Findings Of Fact The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input. As a result, NCEES became aware of some typographical and other errors contained in that document. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination. In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause. DONE and ENTERED this 14th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein. COPIES FURNISHED: Wellington H. Meffert, II Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorian Kenneth Zinck, pro se 521 Beech Road West Palm Beach, Florida 33409 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether just cause exists for Petitioner, Hernando County School Board (the “School Board” or “Board”), to terminate the employment of Respondent, Renee Koulouris.1/
Findings Of Fact The School Board is responsible for hiring, supervising, and firing all employees within the Hernando County School System. This responsibility includes taking administrative action when an employee violates any rule or policy of the Board. Mrs. Koulouris was hired by the School Board approximately 15 years ago as a fourth grade teacher. At the beginning of the 2016-2017 school year, she was transferred to a fifth grade class in order to provide assistance to a struggling team. Her principal, Mr. Piesik, described Mrs. Koulouris as a very strong teacher with very high standards. Mr. Piesik said Mrs. Koulouris ran her classroom like “a well-oiled machine.” Mrs. Koulouris has had no disciplinary actions prior to the incident at issue in the present proceeding. One of the duties of a fifth grade teacher is to administer the Florida Standards Assessment (“FSA”) tests in four different subject areas: Language Arts; Math; Writing; and Science. The tests are an integral part of a student’s education and are used to determine placement in the next grade level, i.e., which classes the student will be eligible for upon advancement to middle school. It is imperative that FSA tests are administered correctly and securely. Extra measures are taken to ensure that all students take the tests independently, without assistance from anyone. Protocols are put in place to monitor students who are taking the tests. Mrs. Koulouris attended all of the required training prior to administering the tests. She also signed the Test Administration and Security Agreement, and the Test Administrator Prohibited Activities Agreement, acknowledging her understanding of the test protocols. Some of the FSA tests are administered in the classroom; some are done in the computer lab. In either case, the teacher administering the tests must diligently follow all rules and procedures. Fairness and honesty is paramount. The Board recommends the presence of a proctor in addition to the teacher when tests are given to certain sized classes. No proctor was present when the tests at issue herein were administered. Mrs. Koulouris is accused of inappropriately assisting students during the FSA tests she administered in the 2016-2017 school year. Those tests were taken over a period of three months: The writing test was administered on February 20, 2017; the English test was given on April 19 and 22, 2017; the Science tests were given on May 1 and 2, 2017; and the Math test was done on May 5 and 9, 2017. During this same time frame, Mrs. Koulouris’ classes took a number of practice FSA tests (as well as regular tests in various subjects). Mrs. Koulouris is alleged to have assisted students by signaling them during the FSA tests to indicate that their answer to a particular question might be wrong. This was allegedly done by tapping a student or making a particular face at them. Any student so notified would then be expected to change their answer. It is also alleged that Mrs. Koulouris would stand behind students for long periods of time, tapping or nudging them if they wrote or entered an incorrect answer. If the allegations are true, Mrs. Koulouris would be in violation of the test protocols and policies. Mrs. Koulouris adamantly and credibly denied any such behavior. She describes her “assistance” to the students as follows: She explains the test-taking process. She stresses the need to concentrate and stay on track. She tells them that if they do not know an answer, to move on and come back to that question later. She reminds them to be thorough and to take their time, thinking about each question carefully. She instructs the students to go back over their work when they finish, time allowing. In order not to disturb the students while they are testing, she prefers to remain at her desk rather than walking around the room. However, she does move around the room on rare occasions, or when she sees a student who is off task, e.g., sleeping or gazing out the window. She would sometimes tap a student’s desk to get them back on track or, in some instances, to wake them up. The testimony of the two students who appeared at final hearing in this matter supports Mrs. Koulouris’ description of her normal process for administering an FSA test. In the weeks leading up to the FSA tests, Mrs. Koulouris would give a number of practice exams so that the students would become accustomed to the test format. She does help students during the practice tests, but generally