The Issue The issue is whether Petitioner's Charge of Discrimination (Complaint) was timely filed, so that his allegations of discrimination can be investigated.
Findings Of Fact Petitioner is a Chinese national and was hired by USF in 1994 as an assistant professor in the Department of Government and International Affairs. USF is a state university. In 2002, Petitioner was promoted to an associate professor at USF. On an undisclosed date, he was given tenure. Petitioner's duties included teaching, research, publication, and service to the community. He also supervised graduate students in the preparation of a thesis for their studies. In 2010, Petitioner was suspended for one year. For violating the terms and conditions of his first suspension, on May 23, 2013, USF issued Petitioner a Notice of Suspension (Notice) informing him that he was suspended a second time, for two years without pay, from June 3, 2013, to August 6, 2015. This meant he had no regular Department, College, or University responsibilities for which he was needed, and he was not expected to be on campus during the suspension. Also, he had no teaching or work assignments during this period of time. Among other things, the Notice advised Petitioner that no employer contributions towards his benefits, including health insurance, would be made by USF during the two-year period. However, the Notice provided Petitioner with the name, email address, and telephone number of a University contact person to coordinate his benefits while he was suspended. During his suspension, Petitioner returned to China a number of times. On May 24, 2013, Petitioner sent an email to Dr. Dwayne Smith, Senior Vice Provost & Dean of the Office of Graduate Studies at USF, acknowledging his receipt of the Notice and calling his suspension a "racially discriminative and vindictive action." He further advised Dr. Smith that he would "make an open response to the whole university" and file a grievance regarding the suspension. On June 21, 2013, Petitioner filed an internal grievance regarding his suspension pursuant to the Collective Bargaining Agreement between USF and United Faculty of Florida (Union). On January 2, 2014, Petitioner filed a Notice of Arbitration with USF's Office of the Provost, indicating his intent to arbitrate the matter. However, the Union subsequently declined to proceed with arbitration, no arbitration was scheduled or conducted, and the grievance was withdrawn. Petitioner agrees that USF did not prevent him from arbitrating the dispute. On May 4, 2015, or a few months before his suspension ended, Petitioner filed his Complaint with the EEOC. The Complaint was later referred to the FCHR and was date-stamped on January 25, 2016. It alleged race and national origin discrimination and retaliation. Whether there is a workshare agreement between the two agencies that allows the EEOC complaint to operate as a dual filing with the FCHR, with the same filing date, is not of record. In any event, for purposes of this Recommended Order, it makes no difference whether the filing date is May 4, 2015, or January 25, 2016. The allegations in the Complaint were investigated by an FCHR investigator. Among other things, she conducted a 90-minute, unrecorded telephonic interview with Petitioner in April 2016 and reviewed his responses to a questionnaire. Although Petitioner contended at hearing that he raised additional allegations during the telephone interview, there is no credible evidence to support this claim. The investigator also spoke with persons at USF and received USF's written reply to the charges. After the review was completed, the FCHR determined the most recent allegation of discipline occurred on May 23, 2013, the Complaint was untimely, and it had no jurisdiction to investigate the charges. Other than the suspension, the Complaint does not identify any other discrete acts of discrimination or retaliation during the 365 days preceding the date of filing the Complaint. The deadline for filing a complaint regarding the suspension expired in May 2014. Petitioner did not seek to amend his Complaint to add new charges before the FCHR began its investigation. At hearing, however, he testified regarding a number of grievances, including a less-than-satisfactory evaluation received for the fall semester 2015; difficulty in arranging premium payments on his health insurance and changing coverage from family to single while he was suspended; unfair student evaluations he received for two courses he taught in the fall of 2015; and his inability to supervise a graduate student's literature review in the fall of 2015. All of these events occurred long after he was suspended, involved different actors and types of conduct, were dissimilar from each other, and should have been raised by timely amending his Complaint or by filing a new complaint with the FCHR. Petitioner offered no proof that he was misled or lulled into inaction by USF or FCHR. Rather, Petitioner explained that he waited to file his Complaint with the EEOC until after the grievance was resolved, and he had not yet retained an attorney to represent him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief as untimely filed. DONE AND ENTERED this 21st day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of February, 2017. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Richard F. Meyers, Esquire The Meyers Firm, P.A. Post Office Box 16308 Tampa, Florida 33687-6308 (eServed) Craig S. Dawson, Esquire Office of the General Counsel University of South Florida 4202 East Fowler Avenue, CGS301 Tampa, Florida 33620-9951 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Respondent is a tenured language arts teacher within the Duval County School District of approximately 21 years service, 17 of those years as a senior high school teacher. At times relevant to this inquiry, the Respondent was a language arts teacher at the senior high school level in the Duval County School District. As such, she was responsible for carrying out the requirements of the Jack Gordon writing program set forth in Section 236.1223 Florida Statutes. The purpose of the Jack Gordon writing program is expressed at Sections 236.1223(2), 3 (a) and (4), Florida Statutes, where it states: Any school district which establishes a separate course for teaching writing skills, or which demonstrates that teaching writing skills is a primary emphasis in English courses included in its existing curriculum and required as a prerequisite for graduation, may receive categorical funds as provided in this section in addition to the funds it receives from the Florida Education Finance Program. To be eligible to receive funds under this section, a school district shall certify to the Department of Education: That instruction in writing skills is provided in classes which contain no more than 28 students per teacher and that no teacher who teaches writing skills as part of the instruction in an English class that is a class required by the school district as a prerequisite for graduation teaches more than 100 students per day; however, the Commissioner of Education may approve alternative staffing plans, on an annual basis, submitted by a local district for those schools wherein there is a demonstrated lack of classroom space or a showing is made that the total instructional program requires teaching to instruct classes in English and another subject or subjects; * * * The Commissioner of Education shall establish criteria for determining whether the teaching of writing skills is a primary emphasis in an existing English course which a school district has required to be a prerequisite for graduation. Included in the criteria shall be a requirement that a student in such course write not less than one essay, report, story, or other work product each week of class. Having opted to participate in the Jack Gordon writing program, the Duval County School District has established its own guidelines and expectations of those teachers including Respondent who are responsible for the implementation of the program. Petitioner's Exhibit No. 32 admitted into evidence describes the duties of the Duval teachers who participate in the program. It reiterates the requirement of the one essay, report, story or work product for each week of class found in the statute. It makes it incumbent upon the teacher to design a lesson plan for each of the writing assignments and suggests ideas for those writing assignments. It requires the teacher to evaluate the product in a constructive manner and provide substantial assistance in developing writing confidence. It speaks in terms of a master log of writing assignments kept by the teacher or the requirement for students to keep a log. The system that was employed in this case was one in which the student maintained the writing log. The teacher is expected to keep records of the assigned products and methods of evaluation. The teacher is called upon to retain one student folder developed in the year as well as class papers written during the first quarter and fourth quarter and to be prepared to submit for audit purposes sample student folders and two sets of class papers. Under the category of guidelines more specific discussion is made concerning writing assignments. In addition, Respondent and other language arts teachers involved in the program were expected to ensure that the student logs were maintained reflecting the writing assignments and updated to