The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has been a Florida-certified teacher. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board). Respondent is a dedicated educator who has a passion for teaching. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/ The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/ It contains multiple choice questions testing basic skills in reading/communications and mathematics. It has been administered since the 1980's and has always been a "secure" test. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/ Having to replace one of these "editions" because of a breach of security would entail "significant cost." Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator. The importance of maintaining test security was emphasized during the training. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials. The training materials repeatedly warned that test administrators were not to open the test booklets. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Give examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet; Coach examinees during testing or alter or interfere with examinees' responses in any way; Make answer keys available to examinees; Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing; Fail to follow test administration directions specified in the test administration manuals; or Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule. Rule 6A-10.042, Florida Administrative Code, provides as follows: Maintenance of Test Security Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. Examinees shall not be given answer keys by any person. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following: All test materials shall be kept in secure, locked storage prior to and after administration of any test. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations. (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43, 45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that item. 7/ Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya. She did not try to hide from Ms. Noya that she was looking at an open test booklet. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day). Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 9th day of September, 2002.
Findings Of Fact At all times pertinent to the allegations in the Notice of Charges, the Respondent was employed as an Assistant Principal in the Dade County School System and held a continuing contract as a teacher. In December 1985, while employed as Assistant Principal at the Westview Middle School, he applied for placement on the roster of eligible candidates for appointment to positions as Principal or Assistant Principal in the Dade County School system. The Respondent's application was forwarded through appropriate channels to the Office of Management Selection where it was reviewed by Mr. Coleman, the Director. Mr. Coleman determined that the Respondent's application did not include the three performance evaluations rendered on him immediately prior to the submission of the application and, since in December 1984, the school board rule regarding this subject was changed to require "exceeds performance standards" evaluations on three prior ratings for an individual to be considered for principal/assistant principal positions, Mr. Coleman called the Respondent on the phone and spoke to him about this. At this point in time, Mr. Coleman already knew about an investigation that had been conducted regarding the Respondent shortly before the submission of his application involving an allegation that the Respondent had used excessive force in the disciplining of a student and he, Mr. Coleman, was satisfied that Respondent's application was not likely to be approved. As a result, he attempted to dissuade the Respondent from submitting the application but was unable to do so. When the application was received, it had only one evaluation form attached and, as a result, Ms. Mendez, Mr. Coleman's employee, contacted the Respondent again by telephone and requested that he submit the other two evaluations. It is at this point that Respondent claims he went to his personal file, extracted the two pertinent evaluation forms considering date only, and submitted them to the school board without looking to see what the rating was that appeared thereon. When received by the school board, the three ratings in question for the period August 1982 through June 1983, August 1983 through June 1984, and August 1984 through June 1985, all reflected that the overall assessment of the Respondent was that his performance was either above or exceeded performance expectations or standards. The three applications in question were prepared by Ms. Jerkins (August 1982 through June 1983) and Mr. Berteaux (August 1983 through June 1984 and August 1984 through June 1985). Ms. Jerkins categorically denies ever having rendered an annual performance evaluation on the Respondent with an exceeds performance standard rating notwithstanding what appears on the rating form bearing her signature contained in Petitioner's Composite Exhibit 4, dated June 20, 1983. This form reflects an "exceeds expected performance" standard. She rated him for the period as "meets expected performance standards." She did, on March 2, 1983, rate the Respondent "outstanding" in each listed category on a reference evaluation form relating to the Respondent's application for a position of Supervisor II in Computer Education. She feels that a rating of outstanding is appropriate for this purpose but she did not then and would not now rate him as exceeding the performance standards of an Assistant Principal. It is this Assistant Principal position to which the performance evaluation form submitted by the Respondent with his application for