for the purpose of keeping them focused, not to correct their answers. She uses facial expressions and eye contact to provide that assistance. Mrs. Koulouris’ demeanor at final hearing gave credence to her testimony. She seemed very sincere concerning her actions and her entire testimony was credible. The allegations concerning Mrs. Koulouris’ actions during the 2016-2017 FSA testing cycle came about towards the end of that school year. As she described it: Fifth grade “graduation” occurred on May 18, 2017, a Thursday, at which time awards were handed out to students based on their performance. The following day, Friday, Mrs. Koulouris was in a multipurpose room tending children who would be picked up by their parents. Other adults were present in the room. Mr. F., a fellow Suncoast teacher whose son was a student in Mrs. Koulouris’ class, approached Mrs. Koulouris. Mr. F. angrily asked why his son had not received a “gold award” at the graduation ceremony held the day before. Mrs. Koulouris explained that the child had not achieved the necessary grade point average to receive a gold award. Mr. F. told her he was very “pissed off” and that if he found out that Mrs. Koulouris did something “on purpose” to hurt his son, he would be extremely angry at her. Mrs. Koulouris felt very intimidated by Mr. F.’s demeanor and his language. She was also very surprised, as she thought she had a good relationship with the student and had been fair with him. Mrs. Koulouris reported the incident with Mr. F. to her team leader and then to the principal, Mr. Piesik. Mr. Piesik reprimanded Mr. F. for his behavior and told Mr. F. not to have any further contact with Mrs. Koulouris unless an administrator was present. On the following Monday, Mr. F. went to Mr. Piesik and reported that-–according to statements made by Mr. F.’s son over the weekend-–Mrs. Koulouris had improperly assisted her students during the FSA tests. The timing of Mr. F.’s allegation against Mrs. Koulouris is extremely suspect. The principal immediately undertook an investigation to determine whether the allegation had any merit. He prepared a list of questions to be posed to Mrs. Koulouris’ students. Mr. Piesik went to the classroom on May 23, 2017, and talked individually with several randomly selected students, asking them the questions he had prepared in advance. (Mr. F.’s son was intentionally excluded from the group of students to be questioned.) Some of the questions were very innocuous, i.e., Mr. Piesik asked about the school year and about the FSA testing in general. He then pointedly asked, “During the FSA testing, did your teacher do anything to help students get the right answers?” A few of the students apparently indicated that Mrs. Koulouris had said something about making a face or nudging them if they were off task, gave a wrong answer, or were making mistakes. Others said that no such comments were made by Mrs. Koulouris. Mr. Piesik compiled the students’ answers to his queries and contacted two school district administrators: Matthew Goldrick, supervisor for professional standards; and Linda Pierce, supervisor of assessment and accountability. The administrators suggested Mr. Piesik continue his investigation of the matter. Next, Mr. Piesik drafted a form containing three statements and one question. The singular question on the form was, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” He placed “Yes” and “No” lines beneath the question to record the students’ responses. The three statements drafted for inclusion on the form were: (1) “Yes I knew Mrs. Koulouris was helping students on the test.” (2) “Mrs. Koulouris did NOT help me on the test.” (3) “Mrs. Koulouris helped me on the test by giving a tap or a look so I knew I needed to change my answers.” Beneath the question and statements were these words: “Please indicate which test she helped you on. Math – Reading - Science.” On the following day, May 24, 2017, Mr. Piesik interviewed all 22 of the students who had undergone FSA testing with Mrs. Koulouris, including Mr. F.’s son. This time, the principal used his newly created form containing the one question and three statements. If the student agreed with a statement when it was read to him or her, Mr. Piesik would place a check next to the statement. He would circle either yes or no after asking the question, depending on the student’s answer. The principal testified that “all 22 students” answered “Yes” to the question of whether Mrs. Koulouris said she would tap them if their answer was wrong. Of those students, 12 said Mrs. Koulouris was “helping students” during the test, seven indicated they had been helped, and 13 said Mrs. Koulouris did not help them. However, some of the same students who said their teacher was helping students when asked on May 24, 2017, had said just the opposite on May 23, 2017. The discrepancy in their answers leads to the conclusion that the questions, as posed, were either unclear to the students or were unintentionally leading in nature. By way of example, student C.M.F., who had presumably answered “Yes” to the question posed on May 24, 2014, as to whether Mrs. Koulouris had helped students during the FSA testing (since all students had responded that way), said in her