coincide with the requirement for one writing assignment for each school week. The teachers were to identify the writing assignments in their lesson plans and were called upon to record the grades which the students received on the individual writing assignments in their grade books. Under the circumstances, it is inferred that contemporaneous provision of assignment to the students, preparation of the writing paper by the student, grading of the student paper, placement of the grade on the student log and grade book and placement of the paper in the student folder was anticipated. In this connection at times relevant to the inquiry the Duval County School District used a quarter system with nine weeks in each grading period for a total of 36 weeks. Consequently, 36 writing assignments were to be prepared under the auspices of the program. As identified by Carlotta Ray, Director of Language Arts for the Duval County School Board, and the person responsible for monitoring the Jack Gordon writing program in that system, custom and practice allows the language arts teachers as much as two weeks time beyond the week of an assignment to grade and return the student paper. Beyond that time efforts on the part of the teacher are considered to be out of compliance with the requirements of routine assignments and grading contemplated by the program. Respondent was aware of her obligations as a language arts teacher carrying forth the Jack Gordon writing program. The problems which she encountered in performing those tasks, which will be discussed, were not associated with a lack of understanding of the requirements nor an inability to perform at an acceptable level in carrying out her duties of preparing an assignment, grading an assignment, and the affiliated functions of records keeping by her students and the Respondent. Her difficulties were based upon a failure to perform the duties assigned in the program. In defending her recalcitrance in meeting her responsibilities, Respondent attributes her performance to health problems both mental and physical and to a lack of sensitivity and cooperation by administrators in the school system in helping her to redress her inadequate performance. For reasons that will be described, her performance was gravely below that of what was expected of her in carrying out the Jack Gordon writing program and her attempts to explain these inadequacies are not redeeming. Until the school year 1986-87, Respondent had performed satisfactorily as a language arts teacher. In that school year Respondent was teaching at Ribault Senior High School. On March 13, 1987 Pat Cascone, a resource teacher who was assigned as a program representative for language arts and reading made a spot check of the Jack Gordon writing program student folders at Ribault. Ms. Cascone was accompanied by Ms. Ray as part of the school district's activities in monitoring the Jack Gordon program. On the date in question Ms. Ray had requested that all student folders be placed in a single room to allow Ms. Cascone and Ms. Ray to examine them. All language arts teachers complied, save two. One of the teachers who did not comply was the Respondent. When the principal at Ribault, James Williams, Jr., learned that the Respondent had not provided the student folders for examination by Ms. Cascone and Ms. Ray, he inquired of the Respondent where the folders might be found. Upon learning that the folders were at home, according to Respondent, he told the Respondent to go home and retrieve those folders. Inexplicably Respondent refused to honor his instruction. She would have had ample time to go to her home and return with the folders before Ms. Ray and Ms. Cascone departed the school. Rather than provide the folders for examination, Respondent went to the room where Ms. Ray and Ms. Cascone were checking the student folders and made some attempt at explaining herself. At this time she became very emotional and made some remarks concerning incompetency in her personal and professional life which she was trying to correct. She wrote a note, a copy of which may be found as Petitioner's Exhibit No. 33, describing what she said was incompetency in her personal life as well as "here", taken to mean at school. In the note she talked about trying very hard to correct "all" and the idea that she would have things ready for the auditors. In the final analysis, Respondent did not present any information concerning students within the Jack Gordon writing program for whom she was responsible, thereby denying Ms. Ray and Ms. Cascone the ability to ascertain the progress of those students and Respondent's compliance with the requirements of the program. Respondent's explanation concerning her situation at about the time that the March 13, 1987 spot check of the Jack Gordon writing materials was made at Ribault High School does not suffice as an excuse for her noncompliance with the requests of the district officials who monitor the program and the instructions of her principal to bring those materials to the room were the inspection was taking place. Respondent also missed a meeting on March 16, 1987, called to discuss the problems that had been encountered at the time of the March 13, 1987 spot check performed by Ms. Cascone and Ms. Ray concerning the program. As a consequence of the problems that were encountered on March 13, 1987, Respondent received diminished scores on her annual evaluation as compared with the two prior years. Nonetheless, she was rated as satisfactory in the evaluation performed on March 17, 1987. A comparison of evaluations for March, 1985; March, 1986 and March, 1987 may be made by examining Petitioner's Exhibit Nos. 34, 35 and 37 respectively. The former two evaluations depicted satisfactory in each category whereas the latter evaluation had four deficiency areas. In presenting the evaluation of March 17, 1987, Mr. Williams reminded Respondent of the serious nature of the Jack Gordon writing program and the need to comply with all applicable rules and regulations. The problems experienced in the annual evaluation of March 17, 1987, constituted the first occasion at which Respondent had been criticized in her annual evaluation in any category. Within the school year 1986-87, Respondent acknowledged that all student work may not have been in the sequence that was contemplated by the Jack Gordon Program; however, she testified that the materials had been caught up and submitted by the end of that year. On a related topic, she acknowledged that contrary to school policy she had taken the Jack Gordon student folders home. Respondent's teaching assignment for the school year 1987-88 was to Ribault Senior High as a language arts teacher. On November 12, 1987, Ms. Ray did a further spot check at Ribault High School. She discovered that the same two teachers who had had problems before in the March 13, 1987 evaluation presented problems on this occasion. Those persons were the Respondent and Elaine Dealing. Unlike Respondent, Ms. Dealing had an excuse for noncompliance in that she had been on leave for the quarter and the failure to meet requirements of the Jack Gordon Program were attributable to one or more substitute teachers taking over her classes. As seen in Respondent's Exhibit No. 1, a monitoring form used by Ms. Ray, Respondent did not present any folders for examination. The only items which were available were eight personal letters as part of a writing assignment. The grading which was done by Respondent concerning those papers was sufficient. The unavailability of folders was not acceptable and Ms. Ray commented on that problem reminding the Respondent to make completion of those folders a priority. Respondent in her testimony says that when she was made aware of the request by Ms. Ray to audit Jack Gordon program materials, all she had available to her, that she could put her hands on real fast, were the personal letters. She turned these materials over to a Ms. McAfee to present to Ms. Ray. No contact was made between the Respondent and Ms. Ray on the occasion of this inspection. Mr. Williams memorialized the November 12, 1987 incident with Ms. Ray through a memorandum of November 17, 1987 directed to Respondent and signed as received by Respondent. A copy of that memorandum may be found as Petitioner's Exhibit No. 2. It comments to the Respondent that she did not have any folders available on November 12, 1987 and reminds her that this was the second straight year in which she was not in compliance with Jack Gordon requirements. The memorandum refers to the idea that further noncompliance would be reflected in the annual evaluation. On January 29, 1988, Mr. Williams wrote the Respondent and advised her of his intentions to rate her less than satisfactory in the upcoming March 15, 1988 annual evaluation. The reason for this decision was principally related to Respondent's problems in the Jack Gordon writing program. Contrary to the requirements of maintaining the Jack Gordon writing program student folders at school, between January 29, 1988 and the date of the annual evaluation of that year, on any occasion of a visit by Mr. Williams to examine the folders, the folders were not present at school. Mr. Williams attributed the failure to maintain the folders at school as a matter of personal stubbornness on the part of the Respondent. Having considered the explanations by Respondent at hearing, the failure to maintain the folders at school as