The Issue The issue is whether Respondent committed the acts alleged in the Amended Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent holds, and at all relevant times, held a valid Florida Educator’s Certificate. Respondent is and, at all relevant times, was a fifth- grade teacher at Avon Park Elementary School in Highlands County. Respondent has been an elementary school teacher for 19 years. She taught fourth and fifth grade at Zolfo Springs Elementary School in Hardee County from 1986 through the end of the 2000-01 school year. She started teaching at Avon Park Elementary School at the beginning of the 2001-02 school year. Respondent is currently on a year-to-year contract. Her contract was renewed for the 2003-04 and 2004-05 school years notwithstanding the allegations in this case, which occurred during the 2002-03 school year. Respondent has not had any disciplinary problems over the course of her career, and other than the allegations in this case, she has never been accused of any unethical or unprofessional conduct. Respondent has always received good annual performance evaluations. Respondent’s most recent performance evaluations - - for the 2002-03 and 2003-04 school years –- state that she “meets or exceeds expectations” in all categories, including the category that assesses whether Respondent “act[s] in a professional and ethical manner and adhere[s] to the Code and Principles of Professional Conduct.” Consistent with the information in Respondent’s annual performance evaluations, the principal at Avon Park Elementary School, who is Respondent’s current supervisor, testified that Respondent “does a good job” as a teacher and that she values Respondent quite highly as a teacher; the former principal at Zolfo Springs Elementary School, who was Respondent’s supervisor for approximately five of the years that Respondent taught at that school, testified that Respondent’s reputation for complying with the code of ethics is “excellent” and that Respondent always “monitored and cherished” her professionalism; one of Respondent’s co-workers at Avon Park Elementary School testified that Respondent is “a very effective and professional teacher”; and the students who testified at the hearing characterized Respondent as a good teacher. Respondent has administered the FCAT to her students since the test’s inception in the 1990s, and as a result, she is very familiar with what teachers can and cannot do when administering the test. Respondent and other teachers at Avon Park Elementary School received training on the administration of the 2003 FCAT, and as part of the training, Respondent received a copy of the Test Administration Manual for the 2003 FCAT. The Test Administration Manual is published by the state Department of Education (Department) and is distributed to teachers by the testing coordinators at each school. The school-level testing coordinators report to a testing coordinator at the school district level, who is ultimately responsible for the administration of the FCAT to the district’s students. The Test Administration Manual summarizes the “dos and don’ts” of test administration for the FCAT. It also includes a copy of the statute and rule governing test security, which for the 2003 FCAT were Section 228.301, Florida Statutes, and Florida Administrative Code Rule 6A-10.042. On the issue of test security, the Test Administration Manual explains that: it is not appropriate to talk with [students] about any test item or to help them answer any test item. For example, if students finish the test before the allotted time for the session has elapsed, or have not attempted to complete a question, it would be appropriate to encourage them to go back and check their work. It is not acceptable to provide the students with any information that would allow them to infer the correct answer, such as suggesting that they might want to check their work on a specific question. (Emphasis in original). The FCAT is required by state law to be administered annually to public school students in the third through tenth grades to measure the students’ proficiency in reading, writing, science, and math. The FCAT measures the students’ performance against state standards. The Norm Referenced Test (NRT), which is administered in conjunction with the FCAT, measures the students’ performance in math and reading against national standards. The FCAT is an important test, both to students and the schools. The student’s promotion to the next grade and/or class placement is affected to some degree by his or her performance on the FCAT. The school’s grade, which has an impact on the funding that the school district receives from the state, is also affected to some degree by the students’ performance on the FCAT. The math and reading portions of the 2003 FCAT were administered to fifth graders on Monday through Wednesday, March 3-5, 2003. The science portion of the FCAT and the NRT were administered the following week, on Monday through Wednesday, March 10-12, 2003. Throughout the 2002-03 school year, Respondent “taught the FCAT” and gave her class practice FCAT questions. She used the questions as teaching tools and to help prepare her students for the actual FCAT. Respondent would sometimes explain the wording of the practice questions to her students and, as needed, she would provide the students other assistance, both individually and as a class, while they were working on the practice questions. On Friday, February 28, 2003, Respondent administered two practice tests to her students in which she tried to simulate the environment in which the students would be taking the actual FCAT the following week. For example, the tests were timed and Respondent walked around the room as she proctored the tests. Respondent helped the students during the practice tests as she had done with the practice questions administered throughout the year. At one point, she stopped the test and reviewed a math problem on the board with the class because she observed a number of students having problems with a particular question. Respondent administered the math and reading portions of the actual FCAT to 18 students in her homeroom class on March 3-5, 2003. None of those students were exceptional education students who were entitled to special accommodations. Respondent did a 15 to 20 minute “mini-review” each morning that the students were taking the actual FCAT during which she went over terminology and concepts that the students might see on the test that day. Respondent started the administration of the actual FCAT by reading the directions verbatim from the “scripts” in the Test Administration Manual. Once the students began taking the test, she monitored them from her desk and she also walked around the room on a periodic basis. Respondent also went to students’ desks when they raised their hands. The Test Administration Manual contemplates that students might raise their hands and ask questions during the test; indeed, the “scripts” that the teacher is required to read verbatim state more than once, “Please raise your hand if you have any questions.” Respondent denied giving the students any assistance in answering the test questions on the actual FCAT. According to Respondent, when a student asked her about a particular test question, she told the student that “I can’t help you,” “go back and re-read the directions,” “do the best you can,” or other words to that effect. The Department’s testing