deposition that she misunderstood the question Mr. Piesik had asked her, that it was “all a misunderstanding.” She maturely opined that, “So, it is very commonly known that people cannot understand something because it was worded a way that they thought it would mean something else. And I thought what the principal, Mr. Piesik, said, he had asked me if she had helped with the – if Mrs. Koulouris had helped with the test, but he didn’t say the specific FSA so I thought he was talking about tests in general. And sometimes she would explain, like rephrase stuff and explain it to us for the normal tests, but never for the FSA.” This sort of equivocation renders the students’ statements virtually uncredible. Two of the students testified at final hearing. Their testimony was insufficient to adequately corroborate the hearsay evidence found in the written forms. Student A.S. said at final hearing that “before tests” Mrs. Koulouris would tell us she would tap students on the shoulder if they were “way off track” and you “needed to get back in the game.” However, she did not remember any student being touched during the FSA tests. A.S.’s testimony was too equivocal to establish whether or not Mrs. Koulouris had assisted any students during the FSA tests. It is notable that the School Board did not cite to any of A.S.’s testimony from final hearing, but instead relied upon the less certain and unclear statements made by students in their depositions, which are both hearsay in nature and less credible than live testimony. Student A.W.’s memory of the events was even more clouded. She believes she remembers one student messing up the order of his responses (i.e., answering up and down rather than side to side on the answer sheet) and Mrs. Koulouris helped him get realigned, but does not believe Mrs. Koulouris otherwise assisted anyone during the tests. When confronted with her response to the principal’s form questions, A.W. simply could not remember being asked the questions or how she responded. On May 23, 2017, Mr. Piesik had asked her the question from his form, “During the FSA testing, did your teacher do anything to help students get the right answers?” She responded, “No.” On May 24, 2017, she answered “Yes” to the question, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” At final hearing, A.W. answered “No” to the question, “Did you see or hear Mrs. Koulouris make the statement, ‘If I look at you funny or strange or if I give you a tap on the shoulder, that means you need to change your answers’?” Again, the testimony was inconsistent and was not sufficient support to corroborate or affirm the information found in the forms.2/ The truth of whether Mrs. Koulouris helped students on the FSA tests cannot be established by Petitioner’s evidence, the supposed student responses as tallied by Mr. Piesik, due to their hearsay nature and various discrepancies. When considering how the allegation against Mrs. Koulouris first arose, i.e., after her confrontation with her fellow teacher, Mr. F., and the equivocal testimony of the students, there is insufficient basis to support the allegations against her. Findings of Ultimate Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Accordingly, whether conduct alleged in an administrative complaint violates the laws, rules and policies set forth in the charging document is a factual, not legal, determination. The Board has not met its burden in this case of proving that Mrs. Koulouris engaged in the conduct for which she was charged. Although Mr. Piesik testified as to his conclusion based on interviews with students, that conclusion was not corroborated by the students’ testimony. The double hearsay nature of the students’ responses to Mr. Piesik’s questions, coupled with the vague recollections of students actually testifying, is wholly insufficient to satisfy the Board’s burden of proof. It is clear Mrs. Koulouris gave her students instructions about how to take the FSA tests, administered practice test at which the strict FSA rules were not applicable, monitored the tests and redirected students who were sleeping or otherwise distracted, and sometimes walked around the classroom. But the evidence is woefully short of proving wrongdoing or improper assistance to students. Notably, the deposition transcripts offered into evidence jointly by the parties were not helpful to the finder of fact. The students’ responses to questions were vague and disjointed. Each of the parties interpreted the students’ statements differently, each seeming to think the statements supported their position in this matter. Besides the obvious hearsay nature of the evidence, the statements were nebulous, and lacking clarity or persuasiveness. The students contradicted each other, some could not even remember where they were sitting during testing, and their memories seemed, at best, confused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Hernando County School Board, finding no cause to terminate the employment of Respondent, Renee Koulouris, as there is insufficient evidence that she violated statutes, rules or policies regarding the administration of FSA tests. DONE AND ENTERED this 3rd day of April, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of April, 2018.