required certainly can be characterized as stubbornness. Consequently on March 21, 1988, Respondent received an unsatisfactory annual evaluation form Mr. Williams as may be seen in a copy of that evaluation, Petitioner's Exhibit No. 39. Respondent was rated less than satisfactory because of problems with her compliance with the Jack Gordon writing program. Respondent offered no specific contest to the finding of unsatisfactory in her 1988 evaluation. Respondent's suggestion concerning the 1987-88 school year in which she says that her Jack Gordon writing program work was current through the end of that school year is not accepted. Following the finding of unsatisfactory performance in March, 1988, Mr. Williams did not see any of the student folders of Respondent. He had required that all Jack Gordon teachers turn in those folders as part of their year end checkout from school. Respondent did not submit her folders at the time of checkout and had her salary payment delayed as a consequence. Contrary to policy she had taken those folders home with her at the end of the school year and did not turn them in until late July or early August, much beyond the end of the 1987-88 school year. Although Respondent did not request reassignment, she was transferred to Andrew Jackson High School for the school year 1988-89. Following that assignment she did not contest the decision of the school board to place her in that position. Her principal for the 1988-89 school year was Jack Shanklin. He was aware of the prior less than satisfactory rating Respondent had received in the school year 1987-88 related to noncompliance with the requirements of the Jack Gordon writing program. Mr. Shanklin met with the Respondent in preplanning at the beginning of that school year and discussed those prior circumstances and offered help to her if she felt it was needed. In reply, Respondent stated that she understood what the problem was, without specifically mentioning what she meant by that remark and indicated that she would not allow it to happen again. Mr. Shanklin reminded Respondent that if she would comply with the Jack Gordon program requirements she would not have a problem in getting along with Mr. Shanklin. Respondent gave her further assurance to Mr. Shanklin that she was going to comply with that program and would let him know if she was having any difficulties and that she just wanted to get a fresh start. To monitor Respondent's performance Mr. Shanklin appointed Barbara Short, Assistant Principal for Curriculum at Andrew Jackson High School, to act as supervisor of the Respondent related to compliance with the Jack Gordon writing program. In November, 1988, Ms. Ray made a limited check of Jack Gordon student folders at Andrew Jackson High School. This representative sampling included five folders from the Respondent and they were in compliance with requirements. Ms. Ray made Mr. Shanklin aware that the folders submitted were satisfactory and how pleased she was with Respondent's improvement compared to previous surveys. Mr. Shanklin followed this up by making Respondent aware of his pleasure with her apparent performance. As is contemplated with a teacher who has been found unsatisfactory in a previous academic year, a midyear evaluation was made in December, 1988. In preparing this evaluation Mr. Shanklin observed Respondent's classroom performance as well as being aware of the apparent compliance with the Jack Gordon writing program as evidenced in the November, 1988 spot check by Ms. Ray. Respondent was found to be progressing satisfactorily. The school district scheduled and performed a full audit of the Jack Gordon writing program at Andrew Jackson High School on February 21, 1989. Respondent had been made aware of the pending audit approximately a week before. Leading up to the audit Respondent had told Ms. Short, Ms. Cascone and Mark Nichols, the Language Arts Department Chairman at Andrew Jackson High School, that she would be prepared for the audit. At a Saturday morning meeting with Mr. Nichols three days before the scheduled audit Respondent assured him that she would be ready. Prior to the audit Respondent had never told anyone that she was having any difficulty getting ready for the audit or that she needed any assistance in preparing for the audit or had experienced any difficulty with compliance with the Jack Gordon writing program since coming to her new school. On the day of the audit Respondent's folders were not ready. Respondent acknowledges that her folders were out of compliance at that time. She did not present her folders to the auditor at the designated time and place. When Ms. Short inquired of Respondent at Respondent's room concerning the student folders Respondent told her that she only needed 10 to 15 minutes to have them ready for the auditors. Respondent then went to the auditors without her folders and as she describes it, "fell apart with them." On the day following the audit, Mr. Shanklin met with the Respondent and asked her if there was a reason why she was unable to provide the student folders to the auditors and why she was not ready for the audit, especially since she had told other personnel prior to the audit that she would be ready. Respondent had no explanation. She did say that she had her Jack Gordon writing program assignments at home. Mr. Shanklin advised her to bring them to school on the following day. On February 23, 1989, Respondent produced for her principal a disorganized stack of classroom papers for her five periods of Jack Gordon writing program classes. The detailed examination of these materials made by Ms. Short revealed that with the exception of one class period that had been reviewed in November, 1988 by Ms. Ray, the Respondent's Jack Gordon materials were not in compliance with requirements. Some of the class assignments in the Jack Gordon writing program had not been graded since the beginning of the school year. Respondent acknowledges that between November 1988 and February 1989 a number of student folders were at her home on a rotating basis. Again this is contrary to school district policy. While Respondent and others have identified the fact that a certain amount of time outside the school day was necessary to comply with the dictates of the Jack Gordon writing program, this did not justify carrying the student folders home. The folders could have been left at school and the individual papers graded at home and returned to the folders. Having been made aware of the extent of the problems, Mr. Shanklin gave Respondent until April 5, 1989, to bring her classes into compliance with the Jack Gordon writing program requirements. He placed her on a specific schedule for updating her folders as described in Petitioner's Exhibit No. 9 which is a memorandum to Ms. Thompson concerning the schedule. In addition, he extended the date of her annual evaluation until April 14, 1989 and advised her that if she failed to adhere to the compliance schedule which he was establishing he would find her to be unsatisfactory in the annual evaluation. Ms. Short was assigned to follow Respondent's progress in carrying out the requirements for gaining compliance. In an attempt to assist the Respondent in bringing her work into compliance, she was released from her cafeteria duty in one of the time blocks in the daily schedule. This was an opportunity unique to the Respondent compared to other teachers. Under the schedule for achieving compliance with the updates contemplated by Mr. Shanklin, Respondent was to have concluded those items related to her first period class on or before March 3, 1989. Her success in that endeavor is commented on in the Petitioner's Exhibit No. 12, a memorandum from Ms. Short to Mr. Shanklin. Leading into those comments, Ms. Short established that in her review of the Respondent's materials it was discovered that although the school year was in its third quarter at the time of the February 21, 1989 audit, Respondent had not graded any first period assignments since the end of the first quarter. Between February 23, 1989 and March 3, 1989, Respondent did catch up with some of the materials; however, folders for Wanda Massey and Katrina McClain were empty and no work had been graded for the year for those students and no student logs maintained. Sharon Batson and Jack Morris had been given credit in the grade book for completing two assignments, although their folders were devoid of any evidence of that. Nothing had been graded for 10 of the students in that class for the third nine weeks. For those 10 students, out of the 24 assigned to the class, at least four assignments should have been graded in the third quarter, even taking into account a two week leeway for grading as referred to before by Ms. Ray and as described in the facts. Concerning the second period class of the Jack Gordon Program, 14 students were enrolled in the program and Respondent had until March 10, 1989 to upgrade the work. Having considered the criticisms directed to Respondent's attempt at compliance with Mr. Shanklin's deadline for period two, as mentioned in Petitioner's Exhibit No. 14, a memorandum from Ms. Short to Mr. Shanklin, in the context of Respondent's explanations, only the remark concerning the fact that one student had two assignments missing from his folder is found to be an item for which Respondent is answerable. As contemplated by the schedule, Respondent was to have updated materials for her third