The Issue Whether Respondent, Department of Education, should have invalidated Petitioner's, Lori Monroe, Florida Teacher Certification Examination, for her alleged violation of a test- taking protocol.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is seeking to be certified as a teacher. She submitted appropriate application and sat for the March 4, 2006, Florida Teacher Certification Examination. Respondent is the state agency responsible for certifying teachers in the State of Florida and conducts the Florida Teacher Certification Examinations. The Florida Teacher Certification Examinations are given four times per year in various locations around the state. Because of the frequency and volume of Florida Teacher Certification Examinations, the application process and information regarding testing procedures are refined. The preliminary information provided examinees includes a statement of understanding, written in the first person, which makes specific reference to the fact that the examinee "must follow the instructions of the test administration personnel," and, "If I do anything prohibited by this paragraph, my examination results will be voided." In addition, examinees are provided an information sheet identifying "cheating behaviors." Included in the list of "cheating behaviors" is the following: "During the examination administration, continuing to work on the examination after the testing time had elapsed, and the directive to stop working has been given by a room proctor or supervisor." Included in the referenced refinements in testing procedures are instructions contained in a Test Administration Manual provided to test room supervisors and proctors that ensure the appropriate administration of the tests. The Test Administration Manual specifically delineates the procedure to be followed upon observation by a room supervisor or proctor when "an examinee continues to work on the test when time is called." In the instant case, the room supervisor and proctor, both of whom were experienced test administrators, followed the appropriate procedures. Both the room supervisor and proctor were within several feet of Petitioner who was sitting in the front-row seat of the classroom. Not only was Petitioner within easy view, but, certainly close enough to clearly hear the general instructions to stop. They observed Petitioner continue to enter answers on her answer sheet after examinees had been told to stop two times. It is unfortunate that the particular conduct of the Petitioner is characterized as "cheating," as the evidence, including the observations of the room supervisor and proctor, portrays Petitioner as being so focused on the examination that she did not hear the instruction to stop and, unfortunately, continued to answer questions after the test had concluded. Respondent advised Petitioner by letter dated March 20, 2006, that she had been assigned a score of "invalid" and that she had not fulfilled the requirement for a passing score on the Elementary Education K-6 examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order concluding that an irregularity had occurred and that "invalid" was the appropriate test score for the subject test. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 19th day of July, 2006. COPIES FURNISHED: Matthew J. Carson, Esquire Department of Education Division of Vocational Rehabilitation 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0440 Charlie S. Martin, Esquire McLeod, McLeod & McLeod, P.A. 48 East Main Street Post Office Drawer 950 Apopka, Florida 32704-0950 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
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 issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Adela Popescu holds Florida Educator's Certificate 876674 covering the area of mathematics, which was valid through June 30, 2006. She was employed by the Broward County School District as a math teacher. The Florida Teacher Certification Examination ("FTCE") is a statewide examination. It is given four times a year at multiple locations. The Department of Education contracts with the Institute of Instructional Research and Practice of the University of South Florida to administer the examination, and the Institute contracts with persons to serve as room proctors and to grade the essay part of the general knowledge portion of the examination. The general knowledge portion of the examination is a basic skills test. Respondent applied to take the general knowledge portion of the test on April 16, 2005. That portion required the examinees to write a short essay on a choice of topics. The Department provided to Respondent, along with her admission card allowing her to take the examination, the Department's written guidelines prohibiting cheating on the examination and itemizing some activities considered cheating following the words "including but not limited to." Respondent took the essay portion of the general knowledge examination on April 16, 2005. At the beginning of the examination, the examinees were given written instructions. The instructions specifically provided: "You will have 50 minutes to plan, write, and proofread an ORIGINAL essay on one of the two topics presented below." Two topics were presented and then the following sentence provided: "Read the two topics again and select the one on which you wish to write your ORIGINAL essay." The word "original" was in capital letters in both sentences. In addition to the written instructions, the room supervisor for the test read the following instructions to the group of examinees: You must write an original essay that specifically and directly responds to the topic you select. Pre-prepared essays that are discovered to contain memorized sentences or passages will be marked accordingly. For example, if