placement on the principal's roster relates. Respondent's contention that the reference evaluation of outstanding equates to an exceeds performance rating is not supported by the facts. With respect to the 1983/84 rating, Mr. Berteaux evaluated Respondent at the end of the school year and admittedly first evaluated him as having exceeded performance standards. A copy of this performance report was forwarded to the Respondent and reflected the "exceeded standards" rating. However, before being finalized through channels, the rating was changed by Mr. Berteaux as a result of his receipt of a report of investigation into an allegation that Respondent used excessive force against a student. When the report of investigation was given to Mr. Berteaux, apparently indicating that the allegation of excessive force was well-founded, he advised the Respondent by telephone that the evaluation which previously indicated that Respondent "exceeds" performance standards would be lowered to a rating that the Respondent "meets" performance standards. This was done, and constitutes the official and final evaluation of the Respondent for that period of time. Mr. Berteaux cannot say with any certainty whether a copy of the amended evaluation form was furnished to the Respondent. However, he is certain that he personally spoke with the Respondent about it by telephone because Respondent had already gone on summer vacation when the evaluation was completed and advised him of the lowering of the performance evaluation. It is most likely that a copy of the lowered evaluation was not given to the Respondent. In fact, that form which appears in the school board's records bears a signature of the Respondent which does not appear to be his bona fide signature. There was no evidence presented by the Petitioner to establish that the 1984/85 evaluation which bears a rating of above performance expectations was inaccurate and there is no allegation in the notice of charges that any impropriety exists with regard to that evaluation form. On February 24, 1986, Respondent appeared with counsel before Judge Norman C. Rotteger, Jr., in the United States District Court for the Southern District of Florida, and entered a plea of guilty to the charge of forging a U.S. Treasury check in violation of Title XVIII, U.S. Code, Section 495. A finding of guilty was entered but imposition of a sentence of confinement was withheld. Respondent was placed on probation for a period of three years. Mr. Torelli does not deny having placed his mother's name on the Social Security check made payable to her even though she had been deceased for a period in excess of one year at the time he did so. He contends, however, that a representative of the Social Security Administration office in Hollywood, Florida, to whom he spoke in regard to the disposition of the check, advised him that this was the appropriate thing to do. Respondent failed to present any evidence other than his own testimony to that effect, however. He presented the testimony of the two Social Security Administration employees with whom he allegedly spoke both of whom denied having told him to sign or cash his mother's Social Security check and both of whom contended that it is not Social Security policy to do so. Neither has ever advised a client to sign or cash a Social Security check that was not made out to them. Absent any evidence to the contrary other than the testimony of the Respondent, therefore, it is found that the Respondent did forge his mother's name to the check and cash it; that such action was without proper authority and was unlawful; and that he did so of his own volition. Respondent indicates that he has presented evidence to the U.S. Attorney which will result in the finding of guilty being vacated. Such evidence was not presented at this hearing and for the purposes of this hearing, it is found that the conviction was proper and properly entered. Both Mr. Coleman and Dr. Gray indicated that the actions of the Respondent as outlined above including the misrepresentation of his qualifications in regard to his application for placement on the principal's roster and his conviction in federal district court would have a substantial impact on Respondent's fitness to serve within the school system. Because it is imperative that the principal be able to have and place trust in his employees, Dr. Gray concluded that the Respondent's actions in both regards pose a substantial question as to his integrity and have a serious bearing on his capabilities to function as an educator. They have affected his ability to serve as a role model and as an example to his students.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is therefore recommended that the Respondent, Edmond G. Torelli, be dismissed from employment with the School Board of Dade County effective as of the date of the final order of dismissal. RECOMMENDED in Tallahassee, this 9th day of October, 1986. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2071 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case by Petitioner. Respondent failed to submit Proposed Findings of Fact in a timely fashion. Accepted and incorporated in Finding of Fact 1. Accepted but not specifically related. Accepted and incorporated in Finding of Fact 7. Accepted and incorporated in Finding of Facts 8 and 9. Incorporated in Finding of Facts 2 and 3. Incorporated in Finding of Facts 2, 4 and 5. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 16. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 16. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Edmond G. Torelli 3905 N.W. 76 Terrace Davie, Florida 33319 Dr. Leonard Britton Superintendent Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October 1994.