period class on or before March 17, 1989. She was unable to turn in those materials on March 17, 1989, because of automobile problems and the work was subsequently submitted on March 20, 1989. This allowed the Respondent an additional opportunity over the intervening weekend to do work on that class. Fifteen students were enrolled in that class and none of the folders were found out of compliance when submitted on March 20, 1989. The schedule called for submission of information concerning the sixth period by March 23, 1989. This was a class in which 26 students were enrolled at the time of the attempt at remediation of Respondent's performance. At the due date this class continued to have a substantial number of problems concerning Respondent's performance in the Jack Gordon writing program. Respondent had not done a great deal between February 21, 1989 and March 23, 1989 to catch this class up. Related to the student Joseph Adams, no assignments or log could be found for his work in the second semester. For the student John Arwood the grade book showed credits given for assignment no. 17, but the assignment was missing from the folder and no assignments or log could be found for the second semester. For the students Anthony Barreras, Rollins Burk and Sherria Gadsden the folders contained graded work in the first semester; however, the grades were not posted in the grade book and no assignments or logs were found for the second semester. The student Denise Coakley was shown as being enrolled in the third nine weeks roll; however, no assignments or log were available for this student. Where the student Michelle Cook is shown in Petitioner's Exhibit No. 17, the report from Ms. Short to Mr. Shanklin concerning compliance with the deadlines for updating the six period class, that reference should be to Michael Cook. That student did not have grades posted for the first semester. The student Kelly Cone appeared in the second nine weeks roll; however, no folder or grades were posted in that period nor was any information found concerning this student in the second semester. Concerning the students Zachray Evans and Diana Stallworth, there was work from the first semester in the folders but no grades had been posted. For the students Michael Howard, Jerris Johnson, and Jason Kent, the student folders were empty, no grades were posted and no logs were found. For the student Arquilla McCoy, there was no student log or assignments for the first semester. For the student Cheree Odom, whom Ms. Short said was on the roll for the entire year, nothing had been placed in her folder for the first semester. Respondent explained that the first three or four weeks of the first semester Cheree Odom had been in the wrong class; however, this does not explain the lack of entries beyond that first three or four weeks. Respondent had until April 5, 1989 to bring her work into compliance related to the Jack Gordon Program for the seventh period. Petitioner's Exhibit No. 18 is a report from Ms. Short to Mr. Shanklin concerning Respondent's success in that attempt. Twenty students were enrolled in period seven at the time of the memorandum. For the students Roger Bearden, Katra Davis, Bo Browning, Micheal Liddell and Ted Myer there was no log or work in the folders for the second semester. For the student Richard Jenkins there was no log in the folder and he was missing 12 assignments; however, Respondent indicated that the student was often suspended. The students Charlie Johnson and Ron Morris had nothing in their folders for the second semester and were missing one or more assignments related to the first semester. Sonia Price, James O'Quinn, Charles Toliver, Erskin Townsend, Douglas Tyus and Anthony Wade had no assignments for one or more of the required assignments. Tonya Simmons was missing a student log for her assignments. Athena Snipes and Sabrina Souls had no work in their folders for the first semester, although grades were posted in the grade book in that semester. Having concluded the check of the individual class periods, Ms. Short made a further overall assessment of Respondent's compliance with the requirement to keep current with the work in the Jack Gordon Program beyond the deadlines imposed for checking the individual classrooms. A memorandum of her findings concerning this further evaluation may be found as Petitioner's Exhibit No. 20 which was prepared on April 12, 1989 and submitted from Ms. Short to Mr. Shanklin. What it finds is that Respondent, associated with the first period class after the folders had been checked on March 3, 1989, had not kept them current beyond that date. As of April 12, 1989, none of Respondent's first period Jack Gordon folders contained any assignment or log entry subsequent to writing assignment no. 24. Effective April 12, 1989, assignment 29 should have already been given and the next day assignment no. 30 would have been given. Using the two-week grace period identified by Ms. Ray, all activities in the program assignments should have been completed through assignment no. 27. In a similar vein, Respondent's second period folders which were checked a week later than the first period folders contain assignments up through no. 25 and the third and sixth periods had assignments up through no. 26 while the seventh period had assignments through no. 27. Therefore, period seven is the only one of the class periods which could said to be in compliance. In the memorandum which is Petitioner's Exhibit No. 20, Ms. Short noted that in reference to earlier reports made to Mr. Shanklin concerning individual class periods some of the folders still remained incomplete regarding logs and missing assignments. Respondent's testimony, to the effect that the observations in Petitioner's Exhibit No. 20 are questionable because Respondent was unable to place information into the folders due to Ms. Short's comment that the folders could not be touched unless Mr. Shanklin gave his permission, is not credited. Petitioner's Exhibit No. 20 describes the fact that between April 5, 1989 and April 12, 1989 Respondent had not taken advantage of the use of all folders in her free periods at school to do work in the folders. As evidenced in a memorandum from Respondent to Ms. Short a request was made to work on the folders at school on the weekend following April 14, 1989. This request was denied because of the lack of security control at the school over the weekend. On April 20, 1989, Mr. Shanklin wrote to the Respondent to advise her that the folders which had been maintained in Ms. Short's office during the monitoring activities following the February 23, 1989 schedule of compliance directed by Mr. Shanklin could be removed from Ms. Short's office during the day. This did not allow the Respondent to take the folders home over night or on the weekend. The memorandum advised the Respondent that, as had been case in the entire episode, Respondent was at liberty to take home sets of assignments for purposes of grading. Nothing in any of the arrangements made by Mr. Shanklin following his decision to order specific compliance after February 23, 1989, were so inhibiting that they did not allow Respondent to honor Mr. Shanklin's instructions. In a more general sense, nothing done by any of the administrators in the relevant period of discussion kept the Respondent from performing her duties related to the Jack Gordon writing program. Other teachers were able to comply and Respondent should have been able to do so as well. Petitioner's Exhibit No. 25 is the memorandum of April 20, 1989. It was entered in response to Respondent's request to have the opportunity to take the folders out and work on them. On April 13, 1989, Respondent sent a memorandum to Mr. Shanklin asking that he make arrangements to have Ms. Ray and Ms. Cascone review her Jack Gordon materials. She also requested that Mr. Nichols be in attendance in this review. Mr. Shanklin was unwilling to allow Mr. Nichols to leave his duties to attend a review. He did honor the request to contact Ms. Ray and Ms. Cascone. In this matter, Mr. Shanklin did not encourage the Respondent to have this assessment made by Ms. Ray and Ms. Cascone. In fact, he told Respondent that it would not help and more than likely would be adverse to her position. Respondent persisted in her request. This arrangement came about at a time when the annual evaluation of April 14, 1989 was imminent. Prior to the visit by Ms. Ray and Ms. Cascone Respondent received her annual evaluation of April 14, 1989. A copy may be found as Petitioner's Exhibit No. 41. It was unsatisfactory based upon the problems that had occurred in Respondent's performance related to the Jack Gordon writing program. This was a performance for which she had no reasonable explanation. The evaluation was correct in the portrayal of the unsatisfactory performance. On April 25, 1989, Ms. Ray and Ms. Cascone reviewed the Respondent's Jack Gordon student folders. The review showed that the Respondent's folders were not in compliance with the requirements of that program. At the time of the review assignment no. 31 should have already been given. Allowing the two assignment leeway for compliance, assignment no. 29 should have been completed. Ms. Ray rendered a report to Mr. Shanklin on April 27, 1989 concerning her findings in the evaluation of Respondent's Jack Gordon program materials. A copy of that report may be found as Petitioner's Exhibit No. 26. She found