STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

CAROL M. GONZALEZ,

Respondent.

/

Case No. 14-3907PL

RECOMMENDED ORDER

On December 17, 2014, Thomas Porter Crapps, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, conducted a final hearing in this case in Kissimmee, Florida. The final hearing was concluded on February 20, 2015, by teleconferencing in Tallahassee, Boca Raton, and Clearwater, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: Brandon Vicari, Esquire

Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

Whether Petitioner established by clear and convincing evidence that Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2012)1/, and Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a), as alleged in the Administrative Complaint; and if so, what penalty shall be imposed?

PRELIMINARY STATEMENT

On April 21, 2014, Petitioner, Pam Stewart, as Commissioner of the Department of Education (Petitioner), filed an Administrative Complaint charging Respondent, Carol M. Gonzalez (Ms. Gonzalez), with violating sections 1008.24(1)(b), (f) and (g), and 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rules 6A-10.042(1), (1)(b), and (1)(f) and 6A-10.081(3)(a), and (5)(a). Ms. Gonzalez filed an Election of Rights form on April 30, 2014, disputing the allegations in the Administrative Complaint and requesting an opportunity to negotiate a settlement.

On August 12, 2014, the Department of Education informed the director of the Education Practices Commission to schedule this case for a final hearing. On August 19, 2014, the case was transmitted to the Division of Administrative Hearings (DOAH), and a final hearing was scheduled for October 27, 2014.

Respondent requested a continuance, and the hearing was reset for December 17, 2014.

At the December 17, 2014, final hearing, Petitioner presented the testimony of Sheri Turchi, David Noyes, Amy Spence, Susan Lee, Lana Fenn, Angela Marino, K.A., and J.V.; and introduced into evidence Petitioner’s Exhibits 1 through 8.2/ Respondent offered the testimony of herself and Claudia Streeter at the December 17, 2014, hearing. The parties were unable to complete the presentation of evidence because of the unavailability to their expert witnesses. Consequently, the final hearing was reconvened on February 20, 2015.

The February 20, 2015, hearing was held telephonically, and the parties presented their expert witnesses. Petitioner presented the testimony of E’lyn Bryan and introduced into evidence Petitioner’s Exhibits 9 and 10; and Respondent presented the testimony of Bruce Dekraker and introduced Respondent’s Exhibits 1 and 2 into evidence.

A two-volume Transcript of the December 17, 2014, hearing was filed on January 22, 2015, and the Transcript of the February 20, 2015, hearing was filed on March 4, 2015. The parties requested additional time to file proposed recommended orders, which was granted, and the proposals were filed on March 20, 2015.

FINDINGS OF FACT

1. Ms. Gonzalez holds Florida Educator’s Certificate 910377, covering the areas of Elementary Education and English

   
   

   for Speakers of Other Languages, which is valid through June 30, 2019.

2. At all times relevant to the allegations in the Administrative Complaint, Ms. Gonzalez was employed as a third- grade teacher at the Poinciana Academy of Fine Arts in the Osceola County School District.

3. The Florida Comprehensive Assessment Test (FCAT) is a statewide assessment test for evaluating student progress in the Next Generation Sunshine State Standards. Consequently, the standardized test is highly structured, and teachers who proctor the test are given specific instructions on how to administer the FCAT.

4. The FCAT Test Administration Manual, section titled Administration and Security Agreement (Security Agreement), found on pages 315 through 317, specifically provides, in part, that:

   All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents.

   
   

   Further, the Security Agreement lists as prohibited activities “[c]opying the passages or test items,” and “[c]ausing achievement of schools to be inaccurately measured or reported.” Finally, the Security Agreement includes an acknowledgement that:

   I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported.

   
   

   On April 3, 2012, Ms. Gonzales signed the Security Agreement acknowledging her understanding of the test administration procedures.

5. Also, on April 3, 2012, Ms. Gonzalez signed a document titled Test Administrator Prohibited Activities Agreement stating her understanding on the procedures for administering the FCAT. In particular, Ms. Gonzalez acknowledged that before testing she could not “[r]ead test items,” and that after testing she could not “[d]iscuss the content of the test with students.”

6. On the week of April 18, 2012, the FCAT was being administered in the Osceola School District.

7. During the April 18, 2012, testing date, a portion of the FCAT test assessed the students’ math skills. Ms. Gonzalez and Claudia Streeter (Ms. Streeter) were teachers administering the FCAT exams in their respective classrooms. These classrooms are connected to each other through a common area that is shared with another teacher, Amy Spence (Ms. Spence). At the time,

   Ms. Streeter was a reading teacher with Poinciana Academy of Fine Arts.