The Issue The issue to be determined is whether Respondent, Tunisia Hairston, violated the provisions of section 1012.795(1)(d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent, Tunisia Hairston, holds Florida Educator’s Certificate 886347, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2017. At all times relevant to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a fifth-grade teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her mother, Annette Jones Walker, taught fifth grade in the classroom adjacent to hers. Respondent is in her thirteenth year of teaching and currently teaches first grade at the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator, Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified, that removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in Gadsden County with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools state-wide: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, 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. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Eight students from Ms. Hairston’s 2011 fifth-grade class testified at hearing. Of those 8 students, two testified that they had received assistance from Ms. Hairston during the test. T.W. was a male student in Ms. Hairston’s class. He testified that “in a certain period of time, she would point out answers for me.” He testified that she did not say anything to him, but “I just got the meaning that she was telling me to check it over again.” He also stated that she told the whole class to go over their tests again at the end of the test. L.T. was a female student in Ms. Hairston’s class. She referred to Mr. Pitts or Ms. Dixon being in the room. She testified that after Ms. Dixon or Mr. Pitts left the room, Ms. Hairston would walk around and “point out questions that maybe we would get wrong.” She testified that Mr. Pitts or Ms. Dixon came in 3-4 times. L.T. also stated that while Ms. Hairston told the class at the beginning of the test they could go back and recheck their answers when they were finished, she did not make a similar statement at the end of the test. On the other hand, students K.M., A.F., R.A., M.C., D.Y., and A.C. all testified that they did not remember Ms. Hairston giving any type of hints during the science FCAT, and that she did not point to answers on the tests. None of the students, including T.W. and L.T., had incredibly clear memories of the test, which is understandable given that they took the test over three years prior to the hearing. To the extent that these six students remembered Ms. Hairston saying anything, they remember her telling them to go back and read the questions over, in terms of the whole test. Tamika Battles was the proctor assigned to Ms. Hairston’s room. Although there was some dispute about how many days she was present during the science part of the FCAT, it is found that she was present for one of the two testing sessions.5/ Ms. Battles does not recall Ms. Hairston saying anything out of the ordinary, but rather simply walked around telling students to stay on task, and making general statements about test taking. She did not ever see her point to a particular student’s test. Ms. Battles had been trained in testing protocols, and believed that they were followed. Ms. Hairston also denied coaching any of the students or pointing out incorrect answers. She acknowledged pointing toward test booklets on occasion, not to point to a specific answer but to remind a student to focus or stay on task. Her testimony was credible. After careful review of the evidence, it is found that Ms. Hairston did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. T.W. was in Ms. Hairston’s class for the second time, having failed fifth grade the year before. He testified that Ms. Hairston did not say anything to him, but rather that he understood her to mean something that she never verbalized. While L.T. testified that Ms. Hairston would point to a question and say, “check your answers again,” she tied these actions to times when Ms. Dixon or Mr. Pitts came in the room. Neither Mr. Pitts nor Ms. Dixon signed the security log for Ms. Hairston’s class for either day of the science examination. Ms. Dixon signed in for one testing session on April 13, but not for either day of science testing, and Mr. Pitts is not signed in for any session at all. Credible testimony was also presented to indicate that while perhaps Ms. Dixon was present at some time during testing (and not necessarily science), Mr. Pitts was not. In addition, L.T.’s written statement focuses more on math questions than science questions. It is entirely possible, given the vague nature of her answers, that she was confusing the science FCAT with some other testing experience. In any event, T.W. and L.T.’s testimony, taken together or apart, does not rise to the level of credible, clear and convincing evidence of providing inappropriate assistance to students during the FCAT. Further, the type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Hairston to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that testimony is uniform that she walked around the room, not that she stopped for significant periods at any student’s desk. Ms. Hairston’s explanation that she commonly points in order to gain a child’s attention and get them to focus is reasonable. Several years of Respondent’s performance evaluations were submitted. Only those that were complete were considered. Those evaluations indicate that Ms. Hairston consistently has achieved effective, highly effective, or outstanding evaluations during her tenure at Greensboro Elementary School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 6th day of February, 2015.
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