graded student papers through assignment 30 in two periods, assignment 29 in one period and assignment 26 in two periods. She found student logs through April 13, 1989 in one period, through March 17, 1989 in one period, through March 6, 1989 in two periods and through March 2, 1989 in one period. Obviously, Ms. Ray's comment that the folders as of April 25, 1989 should contain a minimum of 31 writing assignments do not take into account the two-week leeway that Ms. Ray identified at hearing. This would also have an affect on her opinion that the student logs should have been updated through April 21, 1989. The actual date of updating which was incumbent upon Respondent was April 7, 1989. This is the most recent date using the two-week leeway. Ms. Ray noted that the written comments that Respondent had provided to the students were thoughtful and in many cases thorough, a further indication that the problems the Respondent had were not related to her lack of understanding of the requirements of the program. In her remarks in the memorandum and in her testimony at hearing Ms. Ray expressed her concern that the lack of timeliness in returning the papers to the students had caused Respondent's comments to lose their intended instructional effectiveness and a concern that the problem with timeliness had possibly led to an alarming number of student folders where assignments were not completed. Ms. Ray also remarked on her concern about the lack of integration of writing assignments into the total program of language arts instruction. All these observations are valid. On May 17, 1989, as reflected in Petitioner's Exhibit No. 27, a copy of a memorandum from Ms. Short to Mr. Shanklin, where Ms. Short observed that Respondent was still not in compliance as exemplified by the fact that in the grade book there were grades posted through assignment no. 32; however, there was no proof that any work had been done. The folders and logs were still in the same state that they had been at the time of the April 25, 1989 inspection by Ms. Ray and Ms. Cascone. The Ray and Cascone inspection and the report of Ms. Short of May 17, 1989, took place on dates succeeding the date upon which Respondent was able to retrieve folders from Ms. Short's office. On May 19, 1989, Mr. Shanklin wrote a memorandum to the Respondent attaching a copy of the May 17, 1989 memorandum from Ms. Short. Mr. Shanklin, through his memorandum, directed the Respondent to make use of her two-hour block of free time in bringing the materials current by May 26, 1989. At the end of this school year as reflected in Respondent's Exhibit No. 1, certain materials were to be turned over from Respondent to Mr. Nichols, her department chairman. These items were select papers from periods one, two or three for the first nine weeks and from period six for the fourth nine weeks, together with one complete student folder. Petitioner's Exhibit No. 45 is a box of materials which Respondent indicates were given to Mr. Nichols in conformance with this requirement. A further indication of this arrangement is found in a note from Ms. Short to Respondent dated June 12, 1989, Petitioner's Exhibit No. 29, which says that all materials not given to Mr. Nichols should be given to Ms. Short. The student folders, devoid of the materials that had been given to Mr. Nichols are said to be found as Petitioner's Exhibit No. 46. Evidence of these latter abridged materials being turned over is found in Petitioner's Exhibit No. 30, indicating that a check was issued by Ms. Hodge, the vice- principal, in return for the receipt of the folders for the various periods. Respondent's Exhibit No. 2 is a further checkout list that shows that Jack Gordon program materials had been turned in as evidenced by the signature of Mr. Nichols. Petitioner's Exhibit No. 45 appears to contain more than what was requested in Respondent's Exhibit No. 1. In addition to the materials that had been submitted to Mr. Nichols and Ms. Short, found in Petitioner's Exhibit Nos. 45 and 46 respectively, there was a folder of ungraded materials, Petitioner's Exhibit No. 44, which Respondent has no explanation for other than a vague reference that someone must have removed them from her control without permission. Upon reflection, it is found that these items were papers which Respondent was responsible for and failed to take appropriate action on. These papers have been compared to the grade books which are part of Petitioner's Composite Exhibit No. 47 and to the materials, Petitioner's Exhibit Nos. 45 and 46. This examination points out the continuing disarray in the materials beyond the point at which Respondent claims to have brought all student folders into compliance. Petitioner's Exhibit No. 44 exemplifies the fact that papers were not graded and no grades were received or the papers were not graded and grades were received. In comparing the papers found within the Petitioner's Exhibit No. 44 to Petitioner's Exhibit Nos. 45, 46 and 47, it also revealed that there were instances of noncompliance forms sometimes signed by the students and sometimes not and dated beyond the appropriate date for the assignment where Petitioner's Exhibit No. 44 demonstrated that the assignments had been carried out. Although there was no obligation by the Respondent to maintain noncompliance forms as a mandatory requirement from the school district, the appearance of the noncompliance forms which is designed to evidence the student's refusal to carry out the assignment when the student has actually completed assignment is an indication of Respondent's confusion if not outright duplicity. The pattern of this series of noncompliance forms containing the assignment number, the name of the assignment and incorrect date, appears to be written by one person with a signature being provided by another person, and in one instance no signature where the form contemplates the student signing his or her refusal to complete the paper. By a June 23, 1989 memorandum, a copy of which is Petitioner's Exhibit No. 31 from Ms. Short to Mr. Shanklin, Respondent remarks about the existence of a folder of ungraded work left with Mr. Nichols which is most likely the folder which is Petitioner's Exhibit No. 44. For Val Custis, a student in period one, Petitioner's Exhibit No. 44 contains ungraded assignments 28, 30, 33, 34 and 35. These papers were dated March 23, 1989; April 13, 1989; May 4, 1989; May 11, 1989 and May 25, 1989 respectively. In Petitioner's Exhibit No. 46, the student folder with log, this student received zeros in the log and the folder had noncompliance forms apparently signed by the student with the dates April 6, 1989 for assignment 28; April 18, 1989 for assignment 30; May 8, 1989 for assignment 33; May 15, 1989 for assignment 34 and May 22, 1989 for assignment 35 written with a different pen than the signature. The expected dates for those assignments respectively were March 23, 1989; April 13, 1989; May 4, 1989; and May 11, 1989 and May 18, 1989. In Petitioner's Composite Exhibit No. 47 the student did not receive a grade in the grade book for these assignments. For the student Heather Allen who was in the first period, Petitioner's Exhibit No. 44 showed assignments being prepared for numbers 33 and 34 dated May 4 and 10, 1989. Those assignments were not graded. In Petitioner's Exhibit No. 47, the grade book, it looks as if certain entries had been made assigning the grade as zero and erased. In Petitioner's Exhibit No. 46 noncompliance forms were shown as having been signed by the student and dated on May 8, 1989 and May 15, 1989 respectively, with the grades of zero being shown in the student log. Joseph Adams, who was in the sixth period class and who had an ungraded assignment 17 found within Petitioner's Exhibit No. 44, received a zero in the grade book, Petitioner's Composite Exhibit No. 47. The expected date of the assignment was December 15, 1988. In Petitioner's Exhibit No. 46 Adams received a zero on his student log and there is a noncompliance form with his signature and a date January 12, 1989. By contrast, Rollins Burks has an ungraded assignment no. 17 in Petitioner's Exhibit No. 44. In the grade book he received the maximum score of 50, Petitioner's Exhibit No. 47. In his folder, Petitioner's Exhibit No. 46, the student log reflects the same grade. The folder contains no other information about this assignment. Anthony Barreras was a student in the sixth period class. He has ungraded assignments no. 17, 32 and 34 found within Petitioner's Exhibit No. 44. They are dated April 26, 1989; June 8, 1989 and June 8, 1989. He received a 50 in the grade book, for assignment no. 17. Within Petitioner's Exhibit No. 46, his folder, his student log shows a grade of 50. There is no other information in the folder about the assignment. Related to assignment 32 he received a 38 in the grade book for a paper which was supposed to have been assigned April 27, 1989, and was shown as being completed June 8, 1989. For this assignment, in Petitioner's Exhibit No. 46, his student log shows that he received a zero and there is a signed noncompliance form with a date of May 1, 1989. For assignment no. 34 there is a zero in the grade book. In Petitioner's Exhibit No. 46, there is a log entry of zero and a noncompliance form signed by the student with a date May 15, 1989. Dee Douberly was a student in the third period class who has an ungraded assignment no. 31 in Petitioner's Exhibit No. 44. The