT portion of the exam, Principal Donnie Moen summoned Respondent to his office to ask her if anything unusual had happened during the test. Respondent told him nothing unusual had happened.

7. Later that evening, Respondent wondered out loud to her husband whether she had provided any assistance during the test. The next day, Respondent got the class together and asked the students whether she had provided any directions or assistance on any specific questions. Three students raised their hands and told Respondent she had provided assistance on a specific question.

8. Respondent then realized and now concedes that during the test, while circulating throughout the class, she told K.M. to check her answer to a certain question; told S.H. to go back to a certain question she had skipped over and check the answers

   to the questions that followed; and told F.M. he needed to check the aquarium problem.

9. When she realized she had given these students assistance on specific questions, she told the students she had to go to the principal to report what she had done. The students asked whether she would get in trouble. She reminded the students she had always thought that honesty was the best policy, no matter what happened. Respondent then reported to the principal to tell him she had provided some assistance to three different students on specific questions.

10. While Respondent avows she did not intentionally provide assistance to any students, Respondent did fail to distinguish between normal classroom testing procedures and standardized testing procedures.

11. Respondent’s effectiveness as a teacher has not been diminished by her actions. She continues to enjoy widespread support from staff, parents and school administration, although, as a result of the incidents in the NRT portion of the FCAT, Respondent accepted a "last chance agreement" with the local school district. Part of that agreement was a 10-working day suspension without pay, and probation for a period of one year.

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner bears the burden to prove the material allegations in the Administrative Complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Count 1 of the Administrative Complaint alleges misconduct in violation of Section 231.2615(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. That allegation has not been proven.

15. Count 2 of the Administrative Complaint alleges misconduct in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the School Board. The evidence establishes the contrary; Respondent is not guilty of Count 2.

16. Count 3 of the Administrative Complaint alleges misconduct in the violation of the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education. A review of all provisions of Rule 6B-1.006, Florida Administrative Code, fails to reveal that Respondent, based on the available evidence, has violated any specific provision of the Principles of Professional Conduct.

17. Count 4 of the Administrative Complaint alleges misconduct in that Respondent knowingly and willfully coached

    examinees during testing or altered or interfered with the examinees responses on a test administered by or through the State Board of Education or the Commissioner of Education to students. The evidence does not support a conclusion that Respondent knowingly or willfully coached, altered or interfered with examinees during testing. The words “knowingly” and “willfully” suggest an intentional act by Respondent. An “intentional” act is “done deliberately.” See American Heritage Dictionary of the English Language 683 (New college ed. 1979).

    The evidence establishes Respondent acted inadvertently in directing students to review their answers. There is no evidence she acted intentionally, knowingly or willfully.

18. Count 5 of the Administrative Complaint alleges misconduct in that Respondent failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students mental health and/or physical safety. That allegation has not been proven.

19. Count 6 of the Administrative Complaint alleges misconduct in that Respondent has intentionally distorted or misrepresented facts concerning an educational matter in direct or indirect public expression. That allegation has not been proven.

20. Count 7 of the Administrative Complaint alleges misconduct in that Respondent has failed to maintain honesty in all professional dealings. That allegation has not been proven. Respondent has shown an exemplary level of honesty and integrity

    by her actions since she realized she had made a mistake during the administration of the test.

21. Counts 8 and 9 of the Administrative Complaint allege Respondent assisted examinees and interfered with examinees in answering test questions while she administered or proctored a test implemented in accordance with the statutes set forth in Rule 6A-10.042(1), Florida Administrative Code. Those allegations have been proven.

22. Any discipline imposed for Respondent's commission of the offenses set forth in Counts 8 and 9 of the Administrative Complaint must take into consideration that Respondent provided the assistance not in the form of providing any answers, but in the form of telling students to review answers to specific

problems.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a Final Order retroactively suspending Respondent's certificate for a 10-working day period, coupled with probation for a period of one year. Such recommended penalty should run concurrently with discipline imposed by the Hernando County School District upon Respondent in April of 2002.

DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 29th day of July, 2003.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Bruce Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399

Marian Lambeth, Program Specialist Bureau of Educator Standards 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: 03-000385PL

Orders for Case No: 03-000385PL