The Issue The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida Administrative Code Rule 6B-1.006, as alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the field of mathematics, and has been issued Florida Educator’s Certificate No. 130749. This certificate is valid through June 30, 2011. At all times pertinent hereto, Respondent was employed by the Duval County School Board as a sixth-grade mathematics teacher at Twin Lakes Academy Middle School in the Duval County School District. Respondent has been a teacher for over 40 years and has taught mathematics at Twin Lakes Academy Middle School for six years. On March 7, 2008, Respondent signed an “FCAT Administration and Security Agreement.” By signing the security agreement, Respondent acknowledged that he had read the 2008 FCAT SSS Reading, Mathematics, and Science Test Administration Manual, and that he would administer the FCAT exam in accordance to procedures stipulated in the manual. Page 30 of the manual stated in bold print that Respondent “may not . . . discuss test items or answers with students, even after all test materials have been returned.” By signing the FCAT Administration and Security Agreement, Respondent promised to avoid the following prohibited activities: Reading the passages, test items, or performance tasks; Revealing the passages, test items, or performance tasks; Copying the passages, test items, or performance tasks; Explaining or reading test items, or passages for students; Changing or otherwise interfering with students responses to test items; Causing achievement of schools to be inaccurately measured or reported; Copying or reading student responses. By signing the security agreement, Respondent agreed to abide by Florida Administrative Code Rule 6A-10.042, and Section 1008.24, Florida Statutes, and acknowledged in part: The security of all test materials must be maintained before, during and after the test administration... * * * I will not disclose any information about the test items or engage in any acts that would violate the security of the FCAT and cause student achievement to be inaccurately represented or reported. In March 2008, after signing the security agreement, Respondent administered the FCAT to his sixth-grade mathematics class. The day after administering the FCAT, Respondent asked the students in each of his five classes to write down questions they could remember from the FCAT. The testimony varied as to whether the requested information was limited to questions they did not understand, a single question, or simply questions and answers. However, it is clear that the requested information stemmed from the FCAT administration the previous day. Respondent collected the students’ written responses immediately after, with the intention of reviewing the students’ responses at a later date. There is no competent, persuasive evidence that Respondent intended to share the questions with anyone. After collecting the students’ written responses, Respondent placed them in a folder and then placed the folder in his personal briefcase to be taken home and locked in his private safe. Shortly thereafter, the school principal, Mr. Donald Nelson, received an email from a parent who is also a teacher at Twin Lakes Elementary School, stating that a security violation may have occurred with respect to the FCAT. Mr. Nelson immediately called Professional Practices and questioned the Respondent about the incident. In addition, he retrieved the folder with the students’ questions from Respondent. An investigation was conducted by Mr. Leroy Starling, an investigator for the Duval County School District, Mr. Nelson, and Mr. John Williams, the Director of Professional Standards for the school district. Randomly selected students were questioned individually, and students’ written responses as well as two letters written by the Respondent to Mr. Nelson were reviewed. As a result of the investigation, on April 4, 2008, Respondent was issued a letter of reprimand and suspended for ten days without pay. Respondent continued to teach his sixth-grade mathematic class during the ten days that he was suspended, despite the fact that he was not being paid to do so. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for the Florida Department of Education, testified that the FCAT is used as part of the accountability system for the state. The results from the FCAT results are used to determine if schools have made an adequate yearly progress, to assign school grades and to measure each student’s level of achievement. Ms. Ash further testified that due to the three-year process in developing test questions, selected questions are frequently re-used on the FCAT. As a result, pursuant to the FCAT security agreement, teachers are warned not to “check through books and return them to students after they have been collected or discuss test items or answers with students even after all test materials have been returned and testing has been completed because some items may be used on future tests.” There is no evidence presented that student achievement was inaccurately reported or misrepresented as a result of this incident. There is also no evidence that any of the questions on the FCAT were discarded or that any test scores were invalidated as a result of the incident. Respondent has received consistent excellent teaching reviews and has never been reprimanded before this incident. There is no evidence that Respondent acted inappropriately in any manner during the actual administration of the FCAT.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of March, 2010, 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 19th day of March, 2010.