expected date of that assignment was April 20, 1989 and it was prepared on May 25, 1989. Petitioner's Exhibit No. 47, the grade book, does not contain a grade for this assignment. It appears that an entry was made and then erased. In the student log it says that the assignment was turned in, and in the log, which is part of Petitioner's Exhibit No. 45, it shows that the student received 46 out of a maximum of 50 points. The student log contains a noncompliance form which is unlike the other noncompliance forms which have been described in that it does not contain the student's signature. It does reflect a date of April 25, 1989. A review of the log associated with the student Douberly reflects that this student was a solid performer. In addition to the students whose names have been mentioned as having ungraded work in Petitioner's Exhibit No. 44, there are others as well. These examples point out the confusion in this process caused by Respondent's inattention to her duties and the possibility that Respondent was acting fraudulently, all at the expense of the students' opportunity to receive meaningful instruction. Respondent in her testimony acknowledged the effect of a student receiving a zero for work that they had done as having an influence on the grade he or she received. As mentioned, Respondent never explained herself concerning her failures in the Jack Gordon writing program when the administrators in her two schools were attempting to confront these problems. As it turned out, she did not need assistance in having someone explain the methods to be employed in carrying out the program and did not request permission to absent herself from her duties if she believed that she was either physically or mentally unable to continue. At hearing she attempted to justify her inadequate performance by the use of depositions of Mr. Richard A. Fridemann, a clinical social worker, and Dr. David T. Murray, a medical doctor who specializes in internal medicine. Mr. Fridemann identified Respondent's emotional difficulties associated with depression. Having considered his remarks they do not adequately explain nor excuse her performance associated with the Jack Gordon writing program. Likewise, Dr. Murray, who has treated the Respondent for hypothyroid condition, a condition which she has experienced for a considerable length of time, was unable to explain Respondent's inadequate performance associated with the Jack Gordon writing program. While it is clear based upon Dr. Murray's remarks that the hypothyroid condition can impair functioning, the reported period in which Respondent suffered that condition, within the experience of Dr. Murray was September 30, 1986 through November 18, 1986 at which time she was undergoing treatment. From that latter date until May 16, 1989 Respondent had not presented herself to Dr. Murray for treatment concerning the hypothyroid condition. The period November 18, 1986 through May 16, 1989 encompassed the period in which her performance as a teacher was substandard. In this connection Respondent testified that, at the end of the school year 1988-89, medication which she was taking for hypothyroid was controlling that problem. Another health related problem associated with kidney and urinary track infection is not found to have influenced Respondent to the extent that she was unable to perform her duties at critical points in time and to be an excuse for her inadequate performance.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is, recommended that a Final Order be entered which dismisses the Respondent from her employment with the Duval County School Board. RECOMMENDED this 21st day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4131 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-35 are subordinate to facts found. The sub-parts A and B to Paragraph 36 are contrary to facts found. Paragraphs 37-39 are subordinate to facts found. Paragraph 40 is contrary to facts found in the suggestion that the current assignment should be no. 29. Paragraph 41 is contrary to facts found. Paragraph 42 is subordinate to facts found. Paragraph 43 is incorrect in the statement that the date is March 23, 1989 as opposed to February 23, 1989. Paragraph 44 is subordinate to facts found. Paragraph 45 is contrary to facts found. Paragraphs 46-49 are subordinate to facts found. Paragraph 50 is not necessary to the resolution of the dispute. Paragraphs 51-54 are subordinate to facts found. Respondent's Facts Paragraphs 1-6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraph 8 sets out claims made by the Respondent as to her condition and the inability to carry out her duties; however, these explanations are not corroborated by any medical evidence and having considered these contentions by Respondent in the context of the overall case are not accepted. The comments in Paragraph 9 concerning Respondent's medical condition although accepted as correct do not promote a contrary result in the recommended order but excusing Respondent's performance. Paragraph 10 is contrary to facts found. As to Paragraph 11 while it is accepted that Respondent was grief stricken about the death of students and co-workers, the dimensions of this grief as it might explain her performance was not sufficiently identified to form a justification for her performance. As to Paragraph 12 see the explanation related to Paragraph 11. Paragraph 13 is subordinate to facts found. Concerning Paragraph 14 and 15, while Respondent may have experienced problems with Mr. Williams her principal, this does not excuse nor justify her performance in the 1987-88 school year. Paragraph 16 is contrary to facts found. Paragraphs 17 and 18 are subordinate to facts found. As to Paragraph 19, this representation does not indicate that the transfer from Ribault High School to Andrew Jackson High School was inappropriate. As to Paragraph 20, although there may be some possibility of a transfer to a junior high school level where Jack Gordon writing requirements are not required, that topic was not sufficiently developed in this record to allow a recommendation to that affect. On balance, based upon record that was established dismissal as a teacher is the appropriate disposition. As to Paragraph 21, while it is accepted that the Respondent was a traveling teacher, this did not excuse her from carrying out her Jack Gordon Writing Program responsibilities. As to Paragraph 22, it is not accepted that the Respondent's problems in November, 1988 and February, 1989 were attributable to her illness. As to Paragraph 23 that Mr. Shanklin and Ms. Short were not aware of Respondent's health problems sufficient to allow Respondent to take leave and turn the duties of the Jack Gordon writing program over to another teacher. It would have been an inappropriate form of assistance or relief to allow Respondent to be at her duty assignment and have others responsible for conducting her work. Moreover, the way Respondent presented herself concerning these problems was such that she did not explain her difficulties with the program in answering inquiries about the reasons why she had not performed at an adequate level and she did not ask for relief from her duties at a time that may have saved her the embarrassment and protected the students against her substandard performance. As to Paragraph 24, while the folders were maintained in Ms. Short's office this did not preclude the Respondent from being able to carry out necessary updating. As to Paragraph 25, it is not accepted that the use of the noncompliance form aggravated Respondent's attempt at complying with the February 23, 1989 instructions of Mr. Shanklin. As to Paragraph 26, it is accepted that work was turned in at the end of the school year 1988-89, but as described in the recommended order the materials were not in an acceptable state. As to Paragraph 27, to the extent this is intended as an explanation for not grading the materials set out in Petitioner's Exhibit No. 44, it is not accepted. COPIES FURNISHED: Lee S. Carlin, Esquire Assistant Counsel Office of General Counsel 421 West Church Street 715 Towncentre Jacksonville, FL 32202 Albert S. Millar, Esquire 2721 Park Street Jacksonville, FL 32205 Larry L. Zenke, Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Stan Jordan, Chairman Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Betty Castor, Commissioner Department of Education 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's responses to Questions 38, 53, and 71 of the April 1991 Mental Health Counselor's Examination were incorrectly scored. Whether Question 71 of said examination is an improper question.