coordinator, Victoria Ash, testified that responses such as those are acceptable. Respondent also made a general statement to the class during the test reminding the students to go back and check their work if they finished the test before the allotted time expired. Ms. Ash testified that a general reminder such as that is “absolutely acceptable.” Respondent’s testimony was corroborated by student J.M., who credibly testified that he recalled more than once hearing Respondent tell other students that she could not help them during the actual FCAT. Several students testified that Respondent helped them during the actual FCAT by explaining words that they did not understand, explaining how to solve math problems, and/or by suggesting that they check their work on particular problems. That testimony was not persuasive because it lacked specificity and precision, and other than A.P., B.B. (boy), and K.J., the students testified that they were not certain that the help they remembered receiving was on the actual FCAT rather than on the practice tests that they were given by Respondent. With respect to B.B. (boy), the undersigned did not find his testimony persuasive because he also testified that Respondent helped the entire class with a math problem during the actual test, which contradicted the statements given by the other students and which suggests that he was recalling events from the practice test during which Respondent gave such help to the entire class. With respect to A.P. and K.J., the undersigned did not find them to be particularly credible witnesses based upon their demeanors while testifying. There were other inconsistencies in the students’ accounts of Respondent’s administration of the FCAT that make their testimony generally unpersuasive. For example, B.B. (girl) testified that Respondent played classical music during the actual test, which was not corroborated by any other student in the class and was contradicted by Respondent’s credible testimony that she played music during the practice tests to relax the students but that she and the other fifth-grade teachers at Avon Park Elementary School made a conscious decision not to play music during the actual FCAT. As a result of the students’ apparent confusion regarding events occurring during practice tests rather than the actual FCAT, the inconsistencies in the students’ accounts of the events during the administration of the test, the general lack of specificity and precision in the students’ accounts of the events, and Respondent’s credible denial of any wrongdoing, the evidence does not clearly and convincingly establish the truth of the allegations against Respondent. In making the foregoing finding, due consideration was given to the investigation undertaken by the district-level testing coordinator, Rebecca Fleck, at the time of the allegations against Respondent, and the materials generated through that investigation. The reason for the investigation was a phone call that Ms. Fleck received on Wednesday, March 5, 2003, from a Department employee who told Ms. Fleck that the Department had received an anonymous complaint about Respondent’s administration of the FCAT. Ms. Fleck went to Avon Park Elementary School on Friday, March 7, 2003, to investigate the complaint. On that date, she met with the school’s assistant principal and interviewed several of the students in Respondent’s class. She also spoke briefly with Respondent to “get her side of the story,” which consistent with her testimony at the hearing, was an unequivocal denial of any wrongdoing. Ms. Fleck decided, based upon the student interviews, that Respondent should not administer the science portion of the FCAT or the NRT the following week. As a result, Respondent was assigned to work at the school district office on March 10-12, 2003, while her students were taking the tests on those dates. Ms. Fleck also decided to interview and get statements from all of the students in Respondent’s class, which she did on the following Monday and Tuesday, March 10 and 11, 2003. On those days, the students were called to the principal’s office in groups of two or three and they were asked to fill out a questionnaire developed by Ms. Fleck. Pam Burnaham, the principal of Avon Park Elementary School, and Ms. Fleck supervised the students while they filled out the questionnaires. The students were not told that Ms. Fleck was investigating alleged wrongdoing by Respondent; they were told that the purpose of the questionnaire was to find out about their “FCAT experience.” Ms. Fleck testified that she was confident that the students understood that the questionnaire related only to the actual FCAT and not any of the practice tests administered by Respondent; however, Ms. Burnaham testified that she did not place any emphasis on the distinction, and as noted above, the students’ testimony at the hearing indicates that they may have been confused on this issue. Ms. Fleck concluded based upon the students’ responses on the questionnaires that Respondent “coached” the students during the administration of the actual FCAT. As a result, she invalidated the tests of all 18 students in Respondent’s class. Ms. Fleck’s decision to invalidate the students’ tests was not unreasonable based upon what she was told by the students, which she believed to be true; however, the invalidation of the tests is not sufficient in and of itself to impose discipline on Respondent because, as discussed above, the truth of the students’ allegations was not clearly and convincingly proven at the hearing. Several of the students gave written statements to a Department investigator in late May 2003 regarding the help that they recalled being given by Respondent on the FCAT. No weight is given to those statements because no credible evidence was presented regarding the circumstances under which the statements were made, the statements were made several months after the events described in the statements, and as was the case with the questionnaires the students filled out for Ms. Fleck, the undersigned is not persuaded that the students understood at the time they were giving the statements that they were describing events that occurred during the actual FCAT rather than the practice tests that they were given by Respondent. There is no persuasive evidence that any of the students in Respondent’s class whose tests were invalidated suffered any adverse educational consequences. Even though the school administrators did not have the benefit of the students’ FCAT scores for purposes of placement and/or developing a remediation plan, they had other information on which they could make those decisions, including the students’ scores on the NRT, which was administered the week after the FCAT and was not invalidated. Other than being reassigned to the school district office during the administration of the NRT, Respondent did not suffer any adverse employment consequences from the school district as a result of the students’ allegations and/or the invalidation of the students’ tests. To the contrary, Respondent continued to get good performance reviews and her contract has been renewed twice since the administration of the 2003 FCAT. Respondent did not administer the 2004 FCAT because this case was still pending. She was given other duties at Avon Park Elementary School while her students were taking the 2004 FCAT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 6th day of April, 2005.