the essay raters discover passages that appear in two or more essays, the essays will be brought to the attention of the Florida Department of Education. The above-quoted language was read three times in succession in order to emphasize the need to write an original essay. Therefore, the requirement that the essay be original was presented to the examinees two times in writing and three times verbally, for a total of five times. There was no minimum or maximum length to the essay. The topics given required no particular level of knowledge of anything; rather, the topics were akin to asking an elementary school student to write an essay on what the child did during the summer vacation. It is surprising to find such a basic task on an examination given to college graduates, but at hearing the Department presented testimony to the effect that it is only trying to ascertain if the examinee can communicate extemporaneously, i.e., whether he or she is capable of writing a note to a student's parents. The five-paragraph-long essay that Respondent turned in as her original work is virtually identical to an essay the Department has seen so many times that Department staff refer to it as "the lush green hills essay." Admitted in evidence were the essays of three examinees who took the exam prior to Respondent and two examinees who took the exam on the same date. The primary differences in the essays arise from inferior skills in the English language so, for example, one examinee wrote "the lunch green hills," Respondent wrote "the lash green hills," one examinee apparently forgot that the green hills were "lush," and one examinee apparently thought there was only one hill. Otherwise, there are few differences in the essays. Respondent's essay was flagged by the essay readers, referred to the chief reader, and then forwarded to the Department. The Department agreed with the determination that the essay was not "original," that Respondent had cheated on the examination, and that her essay should be declared invalid. The Department so advised Respondent by letter dated May 16, 2005. In addition to advising Respondent that her score on the essay subtest of the general knowledge examination was invalid, the Department also advised Respondent that she had a right to an administrative hearing on that determination. Respondent did request an administrative hearing, and the case was transferred to the Division of Administrative Hearings and assigned Case No. 05-2318. Before the final hearing in that case, Respondent filed a Notice of Voluntary Dismissal of her request for a hearing. There is a dearth of evidence in the record in this cause as to how or when Respondent was issued a Florida Educator's Certificate. However, the parties have stipulated that she was licensed, with her license expiring June 30, 2006. Prior to that date, the Commissioner of Education issued the Amended Administrative Complaint which is the subject of this proceeding. There is no evidence as to how Respondent plagiarized someone else's work: whether she brought it into the examination, whether she memorized it, or whether she obtained it through the use of technology. The method she used to cheat, however, is irrelevant since she represented someone else's work as her own and admits it was not an original essay. Shortly before the final hearing in this cause, the parties filed a number of motions typically designed to resolve a case without the need for a hearing. Petitioner argued that jurisdiction over this matter should be relinquished since by Respondent's admission that she did not turn in an original essay, which constituted cheating, there were no longer genuine issues of material fact. In opposition to that motion, Respondent asserted that Petitioner was relying on two policies which were required to be promulgated as rules but were not, thereby preventing Petitioner from taking disciplinary action against Respondent. Respondent alleges that the two unpromulgated rules upon which Petitioner relies are the definition of cheating, which appeared in the materials allowing Respondent admission to the examination, and the examination instructions, which required that an original essay be submitted and which were provided to Respondent twice in writing and three times verbally. Respondent did not raise these issues in her administrative challenge to the Department of Education's decision to declare her essay to be invalid, which would have been the appropriate proceeding since the question of whether she should be given a score for her essay or whether it should be declared invalid was the subject matter of that proceeding, not this proceeding. The two challenged policies, the definition of cheating and the essay instructions, are not rules and, therefore, need not be promulgated pursuant to Section 120.54, Florida Statutes. Further, neither the definition of cheating nor the essay instruction is vague, and neither vests unbridled discretion in anyone. The words "cheating" and "original" are not statutory terms, requiring interpretation. Further, they are not specialized terms unique to the Commissioner of Education or the Department of Education. They are words of common usage. Copying someone else's work and representing it to be one's own is a willful and intentional act. It is also unethical and dishonest to plagiarize.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of Counts 2, 3, and 5-7, as alleged in the Amended Administrative Complaint filed in this cause and suspending or revoking Respondent's educator's certificate for a period of one year. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 23rd day of August, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building 325 West Gaines Street, Room 1224 Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