The Issue The first issue to be determined is whether Respondent, Annette Jones Walker, violated the provisions of section 1012.795(1)(a), (d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a), and (5)(a), (g), and (h). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate number 948631, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2019. At all times pertinent to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her daughter, Tunisia Hairston, taught fifth grade in the classroom adjacent to hers. Respondent worked as a substitute teacher for approximately 14 years and as a full time teacher for 10 years. She currently teaches second grade in the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified that, removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in his district with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, 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. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Five students from Ms. Walker’s class testified at hearing with respect to the 2011 science FCAT examination. Of those five, one student’s testimony could be construed as supporting the allegations in the Administrative Complaint. D.M. testified that Ms. Walker just walked around the classroom. She “wasn’t giving nobody answers. . . . She just tell you that maybe you should redo that one.” She testified that Ms. Walker told her to “relook” at a question, but also testified that she did not think Ms. Walker actually said anything, but rather pointed to the test booklet. D.M. admitted that her memory was not very clear, stating, “it was so long ago.” Students S.B., J.J., A.M., and E.S. also testified. S.B. said she “kind of” remembered the test, but that nothing about the test really stood out. She believed that in response to a question she had about the test, Ms. Walker may have given a general answer, such as, check over the page again. She did not remember Ms. Walker giving any hints to the class. S.B.’s testimony is vague and general at best, and does not support a finding of inappropriate assistance. J.J. testified that she was focused on the test, and was not paying attention to what others were doing. She stated that Ms. Walker did not go around the room giving hints to students during the test, and she did not recall Ms. Walker putting her finger on anyone’s test in a “hinting manner.” Similarly, A.M. testified that she did not remember Ms. Walker going around giving hints about how students should answer questions. Ms. Walker did not give any hints to A.M. and A.M. did not hear Ms. Walker give any hints to anyone else. A.M. stated that it was really quiet in the room, and while it is hard to remember that far back, if a teacher was giving hints on the FCAT, she would remember it. E.S. also testified that it was pretty quiet during the FCAT. She was not paying attention, but did not think that Ms. Walker went around the room giving hints about answers. She admitted that she did not remember much about the test, and could not separate out what happened in the science part of the test as opposed to the rest of the FCAT, but thinks it would have stood out if something inappropriate happened. She was focused on the test but aware of what was going on in the classroom, and Ms. Walker never pointed to anything on her test booklet, and thinks she would have heard something if Ms. Walker said anything inappropriate. Valorie Sanders was the proctor assigned to Ms. Walker’s class.5/ She does not recall exactly what Ms. Walker said during the test, but believed it was for the students to focus. She did not see Ms. Walker do anything that would violate testing protocols, for which she had received training; did not recall Ms. Walker giving hints to any students; did not recall any instance where Ms. Walker implied a student should change an answer from wrong to right; and did not see Ms. Walker point to an answer on a student’s test. Finally, Ms. Walker denied that she gave any inappropriate assistance to students during the test. She stated that she made statements such as “pay attention,” “focus,” “go back over your tests if you finish early,” and “make sure you have an answer for every question,” but did not make any comments about specific questions on the test. Ms. Walker testified that she remained seated during most of the testing because it is painful for her to walk. She did walk around once when she saw Mr. Chandler in Ms. Hairston’s class next to hers, and if she saw students staring off into space she would touch the student’s desk to get them back on task, but did not point to specific questions. Ms. Walker testified that she had been giving tests to students for 20 years and had never been accused of any impropriety. She, like her daughter, welcomed the decision not to proctor any more FCAT tests. After careful review of the evidence presented, it is found that Ms. Walker did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. The type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Walker to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that the testimony is undisputed that Ms. Walker had a difficult time walking6/ and only walked around the one time she saw Mr. Chandler. The explanation that she would point to the desk in order to gain a child’s attention and get them to focus is reasonable. It is not clear from the record at hearing when the Department of Education began or ended the investigation with respect to Respondent’s license. The Administrative Complaint was signed by the Commissioner on September 18, 2013. Ms. Walker testified that she did not remember receiving the Administrative Complaint, although she knew that there was an Administrative Complaint regarding the FCAT. She received a lot of paperwork during this time period, but did not read it all. She hired Mr. Caldwell to represent her during the investigative stage. On October 3, 2013, an Election of Rights form was filed on Ms. Walker’s behalf requesting time to negotiate a settlement with the Office of Professional Practices, and if an agreement was not reached during that time, electing a formal hearing. The Election of Rights form is signed by counsel, and not by Ms. Walker. On March 13, 2014, Ms. Walker completed an application for renewal form for renewal of her educator’s certificate. The form has a variety of questions, all of which Ms. Walker answered “no.” The questions listed included the following: Have you ever been convicted of a criminal offense? Have you ever been found guilty of a criminal offense? * * * Are there currently charges pending against you for any criminal offense? Have you ever had a professional license or certificate sanctioned or disciplined in this state or any other state? * * * Do you have any current disciplinary action pending in this state or any other state against a professional license or certificate or against an application for a professional license or certificate? Following the questions was a box that stated the following: Florida Law requires you to provide a YES or NO answer to the questions within the Legal Disclosure section of your application, even if previously submitted. If you answered YES to any question in the Legal