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.
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent, Jean Regan, from her employment as a teacher.
Findings Of Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by statute or rule 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. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995). Thus, deciding whether Ms. Regan’s alleged conduct violates the law as charged in the School Board’s termination letter is a factual, not legal, determination. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by assisting students in selecting correct answers. Ms. Regan credibly denied ever assisting the students in that manner. In fact, the credible evidence confirmed that Ms. Regan had little opportunity to read the passages to determine the correct answers and, given that the students had different versions of the FSAT, it was highly improbable that she could have known the correct answers when moving from student to student. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by otherwise violating the FSAT standards. The credible evidence confirmed that Ms. Regan permissibly could: touch the test booklets and point at items while providing oral accommodations; flip through the test booklet to look for the questions the students had identified as needing an accommodation because that is exactly how they practiced in the classroom; and encourage the students to make sure that they completed the test by reading the corresponding directions, particularly after they prompted her to do so, just as they learned in class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Polk County School Board, issue a final order reinstating the Respondent, Jean Regan, as a classroom teacher and awarding her back pay to the date on which the School Board first suspended her without pay. DONE AND ENTERED this 26th day of February, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 26th day of February, 2020. COPIES FURNISHED: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830-4620 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed) Jacqueline Byrd, Superintendent 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed)
The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Rose Davidson (Respondent) committed the acts alleged in the Miami-Dade County School Board's (School Board) Notice of Specific Charges and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At the times relevant to this proceeding, Respondent was employed pursuant to a professional services contract as a second grade teacher at Graham Center, which is a public school in Miami-Dade County. Respondent’s employment is governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Respondent has been employed by the School Board since 1990. She spent the first ten years of her career teaching elementary students at Westview Elementary. She next taught high school for approximately 15 years. She was thereafter transferred to Graham Center in the 2011-2012 school year where she taught second grade for that school year and the 2012-2013 school year. SAT During the spring of every school year, all Miami-Dade County public school students in kindergarten, first grade, and second grade take the SAT to assess each student’s reading comprehension and mathematics problem-solving skills. During the 2012-2013 school year, the reading portion of the SAT was administered on April 9, 2013, and the math portion was administered the following day. The SAT is a norm-referenced standardized assessment used nationwide to gauge student achievement. The assessment provides a means to compare a student’s achievement with peers across the country. The assessment also provides a means to determine a student’s needs, and can serve as a tool in developing strategies to assist the student. The SAT can be administered only once per school year. During the 2011-2012 and 2012-2013 school years, all of the kindergarten, first grade, and second grade students at Graham Center took the SAT. During the 2011-2012 school year, Respondent served as a proctor for the administration of the SAT to a class, but she was not the administrator of the SAT. For the 2012-2013 school year, Respondent served as the administrator of the SAT to her class. In preparation for the upcoming administration of the SAT, Karen Belusic, Graham Center’s assistant principal, conducted a training session on March 14, 2013, for all the second grade teachers at Graham Center on how to properly administer the SAT. Respondent attended the March 14 training session. The training informed the teachers about the procedures for administering the test, test security, and how to handle test materials. Ms. Belusic instructed the teachers not to look at test items, review test items, or assist students with test items. Teachers were told to report any testing irregularities. In preparation for the administration of the annual SAT, during the first week of March 2013, School Board staff provided all public elementary schools with an SAT practice test to familiarize students with the format of the test. Respondent and the other second grade teachers at Graham Center received the practice test during the March 14 training session. The cover sheet of the practice test provided by School Board staff reflects that it is a "Practice Test Booklet" for