Findings Of Fact Petitioner sat for the Mental Health Counselor's Examination administered by Respondent in April 1991. Petitioner was credited with 102 correct answers out of 140 questions on the professional counseling section of the examination. A score of 103 correct answers out of 140 questions was required to pass the section. Petitioner abandoned all challenges except the challenges to the scoring of her responses to Questions 38, 53, and 71. Petitioner also asserts that Question 71 is unfair because it is ambiguous. All three of the questions involved in this proceeding are multiple choice questions, each with four possible answers. The candidates are instructed to select the best answer to the question. Question 38 pertains to an expression used to described adolescence and asks the candidate to select the best answer that explains the meaning of that expression. Petitioner selected multiple choice number 4 as her answer to the question. Respondent established that multiple choice number 1 was the best answer to the question. Petitioner received no credit for her answer to question 38 because she did not select the best answer to the question. Question 53 pertains to a patient who rambles during an interview and requires the candidate to select from among the four multiple choice answers the best answer that names the technique used by the interviewer to bring the patient back to the main purpose of the discussion. Petitioner selected multiple choice number 1 as her answer to the question. Respondent contends that multiple choice number 4 was the best answer to the question. Petitioner contends that multiple choice number 4 is not a technique and that, consequently, number 4 cannot be the best answer to the question. The greater weight of the evidence, including the literature submitted as exhibits by the parties, is that multiple choice number 4 is a technique and that multiple choice number 4 is the best answer to the question. Petitioner received no credit for her answer to question 53 because she did not select the best answer to the question. Question 71 pertains to an employee at an industrial plant who has sought out the mental health counselor in the employee assistance program. Petitioner contends that the question is ambiguous because insufficient information is given for the reasons the employee sought out the mental health counselor. Respondent established that sufficient information was provided by the root of the question to enable the candidate to select the best answer to the question. Consequently, it is concluded that the question is not impermissibly ambiguous. Petitioner selected multiple choice number 1 as her answer to Question Number 71. Respondent established that multiple choice number 2 was the best answer to the question. Petitioner received no credit for her answer to question 71 because she did not select the best answer to the question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the validity of Question 71 and which denies Petitioner's challenge to the scoring of her responses to Questions 38, 53, and 71 of the professional counseling section of the Mental Health Counselor's Examination administered by Respondent in April 1991. DONE AND ORDERED this 11th day of May, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are discussed as preliminary matters. The proposed findings are unnecessary as findings of fact and are, consequently, rejected. The proposed findings of fact contained in the first sentence of Paragraph 2.a.(1) are rejected because they are unnecessary to the conclusions reached. The candidates are instructed to select the best answer to the question. All four choices may be correct answers. While it may arguably be a correct answer, the answer selected by the Petitioner was not the best answer to the question. The proposed findings of fact contained in the second sentence of Paragraph 2.a.(1) are rejected because they are contrary to the findings made. The proposed findings of fact contained in Paragraph 2.a.(2) are rejected because they are subordinate to the findings made. The proposed findings of fact contained in Paragraph 2.a.(3) are rejected because they are contrary to the findings made. The proposed findings of fact in Paragraph 2.b.(1) are rejected as being the recitation of testimony that was considered in making the finding that the question is not ambiguous. The proposed findings of fact in Paragraph 2.c.(1) are rejected as being the recitation of testimony that was considered in making the findings reflected herein. The question called for the candidate to state what the phrase means, not whether the phrase is an improper use of a word of art. The proposed findings of fact in Paragraph 2.c.(2) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3, 4, 5, and 6 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being unsubstantiated by the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in Paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in Paragraph 3 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in Paragraphs 4, 5, 6, and 7 are rejected as being subordinate to the findings made. COPIES FURNISHED: Caren Glassman 1231 SE 1 Street Apt. 13 Fort Lauderdale, Florida 33301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Department of Professional Regulation Mental Health Counselors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner should be given credit for an examination question on the Florida Jurisdictional Essay Exam for Surveyors and Mappers taken by Petitioner in April, 1996.
Findings Of Fact Petitioner, Roger E. Yates, filed a petition for formal hearing by letter dated October 1, 1996, challenging the points which were awarded to him for the answer to question number 16 on the Florida Jurisdictional Essay Exam for Surveyors and Mappers given in April 1996. Petitioner contends that he should have been given the maximum number of points, which is four, for the answer to question number 16. Petitioner did not challenge any other questions in his petition. Petitioner was awarded four points for the answer to question number 16, which was the maximum number of points he could receive. Such award results in a score of 69, which is less than the required minimum score of 70.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Roger E. Yates’ petition for relief. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1997. SUSAN B. KIRKLAND 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 19th day of February, 1997. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gerald T. Roden, Esquire 1432 21st Street Vero Beach, Florida 32960 Angel Gonzalez, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0756 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
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 is whether, as of June 30, 2013, Petitioner may nonrenew Respondent's charter agreement (Charter) to operate a charter school, pursuant to section 1002.33(8)(a)2. and 4., Florida Statutes.
Findings Of Fact Respondent operates a charter school pursuant to the Charter, which was entered into in December 2008 by Petitioner, as sponsor, and Life Skills Center Palm Beach County, Inc. Effective June 30, 2012, Life Skills Center Palm Beach County, Inc., changed its name to Excel Leadership Academy, Inc. At all times, the corporation chartered to operate the school was a Florida not-for-profit corporation, and Respondent has been a nongraded charter school with low-performing students. The Charter expires June 30, 2013. Charter General Provision G states that Petitioner may nonrenew the Charter "for good cause." On November 1, 2012, Petitioner's Charter School Department met with representatives of Respondent to discuss an upcoming renewal program review that Petitioner would undertake in order to determine whether it should renew the Charter. During the meeting, Petitioner's representatives went over the review instrument that would be used in conducting the renewal program review. In January 2013, an employee of Petitioner with financial expertise visited Respondent's school, examined Respondent's financial records, and spoke with Respondent's relevant representatives. In the same month, an employee of Petitioner with English-language-learner(ELL) expertise visited Respondent's school, examined Respondent's ELL records, and spoke with Respondent's relevant representatives. In February 2013, employees of Petitioner with academic expertise visited Respondent's school, examined Respondent's academic records,, and spoke with Respondent's relevant employees. As a result of these examinations conducted as part of the renewal program review, Petitioner found deficiencies and decided not to renew the Charter. By letter dated February 27, 2013, Petitioner's Superintendent informed Respondent of his intent to recommend to the School Board, at its meeting on March 6, 2013, that it vote to nonrenew the Charter. On March 6, the School Board met and voted to approve the Superintendent's recommendation. By Written Notice of Non-Renewal of Charter Contract dated March 14, the School Board formally notified Respondent of the nonrenewal of the Charter and itemized the grounds for this action. This March 14 notification is the source of the allegations contained in the Preliminary Statement, above. Charter Section 1.0.C identifies the target group of students to be served by Respondent as at-risk students, aged 16-21 years--including ESE students, disabled students, ELL students--whose needs may be better served by a nontraditional school given that the students may be unable to attend school during a normal school day due to work requirements to support a family, pregnancy, truancy, academic deficits, disruptive behavior, or limited proficiency in English. Charter Section 1.0.D recognizes that at-risk students have different needs. Section 1.0.D states that Respondent will employ an Employability Specialist to prepare the students for employment. Section 1.0.D also states that Respondent will emphasize one-on-one instructional systems, and the curricula will cover the "core academic subjects" of reading, language arts, mathematics, social studies, and science, as well as vocational and social skills. Charter Section 1.0.E identifies the mission of the school as serving