8. After the morning testing session, Ms. Gonzalez and Ms. Streeter were eating lunch together in the common area.

   While in the common area, Ms. Spence entered the area to get her lunch. Ms. Spence overheard a comment between Ms. Gonzalez and

   
   

   Ms. Streeter that raised a question for her concerning whether or not the FCAT testing protocol was being followed. Specifically, Ms. Spence claimed that she heard Ms. Gonzalez state that she had looked ahead at the next day’s testing materials, a statement that both Ms. Gonzalez and Ms. Streeter deny having been made.

9. The undersigned finds Ms. Streeter’s explanation that she was reading the FCAT test administrator’s manual for the next day, Session 2, credible, and that neither she nor Ms. Gonzalez stated that they had reviewed the next day’s FCAT testing questions. Ms. Spence’s testimony that she heard Ms. Gonzalez state that she had reviewed the next day’s FCAT questions is not credited based on her prior inconsistent statements concerning what Ms. Gonzalez stated, as pointed out by the cross- examination.

10. In any event, Ms. Spence shared with another teacher that Ms. Gonzalez had indicated that she had previewed the FCAT questions for the next testing session. The teacher informed Ms. Spence that the comment should be reported to the school’s administration. Ms. Spence shared what she believed that she heard with David Noyes (Mr. Noyes), an assistant school principal, later that afternoon.

11. After speaking with Ms. Spence, Mr. Noyes contacted Sheri Turchi, the school’s Principal (Principal Turchi), about the alleged comments. In turn, Principal Turchi directed that

    
    

    the information be provided to the School District’s Testing Coordinator, Angela Marino.

12. Based on the statements allegedly made by Ms. Gonzalez and Ms. Streeter, Ms. Marino directed that neither Ms. Gonzalez nor Ms. Streeter be allowed to proctor the FCAT exam for the next

    day.

    
    

13. The next morning on April 19, 2012, before school

    
    

    started, Ms. Gonzalez and Ms. Streeter arrived at school.

    
    

    Ms. Streeter found Ms. Spence crying in her classroom and asked what was wrong. Based on Ms. Spence’s answer, Ms. Streeter believed that there was a “misunderstanding” about the FCAT, and that she and Ms. Gonzalez might be in trouble. Ms. Streeter and Ms. Gonzalez went to the school office to clear up what they thought was a misunderstanding. On arrival at the school office, Ms. Gonzalez and Ms. Streeter were separated and not allowed to return to their classrooms. School officials provided

    Ms. Gonzalez and Ms. Streeter with notice that they were being investigated.

14. School officials assigned two certified teachers with paraprofessionals to replace Ms. Gonzalez and Ms. Streeter in their classrooms for the FCAT testing that occurred on April 19,

    2012.

    
    

15. After the completion of the FCAT testing that second

    
    

    day, Ms. Marino along with Principal Turchi interviewed five or

    
    

    six students randomly selected from Ms. Gonzalez’s and Ms. Streeter’s classes about the FCAT testing. During the

    student interviews, Ms. Marino and Principal Turchi learned that Ms. Gonzalez and Ms. Streeter had combined their classes after the first day of testing. Further, some students stated that Ms. Gonzalez had conducted a short math study session in

    Ms. Streeter’s classroom. According to Principal Turchi, this study session or “drilling” of students between the two FCAT testing dates should not have occurred, and the classrooms should not have been combined without the administration’s approval.

16. Ms. Gonzalez and Ms. Streeter do not dispute that they had combined their classes after the FCAT testing on the first day. Further, Ms. Gonzalez testified that she did answer some students’ math questions, but that she only answered a couple of questions asked by a few students, and that the entire exchange lasted between three and five minutes. Following the exchange, Ms. Gonzalez testified that she “crumpled” up the paper and threw it away. The undersigned finds Ms. Gonzalez’s description of her answering some students’ questions credible.

17. Following the student interviews, school officials decided that substitute teachers would be needed to finish teaching Ms. Gonzalez’s and Ms. Streeter’s classes.

18. That afternoon, on April 19, 2012, after finishing the FCAT testing and classes, Mr. Noyes and Principal Turchi went to

    
    

    Ms. Gonzalez’s and Ms. Streeter’s classrooms to retrieve lesson plans for the substitute teachers. As Mr. Noyes looked for

    Ms. Streeter’s lesson plans, he found two pieces of paper on the ELMO, a device used for projecting an image onto a screen. The two pieces of paper contained handwritten math problems.

    Mr. Noyes and Principal Turchi recognized that the pieces of paper contained “line graph” problems, which was consistent with statements made by students concerning the math review conducted by Ms. Gonzalez.

19. Principal Turchi provided the papers to the School District, which then forwarded the documents to the State Department of Education.

20. A comparison of the math problems written on the two pieces of paper with math problems contained in the FCAT testing materials for the second session conducted on April 19, 2012, are, in some instances, extraordinarily similar. For example, one of the problems found on the paper in Ms. Streeter’s class concerning the number of hours spent in traveling between two cities, using two different clock-faces, used the same exact times. Another example of the problems being exactly the same is seen in a graph comparing the number of cans removed from two

    six-packs. These two examples, out of the 20 math problems found on the two pieces of paper, appear to be live FCAT questions.