the SAT. In addition to the practice test provided by School Board staff, Eileen Gross, the grade chair for second grade at Graham Center, provided all second grade teachers a variety of practice booklets on a weekly basis beginning just prior to the week of February 16, 2013, and ending just before the week of March 25, 2013. Ms. Gross also distributed three reading simulations and three math simulations to the second grade teachers. Respondent considered the practice test she received from School Board staff and the materials she received from Ms. Gross to be basic. Sharon Moyd is a fourth grade teacher at Lakeview Elementary School (Lakeview), which is a public school in Miami-Dade County. Respondent and Ms. Moyd are longtime friends. Well before the administration of the SAT, Respondent asked Ms. Moyd if she had any materials that would help her class prepare for second grade. Ms. Moyd asked several second grade teachers at Lakeview if they had any materials that might help her friend. Tangle Butterfield, a Lakeview second grade teacher, gave Ms. Moyd what Ms. Butterfield understood to be a practice SAT test. That practice test was admitted into evidence as Petitioner’s Exhibit 5 and will, for ease of reference, be referred to as Exhibit 5. Ms. Butterfield had received Exhibit 5 from a reading coach during a Saturday workshop in 2011. Ms. Butterfield and at least one other Lakeview teacher had utilized Exhibit 5 in preparing students for the SAT. The cover sheet of Exhibit 5 reflects that it is a "Practice Test Booklet" for the SAT, and is almost identical to the cover sheet of the practice test provided by the School Board staff. Ms. Butterfield put Exhibit 5 in a manila envelope and gave it to Ms. Moyd. Ms. Moyd put the envelope in the trunk of her car without reviewing the contents of Exhibit 5, where it remained for several weeks. In mid-March 2013, Ms. Moyd informed Respondent that she had something for Respondent. They arranged a mutually convenient place to meet (in a parking lot) where Ms. Moyd gave the envelope and its content to Respondent. Ms. Moyd never reviewed the contents of Exhibit 5. Spring break was the week prior to the administration of the 2013 SAT. On the last Sunday of that week, Respondent "glanced over" Exhibit 5 because she wanted the school secretary to make copies of the material when school resumed the next morning. The next morning, Respondent took Exhibit 5 to the office at Graham Center and had a secretary make enough copies for her students. Respondent then distributed the copies to her students for them to take home and study. There was an allegation that Respondent told her students not to tell anyone about Exhibit 5. The greater weight of the credible evidence fails to establish that allegation. Respondent gave out Exhibit 5 to her class and told the students that she would give them homework credit for taking the practice test. The next day, Tuesday, April 9, 2013, Respondent collected the practice tests from the students and administered the reading section of the SAT to her class. That same day, when her students were out of the class at physical education and music, Respondent graded the practice tests that had been completed by her students, including the math section. Respondent marked the correct and incorrect answers. Respondent returned the graded booklets with the corrected answers for them to study prior to the next day’s administration of the math portion of the SAT. The math portion of the SAT is designed for the administrator to read the question to the class and for the student to answer the question as read. The SAT booklets that the students complete during the actual administration of the math portion of the SAT contains only multiple choice answers. They do not contain the corresponding questions. The math portion of Exhibit 5 contains multiple choice answers for the students, but it does not have the corresponding questions in the same part of the booklet as the multiple choice answers. The last part of the math portion of Exhibit 5 includes instructions to the administrator of the test. Those instructions contain the questions the administrator is to read to the students.1/ Rosa Sanchez, a reading coach at Graham Center, served as a proctor for the SAT administered by Respondent on April 9 and 10, 2013. On April 10 Ms. Sanchez observed a male student (K.R.) who kept dropping his pencil. Ms. Sanchez gravitated towards K.R. to make sure he was not disturbing other students. As Ms. Sanchez stood next to K.R. she looked at his test booklet and noticed that he had answered a question that Respondent had not yet read to the class. The answer K.R. chose involved a chart, which took up most of the page. The student’s test booklet did not contain the question. Before the students could answer the question, the test administrator was supposed to read instructions about where to start on the chart and how to move along the chart. Ms. Sanchez told K.R. that he needed to stop working ahead because he had not yet heard the instructions from the teacher. K.R. told Ms. Sanchez that he remembered the question from the test booklet. Ms. Sanchez then raised her hand to Respondent, who was at the front of the class, to indicate that Respondent needed to stop the test. Instead of stopping, Respondent looked at K.R. and stated, "K. stop saying