The Issue The issue for consideration in this case is whether Respondent’s certification as a teacher in Florida should be disciplined because of the matters alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and certification of teachers in Florida and for the regulation of the teaching profession in this state. Respondent was certified under Florida Educator’s Certificate Number 517092, covering the areas of Early Childhood Education and Elementary Education, with an English Speakers of Other Languages endorsement, through June 30, 1999. On or about April 4, 1995, Respondent was employed as a second-grade teacher at Tuttle Elementary School in Sarasota County, Florida. She was assigned homeroom number R5, which was contiguous to room R6, assigned to Ms. Frosch, also a second- grade teacher. Room R5 was the end room of four rooms in a row. Room D7 was assigned to Ms. Davenport, and Room D8 was assigned to Ms. Wajda. Respondent taught a self-contained second grade class made up of students, some of whom were learning disabled, some emotionally handicapped, and some who spoke English as a second language. These students took their special classes, (music, art, etc.), at a time other than when the continuous progress students took them. Tuttle Elementary School was scheduled to administer the National Achievement Test on April 4 - 18, 1995. Prior to April 4, Ms. Kurtin, an Assistant Principal at Tuttle, had scheduled a series of meetings in advance of the testing to brief the teachers and advise them of the ground rules for the testing process. Second grade teachers were scheduled to meet at 1:45 p.m. on Tuesday, March 22, 1995, and English Speakers of Other Language (ESOL) teachers were scheduled to meet at 3:00 p.m. on Wednesday, March 23, 1995. Respondent attended at least one of those meetings. At the meetings, the teachers were briefed on, among other matters, how to maintain security of the test booklets. Included was an injunction not to teach the students directly from the booklets in advance of testing. The test materials for the students were given to the individual teachers the day before the testing was to begin. The teachers had received their test manuals earlier and were instructed to safeguard them to insure the integrity of the test process. Testing for the second grade was to last between 25 to 40 minutes per day over a period of 6 to 7 days. Students in grades 1 through 3 were to place their answers directly into the test booklets. Students in grades 4 and 5 were provided answer sheets on which to place their answers. After each test session, the teachers were to collect the test booklets and, prior to turning them in for grading, go through them to erase or otherwise remove extraneous marks on the pages which might confuse the machine grading of the students’ test answers. After cleaning, the test booklets were to be secured until the next testing session or the end of the testing. One day during the testing period in the spring of 1995, Ms. Frosch was alone in her classroom while her students were at specials after the morning testing session. At approximately 10:15 a.m. she went outside her room for a break. When she went back inside, she heard Respondent talking with her class in the Respondent’s classroom. Though there is what appears to be a brick wall between Ms. Frosch’s room and that of the Respondent, Ms. Frosch contends she was able to hear what Respondent was saying, and it became clear to her that Respondent was reading exactly from the test booklet. In fact, Ms. Frosch took out her own booklet and was able to follow along with the Respondent. She heard Respondent read question 7, and heard the students give the answer. If a child gave the wrong answer, Respondent corrected the answer. Ms. Frosch, feeling that someone else should verify what was happening, went through the door which separated her room from that of Ms. Davenport, her team teacher. The desks of Ms. Frosch and Ms. Davenport were both near the doorway which joined their rooms. Frosch had Davenport come into her room and listen at the wall. Ms. Davenport heard Respondent reading word-for- word from the test booklet. By this time, Respondent was at question 12, and Ms. Davenport was able to follow along in Frosch’s test booklet. Though she only stayed to listen a short while, Davenport was shocked to hear what was going on because the material being discussed was on the test scheduled to be administered the next day. Ms. Frosch also got Ms. Wajda, from the next room down, and her aide, Ms. Salazar, to come to the room to listen also. Both Wajda and Salazar also heard Respondent reading the test questions aloud, word-for-word, to her students. By this time, Respondent was on page 11 of the booklet at questions 34 and 35. They heard Respondent read a question and the four possible answers, and then respond if the child selected the correct answer. Rather than use the in-room call button, Ms. Wajda went to get Ms. Kurtin, the Assistant Principal, at her office. She did this because in her opinion, it was inappropriate for Respondent to be doing what she was doing. Ms. Kurtin believed she was being taken to the Respondent’s room for a student discipline problem. She had no idea of the nature of the situation until she got there. When Ms. Kurtin reached Respondent’s room, she observed Respondent seated at her desk reading from what appeared to be a test booklet. Kurtin could not say that Respondent was reading from it verbatim. When questioned by Kurtin, Respondent said she was practice testing, but was changing the words in the questions. Ms. Kurtin advised respondent that it was inappropriate to use the real test booklets to practice from and to please put them away. Respondent did as Ms. Kurtin asked, but Kurtin felt nonetheless that she had to report the matter, which she did. Respondent has been a teacher since graduation from college