    
    

    Some of the problems found on the paper, however, are different and do not appear to be copied from the FCAT.

21. The undersigned finds the testimony of students K.A. and J.V. that the two pieces of paper found in the classroom by Mr. Noyes as being the same paper used in the review conducted by Ms. Gonzalez is not persuasive. The students’ identification of the two pieces of paper does not meet the clear and convincing standard for two reasons. First, the undersigned did not find it credible that the students could positively identify the math problems found on the paper as being the same problems from the study review conducted by Ms. Gonzalez nearly two and a half years after the event. Second, the students’ written statements also suffer credibility problems. For example, K.A.’s written statement dated May 22, 2012, again over one month after the event at issue, states in pertinent part, verbatim:

    I was in Ms. Streeter class in Reading Ms. Streeter in math Ms. Gonzalez.

    Ms. Streeter gave me the FCat After sesion 1 they took the FCat Review some questions. it help me with Sesion 2 on paper it had 5x table. Ms Gonzalez review line plot. I saw under the smart board.

    
    

    Below K.A.’s written statement is another handwritten note by Ms. Sheree Fletcher which states:

    Sheree Fletcher showed K.A. the paper found in Ms. Streeter’s class – She recognized it as the review given by Ms. Gonzalez. SMF

    
    

22. This handwritten note consists of Ms. Fletcher’s hearsay statements about statements purportedly made by K.A., within the document. The undersigned finds neither the students’ testimony nor the offered written statements as providing clear and convincing proof that the paper found by Mr. Noyes was written by Ms. Gonzalez.

23. Both parties presented expert testimony in an attempt to address whether or not Ms. Gonzalez was the author of the paper found in Ms. Streeter’s classroom. The testimony showed that neither of the two experts viewed the original documents in formulating their opinions; rather, both witnesses were provided facsimile copies of the documents upon which to base their opinions. Ms. E’Lyn Bryan, Petitioner’s expert, offered the opinion that:

    After a thorough examination, it is the opinion of this examiner that based on the photo copies being a true representation of the original documents that the handwriting appears to be that of Carol Gonzalez.

    
    

    In contrast, Mr. Bruce Dekraker, Respondent’s expert, concluded that:

    With the material available for examination, and contingent upon all copies being true representations of the originals they represent, it has been determined that the absence of individual identifiable characteristics in the writing in question, precludes an identification or elimination with respect to Carol Gonzalez, (K1).

    
    

    The undersigned finds Mr. Dekraker’s explanation credible that without viewing the original documents for comparisons that it would be extremely difficult to make a definitive handwriting analysis. As Mr. Dekraker explained, handwriting analysis requires a comparison of the formation of the strokes and pressure applied to the paper. Moreover,

    Mr. Dekraker credibly explained that facsimile copies often distorted the letters and numbers, and that in the instant case there were too few numbers and letters to make a definitive analysis. This conclusion is reflected in Ms. Bryan’s own conclusion which conditions her own opinion on the photocopies being a “true representation” and states that the handwriting “appears to be that of Carol Gonzalez.” Based on the expert witnesses’ reports and testimonies, the undersigned finds that the handwriting evidence was inconclusive as to whether or not Ms. Gonzalez authored the two pieces of paper found in

    Ms. Streeter’s classroom.

    
    

24. Petitioner failed to prove by clear and convincing evidence that Ms. Gonzalez authored the paper found in

    Ms. Streeter’s classroom by Mr. Noyes.

    
    

25. Finally, Mr. Noyes, who is currently a principal at Kissimmee Elementary, credibly testified that Ms. Gonzalez is a teacher at his school, and that he considered her an asset to the school.

    
    

    CONCLUSIONS OF LAW

    
    

26. DOAH has jurisdiction over the subject matter and parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.

27. Petitioner seeks to discipline Ms. Gonzalez’s educator certificate. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

28. Clear and convincing evidence “requires more proof than a ‘preponderance of evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.”

    
    

    Westinghouse Elect. Corp. v. Shuler Bros., 590 So. 2d 986, 989 (Fla. 1991).3/

29. The Administrative Complaint here alleges that

    
    

    Ms. Gonzalez used live FCAT questions for a study session that she conducted between two FCAT testing sessions. Further, in paragraphs 9 through 14, the Administrative Complaint alleges that Ms. Gonzalez violated provisions found in section 1008.24, Florida Statutes, concerning FCAT testing, and violated provisions of Florida Administrative Code Rule 6A-10.042, concerning the administration of the FCAT. Based on these allegations, the Administrative Complaint charges Ms. Gonzalez with the following four counts:

    1. violating section 1012.795(1)(g), Florida Statutes, “in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board”;

       
       

    2. violating section 1012.795(1)(j), Florida Statutes, “in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules”;

       
       

    3. violating Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety”; and

       
       

    4. violating rule 6A-10.081(5)(a), “in that Respondent has failed to maintain honesty in all professional dealings.”