crazy things and pay attention." Ms. Sanchez immediately looked around and observed that other students appeared to be answering questions Respondent had not asked. At the conclusion of the SAT, Ms. Sanchez reported what she believed to be an irregularity to Ms. Belusic, the assistant principal who served as the SAT chairperson for Graham Center. Together they informed Ms. Alfaro, the principal. Ms. Alfaro went to Respondent’s classroom and asked her for all copies of Exhibit 5. Respondent opened a locked cabinet, retrieved the material, and handed the material to Ms. Alfaro. When asked, Respondent told Ms. Alfaro that she had gotten the material from a teacher at Lakeview named Sharon. Ms. Alfaro compared Exhibit 5 to the actual SAT test. Many of the same questions and answers contained in Exhibit 5 were identical to questions on the actual SAT test. Upon further investigation, Dr. Sally Shay, the District Director of the Office of Assessment Research and Data Analysis, compared Exhibit 5 and the actual SAT test. On the reading portion, Exhibit 5 contained 30 questions and answers while the actual SAT contained 40 questions and answers. The questions and answers on the reading portion of Exhibit 5 were identical to 30 of the questions and answers on the real SAT. For the math portion, Exhibit 5 contained 30 questions and answers while the actual SAT contained 44 questions and answers. The questions and answers on the math portion of Exhibit 5 were identical to 30 of the questions and answers on the real SAT. All of the SAT scores for Respondent’s students were invalidated. Petitioner failed to establish that Respondent knew or should have known that Exhibit 5 contained actual SAT questions. Petitioner asserts that Respondent used actual SAT questions and answers to prepare her students so their higher scores would qualify her for a performance bonus of approximately $350.00. That theory is improbable, and it is not supported by the evidence. FAIR The FAIR assessment is a state-mandated assessment test to evaluate a student’s reading ability. Second graders take the FAIR assessment three times during a school year. There is a section of the assessment that deals with students spelling words on paper that are said by the teacher. In addition, there is a part of the test that involves the use of a computer, with the student reading the question from a booklet and giving the teacher his or her answer. The student sits next to the teacher, who inputs into the computer whether the student’s answer was correct. There is a script that informs the teacher whether a particular answer is acceptable. Toward the end of the 2012-2013 school year, after the SAT scores for Respondent’s students were invalidated, Ms. Alfaro examined the scores of Respondent’s students on the FAIR assessments for the school year 2012-2013. By that time Respondent had administered the FAIR assessment to her students for all three periods. For the first period assessment, towards the beginning of the school year, Respondent’s students’ scores ranged from 14% to 99%. For the second period assessment, towards the middle of the school year, the scores ranged from 92% to 99%.2/ For the third assessment, toward the end of the school year, one student scored 73%, but the other students ranged between 92% and 98%. Ms. Alfaro considered the scores for the last two periods to be too high, and had Ivette Padron-Rojas, a Curriculum Specialist, re-assess Respondent's class for the third assessment period. The re-assessment resulted in substantially lower scores for most of Respondent’s students. Petitioner offers its theories for the discrepancies in scoring in paragraph 27 of the Notice of Specific Charges, which alleges in part that "tests administered by Respondent were misleading and erroneous, and that Respondent’s scores were inflated and manipulated, in part due to Respondent providing students with the actual spelling words to study and practice prior to taking the assessment." The School Board established that students’ test scores for assessment period three were substantially higher when Respondent administered the assessment than they were when Ms. Padron-Rojas administered the assessment. However, Petitioner failed to prove its allegation that Respondent provided the students with the actual spelling words to study before the students took the assessment, and there was no other evidence to establish that Respondent’s administration of the assessment was "misleading," "erroneous," "inflated," or "manipulated." The School Board failed to prove that Respondent acted inappropriately regarding the FAIR assessments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is FURTHER RECOMMENDED that the final order dismiss the charges against Rose Davidson set forth in the Notice of Specific Charges. It is FURTHER RECOMMENDED that the employment of Rose Davidson be reinstated with full back pay and benefits. DONE AND ENTERED this 30th day of May, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 30th day of May, 2014.
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 in this case is whether a district school board is entitled to terminate for just cause the employment of a non- instructional employee who has been accused of misconduct in office, gross insubordination, and conduct unbecoming a school board employee.