in 1981. She started teaching at Tuttle at the second- grade level during the 1990-1991 school year. During the 1994- 1995 school year, the year in issue, she was a regular classroom teacher with 25 students of varying cultures and abilities. Only 6 of her students were regular students. The others were learning disabled, emotionally handicapped, or ESOL students. Respondent had worked with Ms. Frosch and some of the other teachers on teams for five years. She claims to be a soft- spoken individual and does not believe she could have been heard through the brick wall which separated her room from that of Ms. Frosch. She claims that as an African-American, she did not fully fit in with the other teachers, and her opinions and ideas were not given the same deference and consideration as those of the others. Notwithstanding that all of the other witnesses claimed to have experienced a congenial working, if not social, relationship with Respondent, she asserts that Frosh and Davenport would comment about her classroom discipline skills to the Principal who would, in turn, report the comments to her. Ms. Chester has administered the NAT many times before and knows the requirements for test security. On April 4, 1995, the day in issue, she arrived at school at the normal time. Because it was a test day and students normally pulled out were not taken, she had all her students with her in the room. For some reason not fully disclosed, her students were not to be tested until the next day. To spend the time productively, without following the regular lesson plan while the students were still coming in, she took her teacher’s manual, not, she claims, the actual test booklet, and started working with the children. She is adamant that she was not reading from the actual test manual. Though not made clear by the evidence at trial, it is most likely that she was reading from the teachers’ test booklet which, while not given to the students, contains the same materials and questions. Respondent is puzzled by several matters. She does not accept that the complaining teachers could have heard her as they claim, because she speaks so softly. There is, however, a door on either side of the room which joins it to the outside and to the adjoining room. She does not understand how she could have progressed from question 7 or 10, where she was first heard, to questions 34 or 35, where she was reading when Ms. Kurtin came in. It is not clear how much time passed from Frosch’s initial alert until the arrival of Ms. Kurtin. Finally, she does not know why the in-room call button was not used to summon Ms. Kurtin instead of Ms. Wajda going to get her in person. None of these questions has any material impact on the ultimate determination of the issue of whether Respondent was reading from the test manual. None of the teachers who testified on behalf of the Petitioner was of the opinion that the Respondent’s action in reading to her students from the test booklet was harmful to their mental health or physical safety. By the same token, no one opined that her actions exposed the students to unnecessary embarrassment or disparagement. No independent evidence was introduced by the Petitioner to support such allegations. It was accepted, however, and it is found, that Respondent’s use of the test booklet to practice with the children, regardless of her belief that the students would not remember enough to do them any good, was not professionally honest. It is irrelevant that no benefit to the Respondent could have resulted from the possibility that her students might have scored higher on the tests than they might have had she not read the questions to them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order finding Respondent guilty of exposing her students to conditions harmful to learning and of failing to maintain honesty in all professional dealings. It is further recommended that her certification as a teacher be placed on probation for one year, that she be reprimanded, and that she be required to take at least six hours of continuing education in the area of teacher ethics and testing procedures. DONE AND ENTERED this 13th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1998. COPIES FURNISHED: Barbara J. Staros, Esquire 215 South Monroe Street Second Floor Tallahassee, Florida 32301 Stanley Marable, Esquire 677 North Washington Boulevard Sarasota, Florida 34236 Kathleen M. Richards Executive Director Educational Practices Commission 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Iris Anderson, Program Specialist Procedural Safeguard Department of Education Bureau of Education for Exceptional Students 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 63.8%, with 230 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. The Petitioner also urges that the administration of the exam was unfair and that he had insufficient time to take the morning session of the exam. He suffers from low blood sugar, and during the morning exam session he felt faint. The exam proctor had prohibited all candidates from bringing candy or Cokes into the examination room, and therefore, he had to leave the exam while it was in progress to get a Coca-Cola in order to elevate his blood sugar. He claims he had to walk a very long way to find a Coke machine, and that as a result, he lost significant time from the morning session of the exam. However, unrebutted exam records show that only one candidate was still in the examination room during the last 50 minutes of the morning session, and that candidate was not the Petitioner. Therefore, the Petitioner has not established that he lacked sufficient time to complete the morning session of the exam due to his low blood sugar problems. It is also asserted by the Petitioner that he was given insufficient time to review his examination and to identify problems in the grading of his examination. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session concluded at 1:00 p.m. on that date, but unrebutted records of this review establish that the Petitioner completed his review and left the review room at 12:28 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2798 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 4. Adopted in Finding 5. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).