Disclosure section on the application form, you must provide detailed complete information for each affirmative response within the corresponding section in this Legal Disclosure Supplement. * * * Having a criminal history or administrative sanction against a professional license does not automatically disqualify a person from receiving a Florida Educator’s Certificate, but such incidents will prompt a review by the Office of Professional Practices Services. For the section labeled “Professional License or Certificate Sanction(s),” the form required the applicant to identify the state, year, and issuing agency, as well as the license or certificate affected and the “Sanction and Reason.” Above the signature line, the form states: “I do hereby affirm by my signature that all information provided in this application is true, correct, and complete.” At the time Ms. Walker filled out the application, no discipline against her certificate had been imposed. There was, however, a proceeding in which Petitioner sought to impose discipline against her certificate. However, at that time, there would have been no year, sanction, or reason for her to list in the disclosure supplement. Applications for renewal are completed at the school district and forwarded to the Department of Education for processing. Ms. Walker testified that she went to the district office at the end of the day and was in a hurry when she filled out the application. At first she skipped the question about “current disciplinary action pending” because she did not understand the question. She bubbled it “no” because she was in a hurry. Veronica White of the Department of Education Bureau of Educator Certification explained the process for renewing educator certificates. She has been employed by the bureau since 1998. Ms. White was asked about the meaning of the term “pending disciplinary action” on the application form: Q. Ms. White, you referred to a question, referred to the application, the renew application of Ms. Walker. Let me ask you about a question on that application. When the Education Practices Commission, I will call it EPC. When EPC has ordered discipline, but it has not yet gone into effect; is that pending discipline? A. You are asking me questions that I can’t answer. I don’t work in Professional Practices Services. Q. Okay. A. I can only answer from the certification side. I am sorry. Q. Okay. Can I ask you about the meaning of pending discipline on the application form; is that something you feel you have expertise in, the meaning of pending discipline? A. No. Q. You can’t? Okay. All right. So you do not know the meaning of pending discipline on that application form? A. No, I really don’t. At the time Ms. Walker completed her renewal application, there was no final order imposing discipline against her license. There were disciplinary proceedings seeking to impose discipline that had not yet been resolved. It was not unreasonable, given the structure of the application, for her to answer “no” to the question as phrased, especially in light of the information sought in the legal disclosure supplement. She did not seek to obtain the renewal of her teaching certificate by fraudulent means. Some of Ms. Walker’s evaluations were admitted into evidence. A review of Respondent’s Exhibit 3 reveals that there are multiple copies of some of the evaluations, and the evaluation for 2010-2011 lacks a signature page. With respect to those evaluations that are complete, Ms. Walker was rated “outstanding” and “effective.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint in its entirety. DONE AND ENTERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 6th day of February, 2015.
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S 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 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 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 224E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent, Angel Casady (Ms. Casady or Respondent), violated section 1012.795(1)(d) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint, and if so, what penalty shall be imposed?
Findings Of Fact Respondent is a teacher licensed by the Florida Department of Education, and has been issued Florida Educator’s Certificate 1204471. The certificate covers the area of elementary education, and is valid through June 30, 2015. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an associate teacher at Breakfast Pointe Academy in Panama City, Florida. Breakfast Pointe is a K-8 school in the Bay County School District. Respondent worked in a fourth-grade “overflow” classroom with lead teacher, Joy Chonko. An overflow classroom is a classroom that has more than 25 students because the actual number of enrolled students exceeded the projection for the grade level. In that instance, the lead teacher is assigned an associate teacher to assist her. Ms. Chonko’s classroom had between 30 and 37 students. Ms. Chonko is in the fourth year of her teaching career. She worked for two years in Montana before moving to the Panama City area and starting at Breakfast Pointe. The events giving rise to this case occurred during her first year at Breakfast Pointe. Ms. Chonko is generally regarded as a good teacher. According to her principal, Denise Kelley, her students and their parents love her, and she is always going the “extra mile” to help them, both in and out of the classroom. She is very involved with both students and other teachers on her grade level, and those teachers wanted her to return so that they could continue working as a team. When asked if she recommended her return, Ms. Kelley’s response was “absolutely.” Ms. Chonko was assigned to an overflow class a few weeks into the school year, and an associate teacher was assigned to help her. However, in December 2012, that teacher was let go because she was not performing the duties assigned to her. Respondent previously worked at Northside Elementary School and was let go from that assignment, and then placed at Breakfast Pointe in Ms. Chonko’s class. Ms. Chonko described the relationship between the two women as cooperative, like team teachers.1/ She did not think of Ms. Casady as a subordinate, although it is clear from Ms. Casady’s job description that she was to work under the direction of one or more lead teachers. Further, it is clear from the assignments in the classroom that Ms. Chonko shouldered the bulk of the instruction responsibilities. For at least