Findings Of Fact The evidence presented at final hearing established the facts that follow. From December 1989 until the Board suspended her without pay effective October 11, 2000, Wallace worked in the Miami-Dade Public School System as a non-instructional employee. She held various clerical and secretarial positions in several different offices during that period. At the time of her suspension, Wallace was a Senior Secretary in the Office of Applied Technology, Adult, and Career Education. Wallace is a member of the United Teachers of Dade ("Union"). She is covered by the collective bargaining agreement between the Union and the Miami-Dade County Public Schools that took effect on July 1, 1999, and operates until June 30, 2002. Article XXI, Section 3, of the collective bargaining agreement sets forth the "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel" and contains the following provision: D. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. Pet. Exh. 1A. Although capable, Wallace has been a marginal employee whose service in the school system has been marked by documented deficiencies and supervisors' complaints. One former boss succinctly described her as being able "to do an excellent job[,] but . . . defiant, . . . disrespectful, . . . irresponsible, . . . [and] unreliable." Transcript of Final Hearing ("T-") 253. In fairness, this person's experience with Wallace ended in December 1995, yet others for whom Wallace worked more recently echoed her sentiments. Indeed, the Board presented extensive evidence of Wallace's negative employment history, establishing persuasively that over the years she had committed numerous infractions such as arriving late to work, taking long lunches, disobeying instructions, failing timely to complete assignments, and spending excessive time on personal telephone conversations. However, these incidents — many of which happened years ago and long before the Board decided to dismiss Wallace — are too remote, as a factual matter, to bear on the charges against her. Further, Wallace received her last annual evaluation at the end of the 1998-99 school year.1 Her evaluator was Mr. Dale Keith, the person to whom Wallace then directly reported. Signed by Mr. Keith on July 14, 1999, the evaluation contained his ratings of Wallace, as either satisfactory or unsatisfactory, in seven performance categories: A. Knowledge; B. Quality of Work; C. Efficiency; D. Interpersonal Skills; E. Dependability and Judgment; F. Attendance and Punctuality; and G. Adherence to Rules and Procedures. Mr. Keith rated Wallace satisfactory in every category and assigned her an Overall Performance Rating of satisfactory. He did not prescribe any "[r]equired actions toward remediation of deficiency" but made several "suggestions" for improvement in the upcoming 1999-2000 school year.2 Thus, as this evaluation demonstrates, despite past problems, by July 1999 Wallace had remedied her deficiencies to a degree that her job was not in immediate jeopardy. After July 1999, however, Wallace wound up in work-related trouble on three specific occasions, the circumstances of which are pertinent to the present charges. The Jury Duty Incident (August-September 1999) After receiving a summons requiring her to be available for jury duty in federal court during a two-week period beginning on Monday, August 30, 1999, Wallace notified Mr. Keith, in accordance with office procedures, that she might be absent from work as a result. Wallace did not report to work on August 30, 1999, or any following day that week. She also failed to keep Mr. Keith apprised of her whereabouts. On Friday, September 3, having heard nothing from Wallace, Mr. Keith contacted the court clerk's office, which sent him, by facsimile transmission, a Certificate of Juror's Attendance attesting to the fact that Wallace had attended court proceedings in person on August 30, 1999 — but not thereafter. On Tuesday, September 7, 1999 (Monday of that week was Labor Day), Mr. Keith called Wallace to find out what was going on. The upshot of this discussion was that Mr. Keith discovered Wallace had not been needed in court from Tuesday through Friday of the preceding week, but apparently she was serving on a jury during this second week of her eligibility. Mr. Keith told her to call in daily, and she did so after that. Upon Wallace's return to work, she was disciplined for having taken unauthorized leave on the days when she was neither in court nor in the office. As punishment, the Board docked Wallace's pay by four days' wages, and the matter was closed. The First Typing Test Incident (September 1999) Shortly before 9:00 a.m. on September 16, 1999, Wallace entered the Division of Non-Instructional Staffing's testing lab. Once inside, she recorded her name, arrival time, and purpose — to take a typing skills test — in a Receptionist Log located in the lobby. The typing skills test that Wallace desired to take is used to screen potential applicants for clerical and secretarial jobs. A tool that measures typing speed, the test is administered to persons not presently employed in the Miami-Dade Public Schools who are interested in applying for clerical positions in the system, as well as to existing employees who, by improving their previous scores, may become eligible to apply for higher-level jobs. A person who is not already employed in the school system must achieve a score that meets the minimum requirement for some position to become eligible to submit an application. A prospective applicant will not be provided an application until after he or she has passed the typing skills test by earning a minimally qualifying score. There are additional examinations that must be taken later in the application process, but none is at issue here. Because it is beneficial to earn a score that will qualify for as many positions as possible, existing employees routinely re-take the typing skills test in hopes of expanding their opportunities for advancement. The fastest typing speed required for any clerical or secretarial job, however, is 60 words per minute ("wpm"). Therefore, once an individual attains a score of 60 wpm or better, that person can achieve no additional competitive advantage with a higher score and need not be tested again. Wallace had attained a score of 60 wpm in 1994. Although Wallace appears to have had no practical reason to re-take the typing skills test in September 1999, she was not at the time under direct orders forbidding her from doing so, and there were no specific written rules or policies proscribing her action.3 An employee named Mariana Pena was responsible for administering the typing skills test. That September morning when Wallace appeared, Ms. Pena called the names of the persons who had signed the Receptionist Log, collected