       
       

30. Because licensing statutes are penal in nature, the statutes are strictly construed in favor of the licensee. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st

    DCA 1990). Disciplinary statutes and rules must be construed in terms of their literal meaning, and words used by the legislature may not be expanded to broaden their application. Beckett v.

    Dep’t of Fin. Servs., 982 So. 2d 94, 99-100 (Fla. 1st DCA 2008).

    
    

31. Turning to the facts here, Petitioner failed to meet the clear and convincing standard in showing that Ms. Gonzalez engaged in the alleged misconduct.

32. At the onset, the undersigned recognizes that someone prepared the two pieces of paper that Mr. Noyes found in

Ms. Streeter’s classroom. Further, a review of the documents in comparison with the FCAT test shows that at least two live FCAT questions were copied onto the paper. Those facts, however, do not create in the undersigned’s mind “a firm belief or conviction, without hesitancy” that Ms. Gonzalez wrote the documents. As discussed earlier, Petitioner’s expert handwriting analysis was not persuasive because the expert did not have an opportunity to view the original document in order to make a valid comparison. This flaw was exposed in the credible testimony by Respondent’s expert, Mr. Dekraker. Moreover, Petitioner’s reliance on the students’ testimony for identifying

the paper found in Ms. Streeter’s classroom as the being the same documents used by Ms. Gonzalez was not persuasive because of the temporal lapse between the April 18, 2012, event and the testimony given on December 17, 2014. The undersigned did not find it credible that the witnesses could accurately identify the math problems after the lapse of time. In addition, the students’ written statements, which were offered into evidence, contained hearsay within hearsay without any basis for establishing a finding of fact. Finally, the undersigned notes that the facts showed that after Ms. Gonzalez was removed from the classroom, at least four other individuals had access to the classroom before Mr. Noyes found the documents on the ELMO: the two teachers and two paraprofessionals who proctored the FCAT examine the next day. In addition, Ms. Streeter also had an opportunity to author the document. There was no evidence excluding other individuals who had immediate access to the classroom, and no evidence excluding Ms. Streeter as the possible author. Petitioner failed to show by clear and convincing evidence that Ms. Gonzalez read or disclosed live FCAT questions or committed any violation, as alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices

Commission enter a Final Order finding Respondent not guilty of the charges in the Administrative Complaint.

DONE AND ENTERED this 24th day of March, 2015, in Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2015.

ENDNOTES

1/ All references to Florida Statutes shall be to the 2012 codification, unless otherwise specified in the Recommended Order.

2/ Petitioner’s Exhibits 1 through 3 are under seal because the exhibits contain confidential testing information that cannot be otherwise disclosed.

3/ As shown earlier, the Administrative Complaint alleges that Ms. Gonzalez violated section 1008.24, Florida Statutes, and Florida Administrative Code Rule 6A-10.042, concerning the administration of the FCAT. The Administrative Complaint, however, fails to tie the allegations to a specific disciplinary statute. Section 1008.24 provides that it is a first degree misdemeanor for a person to “knowingly and willfully violate test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education.” Obviously, a violation of section 1008.24 is a criminal offense, but it is not listed as a disciplinary offense. Notably, the Administrative Complaint, here, does not charge

Ms. Gonzalez with violating section 1012.795(1)(k), Florida Statutes, which would have provided a basis for tying the statutory violation to the disciplinary statutes. Petitioner’s failure to tie the charge that a teacher who violated section 1008.24, Florida Statutes, by violating FCAT testing protocols to a statutory provision authorizing discipline was specifically addressed by Judge Lisa Shearer Nelson in Stewart v. Casady, Case No. 14-1364PL (DOAH July 28, 2014), and Petitioner would do well to consider the opinion when drafting future Administrative Complaints.

Similarly, Petitioner allegations in paragraphs 12 through 14 of the Administrative Complaint that Ms. Gonzalez violated rule 6A- 10.042(1), (1)(b), and (1)(f), with respect to test administration, suffer the same defect as set out concerning the alleged violations of section 1008.24. Subsection (4) of rule 6A-10.042 provides that “[v]iolations of test security provisions shall be subject to penalties provided in statute and State Board Rules.” Nothing in rule 6A-10.042 indicates that it is an independent basis for disciplinary action. Again, Petitioner has not specifically pled any statute or rule provision authorizing discipline for violation of this provision, such as section 1012.795(1)(k), Florida Statutes. See Stewart v. Casady, supra.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education

325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed)

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012 (eServed)

Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 14-003907PL

Orders for Case No: 14-003907PL