part of the spring semester, Ms. Chonko taught language arts, social studies, and science, with Ms. Casady assisting her, while Ms. Casady taught math with Ms. Chonko’s assistance. On March 5, 2013, there was a meeting with Ms. Kelley, Ms. Chonko, Ms. Casady, and Leah Margulies, a classroom coach, to address Ms. Casady’s role in the classroom. The plan at that time was for Ms. Chonko to continue teaching the language arts, social studies, and science classes. Ms. Casady was to observe, with Ms. Margulies, another fourth-grade teacher at Breakfast Pointe teaching math; another teacher off-campus teaching math; and Ms. Chonko teaching math. Then Ms. Chonko would teach math on Mondays, Wednesdays, and Fridays, while Ms. Casady taught math on Tuesdays and Thursdays.2/ All of these observations were planned to help Ms. Casady improve her teaching skills. In April 2013, both Ms. Chonko and Ms. Casady were involved in the administration of the FCAT. Both teachers participated in the training for those who administered the exam, and were given a testing administration manual. Included in the manual are the Prohibited Activities Agreement and the Test Security Agreement, which teachers are to sign and date once training is completed. The Test Administration and Security Agreement includes the following text: Examples of prohibited activities are listed below: Reading or reviewing the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. Inappropriate actions by district or school personnel will result in further investigation and possible loss of teacher certification. I, , have received adequate training regarding the administration of the Spring 2013 Florida Comprehensive Assessment Test (FCAT/ FCAT 2.0) and have read the Florida Test Security Statute and State Board of Education Rule in Appendix B and the information and instructions provided in all applicable sections of the Spring 2013 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the FCAT/FCAT 2.0 according to these procedures. Further, 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. Respondent signed the Security Agreement on April 9, 2013. Respondent also signed the Test Administrator Prohibited Activities Agreement on April 9, 2013. This document provided in pertinent part: It is important for you, as a test administrator of a statewide assessment, to know that the following activities are prohibited. Engaging in such activities may result in an investigation, loss of teaching certification, and/or prosecution for violation of the law. Please read the following list of prohibited activities and sign your name on the signature line at the bottom of this page indicating that you understand these actions and their consequences: * * * I understand that during the test I may not: * * * Give students more time than is allotted for the session (unless the student has an extended time accommodation) * * * Instruct students to test in a session other than the one designated for that day/allotted testing time (going on to Session 2 during Session 1, reviewing work in Session 1 during Session 2) Coach students during testing regarding test-taking strategies * * * I understand that after testing I may not: * * * Discuss the content of the test with anyone, including students or other school personnel The FCAT is a very structured test. Administrators are given the actual script to use as instructions for the test. The Script for Administering Grade 4 Reading, Session 2, includes the following directions to be given orally to students: You may not change any answers from Session 1. Remove all materials from your desk except a No. 2 pencil. You’ll have 70 minutes to complete Session 2 of the Reading test. Open your test and answer book to Session 2 on page 33. The session number is at the top of each page. You may work only in Session 2. Remember the following: * * * When you have finished, check through your answers in this session only to make sure you have filled in only one bubble for each question. Try to answer every question. If you aren’t sure how to answer a question, skip it and keep going. After you have answered all the other questions, go back and answer any questions you skipped in this session only. When you come to the STOP sign, you have finished Session 2. If you complete Session 2 before time is called, go back and check your work. Do not go back and work in Session 1. Please remember that during this test session you MUST NOT work in Session 1 talk to other students or make any disturbance look at another student’s test and answer book allow another student to look at your test and answer book ask for help answering any test questions give help to another student in answering test questions have notes or scratch paper have any electronic or recording devices in your possession at any time, including breaks, even if you do not use them fail to follow any other instructions given After the test you may not discuss the test items with anyone. You have 10 minutes to finish Session 2. Remember, do not go back to Session 1. Administration of the FCAT began on Monday, April 15, 2013. Although Ms. Chonko and Ms. Casady would see each other and talk in the mornings each day before the testing began, they had separate groups of children for testing, and were not testing in the same classroom. N.C. was a fourth-grade student in Ms. Chonko’s classroom. Ms. Chonko described him as a very respectful, polite, hard-working student who presented no discipline problems. She could not remember specific grades but thought he was a good student. N.C. described his grades as good, although when asked for more specifics, he said he got As, Bs, Cs, and maybe a couple of Ds.3/ N.C. was in the group of students to whom Ms. Chonko administered the FCAT. Session 1 of the reading portion of the FCAT was administered Monday, April 15, 2013. After testing for the day was over, N.C. told Ms. Chonko that he did not finish all of the questions in Session 1, and asked if he would be able to finish the session. Ms. Chonko told him he would not be able to go back into Session 1, that Monday was for Session 1, and Tuesday they would be doing Session 2. Ms. Chonko was not overly concerned that N.C. did not finish, because she recognized that with a timed test not all children are going to finish.4/ Tuesday morning, Ms. Chonko mentioned her conversation with N.C. to Ms. Casady. Ms. Casady told Ms. Chonko she should tell N.C. to go back and finish Session 1. Ms. Chonko reminded Ms. Casady