Findings Of Fact James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures, and has been treated with multiple anti-epileptic medications without success. Currently, Petitioner experiences seizures on an almost daily basis. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test); concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work, leisure, health, and safety; and the onset is before 18 years. 12 In determining an individual’s eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. Respondent’s evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner’s adaptive functioning. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum. The onset of Petitioner’s condition occurred prior to his eighteen birthday.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997. COPIES FURNISHED: Susan C. Champion, Parent 104 Lake Gem Drive Longwood, Florida 32750 Eric Dunlap, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Peter W. Newton, violated Pinellas County School Board Policies 8.25(1)(k), (v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and, if so, what discipline should be imposed by Petitioner, Pinellas County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a teacher of emotionally handicapped third graders at Skycrest Elementary School and has been employed by Petitioner as a teacher of emotionally handicapped children for six years. Petitioner assesses student and instructional performance utilizing the Pinellas Instructional Assessment Portfolio which consists of two tests: the Parallel Reading- Florida Comprehensive Assessment Test and the Parallel Math- Florida Comprehensive Assessment Test. These tests test students on the Sunshine State Standards which are the Florida Department of Education Standards for student achievement in Florida public schools. These tests are given three times during each school year. Emotionally handicapped students are required to take the Parallel Reading-Florida Comprehensive Assessment Test and the Parallel Math-Florida Comprehensive Assessment Test. Published rules govern teacher conduct in administering these tests. Teachers can only make general statements of encouragement to students. A teacher cannot read any portion of the tests to the students nor can a teacher provide input or comment on a student's answers or failure to answer. The Florida Comprehensive Assessment Test is a state- wide assessment test given to particular grades annually. The Florida Department of Education has mandated that third grade students achieve a passing score on the Florida Comprehensive Assessment Test be allowed to progress into the fourth grade. It is suggested that, in addition to the student and instructional assessment function, the district-wide Parallel Reading-Florida Comprehensive Assessment and Parallel Math- Florida Comprehensive Assessment Tests prepare students for the state-wide Florida Comprehensive Assessment Test. Respondent acknowledged understanding the published rules prohibiting providing assistance to his students while they took the Parallel Reading-Florida Comprehensive Assessment Test. He also acknowledged assisting his students during the December 2002 test in ways prohibited by those same rules. Two full school days are dedicated to each portion of the test. Over the course of the test week, Respondent gave prohibited assistance to each of his nine emotionally handicapped students. Some of Respondent's students were apparently overwhelmed by the test and did not make a sincere effort. After examining their test booklets, he encouraged these students to go back and to continue trying. He examined answers to multiple-choice questions and sent students back to work harder on an answer, indicating by inference that the given answer to a particular question was incorrect. He read words and phrases to students, sounded out words, and pointed out sections of the text in which an answer could be found. While it does not appear that Respondent actually gave any student the correct answer to a question, he certainly directed students to answers. Respondent acknowledged the inappropriateness of his conduct but offered the excuse that he was trying to give his students the confidence of believing in themselves, that they could make passing scores on the Florida Comprehensive Assessment Test and advance to the fourth grade. Respondent's admittedly inappropriate conduct does not appear to be motivated by anything other than a misguided attempt to help his students by instilling the confidence that would necessarily result from the belief that they had done well on the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and being mindful that Petitioner, as stated in its Policy 8.25, Disciplinary Guidelines for Employees, "follows a system of progressive discipline," and giving full consideration to the apparent misguided motivation of Respondent, it is RECOMMENDED that Petitioner reprimand Respondent for his conduct and suspend him without pay from February 25, 2003, through the end of the 2002-2003 school year. DONE AND ENTERED this 19th day of August, 2003, 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 August, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. 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 June, 2002.