their picture identification cards for verification, brought them to the testing area, and gave instructions to sit down at one of the computer terminals and sign in by name and Social Security number. Wallace went into the testing area accompanied by another woman with whom she appeared to be friendly. Consistent with their apparent familiarity, the two sat next to each other. Ms. Pena did not happen to see the computer screen showing the name and Social Security number that Wallace entered when she signed in. Persons taking the typing skills test are provided a piece of paper and instructed to type the text contained on it. The computer determines each person's proficiency and prints the results, assigning a score to each individual, all of whom are identified on the score sheet by name and Social Security number. Each person is given two chances to perform, and his or her lower score is discarded. Ordinarily, the persons being tested proceed with their respective second attempts as the results print out from their first ones. On September 16, 1999, the results from the first round of testing were anomalous in that Wallace's putative friend had managed to post two scores while Wallace herself had generated no score. One possible explanation for this unusual outcome was that Wallace had taken the test under her friend's name, by prior arrangement, while the latter had failed to perform her part in the plot by pretending to be Wallace. There was no direct proof, however, that the two had conspired to cheat in this manner. Suspecting that a scheme was afoot, Ms. Pena kept a watchful eye on the pair during the second round of testing. This time, the results were normal, with a score assigned to each test taker. At the conclusion of the testing process, Ms. Pena asked Wallace and her apparent friend to remain behind. Ms. Pena and her immediate supervisor, Arlene Diaz, questioned the two and ascertained that both were school system employees. In due course, the details of the incident were provided to Mr. Henry Horstmann, an Executive Director in the Division of Non-Instructional Staffing. Upon learning what had transpired, Mr. Horstmann contacted Wallace by telephone and explicitly directed her to stay away from the testing lab. In addition, Mr. Horstmann ordered Wallace not to take the typing skills test again without obtaining his permission in advance. Separately, he instructed Ms. Pena and Ms. Diaz that Wallace was not to be given the typing test, and that they must notify him immediately if she attempted to take it in the future. Mr. Horstmann's directives to Wallace were unambiguous and, in view of the circumstances, entirely reasonable in nature.4 He unquestionably had the authority to issue them. The Second Typing Test Incident (February 2000) On February 23, 2000, Wallace returned to the testing lab for the purpose of taking the typing skills test. This time, she signed the Receptionist Log as "Tranee Wallace." Tranee Wallace is the name of Wallace's daughter. After Ms. Pena called the roll, Wallace presented an identification card that bore Tranee's name and picture. When Ms. Pena saw the photograph, she could tell that the identification was not Wallace's. Also, seeing the name "Wallace" on the card jogged her memory of the September 1999 incident, causing her to recognize Wallace. As instructed, Ms. Pena immediately notified Mr. Horstmann that Wallace was in the testing lab. Mr. Horstmann walked to the testing lab and removed Wallace, escorting her back to his office. There, Mr. Horstmann examined the identification that Wallace had presented to Ms. Pena and observed that it belonged to Wallace's daughter Tranee. Mr. Horstmann explained to Wallace that he was going to refer the matter to the Office of Professional Standards for investigation. He again directed Wallace not to return to the testing lab. Mr. Horstmann also notified Dr. John Goonen, the Administrative Director, Adult Education Work Force Development, in whose department Wallace was working, about the situation. Having heard from Mr. Horstmann, the District Director of the Office of Professional Standards approved an investigation into the February 2000 incident at the typing lab. The case was assigned to Detective Niurka Echezebal of the Miami-Dade County School Police Department. On March 20, 2000, the detective interviewed Wallace in the presence of a Union representative. During the interview Wallace stated that she had disobeyed Mr. Horstmann's earlier directive to stay away from the testing lab because she was upset at having been forbidden to take the typing skills test again. Wallace admitted that she had attempted to take the test using her daughter's name and identification. Wallace denied that she was trying to help Tranee become eligible for employment in the school system. She claimed that she merely had wanted to practice her typing speed. The investigation, which concluded on March 29, 2000, resulted in a determination that Wallace had committed the offense of fraud. As a result, she was directed to appear at a conference-for-the-record in the Office of Professional Standards, which took place as scheduled on May 9, 2000. At that meeting, Wallace again denied having attempted to take the typing skills test for her daughter. As before, Wallace maintained that she had desired only to discover how well she would fare on the test. About five months later, on October 11, 2000, the Board made the decision that gave rise to these proceedings, suspending Wallace without pay, with the intent to terminate her employment. Ultimate Factual Determinations Wallace did not commit the offense of gross insubordination or willful neglect of duties, as defined in Rule 6B-4.009(4), Florida Administrative Code — not, at least, after July 1999. Her failure during the week of August 30, 1999, to report for work under the pretense of jury service was not in defiance of a direct order, and in any event Wallace was punished appropriately for that misdeed. Similarly, Wallace’s first bit of trouble in the typing lab, which took place on September 16, 1999, did not stem from an intentional refusal to obey a direct order; too, she was properly disciplined for her involvement in that event. In contrast, when Wallace attempted to take the typing skills test on February 23, 2000, she intentionally violated a direct and reasonable order, given by Mr. Horstmann with proper authority, that she not return to the testing lab for the purpose of taking the typing skills test without securing his permission in advance. This single, flagrant act of insubordination, however, does not amount to "constant or continuing" disobedience, which the rule requires be shown to justify termination of employment. Wallace’s participation in the first typing test incident