that it was against the rules to do so. Ms. Chonko did not see Ms. Casady speak to N.C. after their conversation Tuesday morning, and she thought the issue was over. However, on Wednesday, April 17, Ms. Casady told her that she had encouraged N.C. to go back and finish the questions he did not complete on Monday. The following day, Ms. Casady told her that N.C. had in fact gone back and finished Session 1. Ms. Chonko believed that there was a violation of the testing protocol, and she reported it to her principal, Ms. Kelley, on Thursday afternoon. According to Ms. Kelley, Ms. Chonko appeared hesitant, but came to her office on Thursday, saying, “I think I need to tell you something.” Ms. Chonko told Ms. Kelley about N.C. going back into Session 1. Ms. Kelley asked Ms. Chonko to write a statement regarding the incident, which she did. She also called Camilla Hudson, the District’s assessment coordinator, and Sharon Michalik, the executive director for human resources for the District. After direction from Ms. Hudson, Ms. Kelley and the assistant principal, Ms. Weatherly, interviewed N.C. and asked him to write a statement as well. A Testing Incident Report was prepared by Ms. Kelley and Ms. Bailey, the school’s testing coordinator, and N.C.’s FCAT reading score was invalidated. N.C. was interviewed by Ms. Kelley and Ms. Weatherly on Friday, April 19, 2013. N.C. confirmed that he told Ms. Chonko that he did not finish Session 1 and that she told him he could not work in Session 1 anymore. He told Ms. Casady on Tuesday morning that he had not finished the first session, and she told him, “if you are at one minute, you should always mark them B or C.” She also told him if you have enough time after session 2, you should go back and mark B or C. N.C. told Ms. Kelley and Ms. Weatherly that after he finished Session 2, he went back and marked the unanswered questions in Session 1 with the answer “B.” The testing coordinator confirmed that the last six questions of Session 1 were marked B. N.C.’s statement was prepared in Ms. Kelley’s office. He identified it at hearing and testified that the contents of the statement were true. N.C. also testified that he liked both Ms. Chonko and Ms. Casady and that Ms. Casady had never written him up for disciplinary problems. N.C.’s statement reads as follows: I didn’t finish session 1 reading I had 6 questions left Mrs. Chonko told me to work in session 2 I told Mrs. Cassady that I didn’t finsh she said if I’m not finshed and thairs 1 minute left I should mark B or C. She also said if I had a enough time left after session 2 I should go back in session 1 and mark the questions that I didn’t finish B or C. And I did mark them B.5/ There was no problem with the group of students for whom Ms. Casady administered the FCAT. Ms. Michalik came to Breakfast Pointe on Friday, April 19, 2013. She interviewed Ms. Chonko, and then, with Ms. Kelley and Ms. Weatherly present, interviewed Ms. Casady. The meeting was lengthy. Its purpose was to inform Ms. Casady of the investigation and give her an opportunity to present her side of the story. At the beginning of the meeting, Ms. Casady did not seem all that concerned, but as the meeting progressed and she realized that others viewed the matter more seriously and that there could be repercussions for what happened, she became quite upset. She denied that the incident occurred and said that Ms. Chonko was a “nervous wreck” about students not finishing the test, and that the two of them were trying to brainstorm ways the boys could finish. According to Ms. Michalik, Ms. Casady said that she thought it would be fine if the boys went back into Session 1 as long as no one knew. Ms. Casady also expressed frustration over the incident, stating that she could not understand why it was “such a big deal over two FCAT questions and a fourth grader.” When Ms. Michalik asked her why she would not have known about the prohibition on going back, since it is in the testing manual, she said that while she did attend the training, she did not study the manual’s script for day two until she read it on the second day of testing. During the meeting, Respondent also claimed that it was N.C.’s father who told him to go back into Session 1 on the second day of testing. While N.C.’s father told him that if he was not going to be able to finish a session, to answer B or C for remaining questions, he never told him to go back and finish during another session of the test, and never told anyone that he had given such advice. It was clear after the meeting that Ms. Casady was very upset with Ms. Chonko, and Ms. Kelley and Ms. Michalik decided it would not be best for the two women to be in the same room with the students.6/ Ms. Michalik elected to transfer Ms. Casady to another school. There was an unanticipated opening as a media specialist at another school due to the death of an employee, so she was transferred there for the rest of the school year. She was not recommended for return the following year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Education Practices Commission enter a Final Order finding Respondent guilty of Counts two and three of the Administrative Complaint. It is further recommended that the Commission suspend Respondent’s educator’s certificate for one year; impose an administrative fine of $500; and that upon reinstatement, Respondent serve three years of probation, subject to terms and conditions determined by the Commission. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of July, 2014.
The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 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 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue 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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. 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. 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 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; 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. 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. 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." 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 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. 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. 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.
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 20th 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 20th day of April, 2001.