did not constitute misconduct in office. Although the Board has argued here that Wallace was engaged in a fraud that September day, the evidence regarding her intent was inconclusive — as Wallace’s superiors concluded at the time of the event. Whether Wallace was an innocent victim of someone else’s mistake or wrongdoing, made a mistake of her own, played a prank, or had something more malign in mind is hard to say. Mr. Horstmann’s pragmatic punishment — ordering Wallace not to return to the testing lab — was a sensible resolution of the affair. Wallace is guilty of the offense of misconduct in office as a consequence of the second typing test incident. Her attempt to take the typing skills test while knowingly posing as her daughter was made with an intent to deceive the Board and hence was tantamount to fraud. Wallace's explanation that she wanted to take the test for her own benefit rather than her daughter's is not credible. The trier refuses to believe that Wallace would have taken so large a risk (loss of job) for so little gain (secret satisfaction at performing well on an in- house typing skills test?) when a more likely motive is readily apparent. The circumstances and common sense suggest that Wallace — whose typing abilities qualified her for any clerical or secretarial position in the school system — intended to take the test for her daughter so that Tranee could apply for some job, at least, and the widest variety of jobs at best. Accordingly, when Wallace wrote her daughter's name in the Receptionist Log, she knowingly misrepresented, on a document in connection with professional activities, a material fact — her identity — with the intent that Ms. Pena (or whoever was about to administer the test) would rely on the false statement and allow her to take the test as Tranee. Continuing with the deception, Wallace failed to maintain honesty in her professional dealings when she handed Tranee's identification card to Ms. Pena knowing that the card misrepresented Wallace's true identity and with the intent that Ms. Pena would believe Wallace to be Tranee. Wallace's deceitful conduct on the occasion of the second typing test incident violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), as well as Rule 6B- 1.006(5)(a)(employee shall maintain honesty in all professional dealings).5 Wallace's deceitful conduct also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve highest degree of ethical conduct) and School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and affirmatively requires employees to conduct themselves so as to reflect credit on themselves and the school system. These latter two violations, it should be mentioned, are derivative of the first two described, inasmuch as an act of fraud or dishonesty necessarily misses the "highest degree of ethical conduct" mark and always fails to reflect credit on the perpetrator. There was little direct evidence that Wallace's deceitful conduct actually impaired her effectiveness in the school system — which is a necessary factual component of the offense of misconduct in office. Mr. Keith's testimony on the issue of ineffectiveness was largely hypothetical and somewhat ambivalent. T-283-84. Dr. Goonen's testimony on the point was conclusory, T-313-15, as was Ms. Virginia Bradford's, T-346. Dr. Goonen and Mr. Keith argued that Wallace could not be trusted to handle sensitive assignments, such as those involving information about other employees' rates of pay, but this contention seemed contrived and lacked force. Wallace's secretarial duties did not demand a heightened degree of trustworthiness, honesty, judgment, or discretion above and beyond that which any reasonable employer would expect of a rank-and-file employee.6 Moreover, and more important, there was no evidence that Wallace's responsibilities were restricted in any way as a result of the misconduct in question. Indeed, it is striking that, although Wallace continued to work in the school system for nearly seven months after the second typing test incident, the Board did not present proof of a single occurrence of actual ineffectiveness attributable to her deceitful conduct. Nevertheless, Wallace's misconduct — which entailed a premeditated, intentional deception of her employer for the purpose of subverting the integrity of the employment application process, to the potential detriment not only of the school system but also of prospective applicants besides Tranee — was of a kind that would not have failed, in the ordinary course of events, to impair her effectiveness in the school system. This finding is based on common sense and common knowledge, which teach that: (1) an employee who has been caught, red-handed, in the very act of advancing a plan to deceive his or her employer inevitably will be branded dishonest and disloyal — in a word, untrustworthy; and (2) an employee whose probity is rightly suspect cannot be as effective as one who is regarded favorably, or at least has given no cause for concern, on that score. Therefore, under the facts of this case, it is reasonable to infer, and the trier of fact does infer, that Wallace's deceitful conduct must have impaired her effectiveness in the school system, to some extent. In drawing the fair inference of resulting ineffectiveness, the trier has taken into account several additional factors that should be noted. First, the deceitful conduct at issue was not of a private immoral nature, e.g. some sort of consensual sexual activity between adults. Second, to execute her fraudulent scheme, Wallace needed to defy a direct order to stay away from the testing lab; the seriousness of Wallace’s deceitful conduct is magnified by the fact that it required a predicate act of willful defiance. Third, Wallace refused to acknowledge her wrongdoing, offering instead incredible excuses for it, and she never apologized or showed remorse. She did nothing, in short, to mitigate the damage to her reputation; if anything, she compounded the impairment that follows inexorably from fairly being thought dishonest. Finally, while there was no persuasive direct evidence of Wallace's resulting ineffectiveness, there was also no affirmative evidence that she continued to be effective despite having been caught, in flagrante delicto, defrauding her employer. In sum, taking into consideration all of the evidence in the case, there are no compelling countervailing factual grounds to discourage the drawing of an inference of ineffectiveness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Wallace’s suspension without pay effective October 12, 2000, and discharging her from further employment in the Miami- Dade Public Schools. DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of April, 2001.
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.