at-risk students by giving them a second chance to obtain a quality education and employability training and placement. Charter Section 2.0.A projects total enrollment for each of the five school years from 2008-09 through 2012-13 at 400 students in the ninth through twelfth grades to be included in the school. Addressing curriculum, Charter Section 3.0.A states: [Respondent] agrees to ensure that reading is a primary focus of the curriculum and that resources are provided to identify and provide specialized instruction for students who are reading below grade level. The curriculum and instructional strategies for reading must be consistent with the Sunshine State Standards and grounded in scientifically based reading research. Charter Section 3.0.D provides that Respondent "agrees to implement an instructional program consistent with the program as specified in the Student Progression Plan of [Petitioner] " Charter Section 4.0.A states that Respondent is a drop-out prevention and academic-intervention program. Section 4.0.B states: "[Respondent] will establish a systematic method for assessing student progress using the District's Pupil Progression Plan and performance at each grade using valid and reliable procedures and following the requirements of the law pursuant to Sections 1000.03 and 1008.431, F.S." Section 4.0.B describes baseline and improvement assessment as follows: A baseline for student academic achievement will be established upon enrollment in the educational program. This baseline will be established by analysis of results from the standard assessment administered at the school, previous FCAT scores, and an electronic assessment tool that measures mastery of Sunshine State Standards in language arts, reading, and math. . . . Student improvement will be measured by post-testing with the standard assessment utilized at the [school] and FCAT scores. In addition, students will be assessed by nationally normed assessments (administered twice each school year) that provide information about student achievement. Student improvement will also be measured on a "value added" basis taking into account the student's beginning achievement level (baseline) and progress made through the instructional year. Student progress will be measured and monitored to ensure growth occurs annually. Nationally, norm-referenced tests will also be particularly valuable to measure growth of students who have previously passed the criterion-referenced FCAT in tenth grade. [Respondent] will continue to measure academic growth for this population with norm-referenced tests. Standards based assessments as prescribed by the state governing authority will be administered in accordance with established state law. Charter Section 4.0.F(5) provides that all graduates will have completed at least 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Charter Section 4.0.F(8) states that, each year, Respondent shall increase its enrollment by the lesser of 20% or 100 students until it reaches facility capacity. Attainment of "[t]his goal indicates that the program is working and building a reputation within the community for success." Charter Section 5.0.B states that Respondent will offer an individualized program for each student to progress at his own pace using one-on-one instructional systems. Each student will attend one school session, which consists of four hours of academic learning and one hour of vocational or job readiness training. "Educational curriculum, resources, and lessons can be delivered by teachers through a number of teaching methodologies, utilizing those that best meet the specific needs of the student." Charter Section 5.0.C states: "Students will be supervised by a Florida certified teacher or skilled instructional personnel at all times from arrival at Charter School to departure." Charter Section 8.0.A. provides that the students will take "all applicable State Standardized tests consistent with the sponsor's Student Progression Plan." Respondent is responsible for administering the tests. Charter Section 13.0.J states that Respondent will provide ESE services as provided by each student's IEP. If a parent chooses Respondent's school and it cannot implement the student's IEP, prior to enrollment, the IEP team must meet, revise the IEP, and determine how the IEP will be implemented at Respondent's school; in the alternative, the IEP team may determine another appropriate setting for the implementation of the student's IEP. Section 13.0.J.4 provides that Respondent must "hire an appropriate number of ESE certified teachers to provide ESE services." Further, Respondent must notify Petitioner "immediately" if "the certified ESE teacher is no longer employed or providing services to ESE students as required in their IEPs." Section 13.0.J.5 states: "A certified ESE teacher must maintain written documentation of consultative services for any student whose IEP indicates consultative services." Charter Section 13.0.O provides that students with limited proficiency in English "will be served by ESOL-endorsed personnel." Charter Section 20.0.C provides that teachers shall be Florida-certified as teachers, as required by chapter 1012, Florida Statutes, and the No Child Left Behind Act of 2001. However, Section 20.0.C allows Respondent to contract with "skilled selected non-certificated" personnel "to provide instructional services in the individual's field of specialty or to assist instructional members as paraprofessionals in the same manner as defined by Chapter 1012, F.S., and as provided by the State Board of Education Rule for Charter School Governing Boards." The two most prominent deficiencies are facts to which Respondent stipulated. Its enrollment is declining, and its financial condition is deteriorating due to a general fund deficit. These facts are linked. Respondent attributes its enrollment declines to the opening of another charter school, called Mavericks, near the original location of Respondent's school. At its peak, Respondent enrolled 378.5 students during the 2010-11 school year. For the 2011-12 school year, Respondent's enrollment declined by 206.5 students to 172 students. For the 2012-13 school year, Respondent's enrollment declined by another 93 students to only 79 students. Not surprisingly, given the extent to which enrollments drive revenues at schools, Respondent's financial condition is, at best, grave and, at worse, moribund. For fiscal year ending June 30, 2012, Respondent's auditor determined that Respondent maintained a general fund deficit of $38,057. It is clear from more detailed information in the financial report that the auditor overstated the deficit, which was actually $25,027, but this, too, is a material deficit. The materiality of the deficit, as well as the rapid rate of Respondent's financial deterioration, is revealed by the facts that, for fiscal year ending 2012, Respondent's expenses exceeded its revenues by $162,039--roughly, an order of magnitude greater than the excess of expenses over revenues by $17,771 for fiscal year ending 2011. Respondent's liabilities of $155,008 exceed its assets of $146,129 by $8879, as of June 30, 2012. The link between declining enrollment and financial deterioration is confirmed by the auditor's finding that Respondent's enrollment shortfall, as compared to its projections, resulted in the failure to earn $1.4 million in revenues. During the 2012-13 school year, Respondent has implemented drastic measures to try to control expenses. During this school year, Respondent terminated its management contract, moved the school to a smaller facility with lower occupancy costs, and, as noted below, cut labor expenses by not replacing instructional employees. In themselves, cost-cutting measures would seem to slow the rate of financial deterioration, although the reduction in capital and operational expenses may as likely be met by an equal or greater reduction in revenues, as market forces drive potential students to more successful charter schools. On this record, Respondent's revenues and expenditures appear to be declining in tandem, as Respondent's operations wind down and Respondent approaches financial collapse. Petitioner has thus proved Charges 2.b and 8. Greatly exacerbating the situation, Respondent's serious operational deficiencies, which violate material provisions of the Charter, could only be eliminated by significant increases in expenditures. For example, since sometime in November 2012, Respondent operated with only two instructional employees: a teacher certified in social science and a teacher certified in ESE, Ms. Kangal. During this period of time, each teacher was required to perform the lead-teaching duties in the classes that Respondent was still able to offer. However, during this period of time, numerous students attending the school had IEPs whose implementation required ESE consultative services in the form of support facilitation. For these students, a lead teacher must provide regular instruction to the class, and the ESE teacher must simultaneously provide specialized instruction to the ESE students whose IEP called for consultative services in the form of support facilitation. This exposure to regular instruction with supplemental specialized instruction is critically important to these ESE students; yet, for several months, Respondent was unable to implement this provision of these IEPs, nor any other IEPs that called for direct specialized instruction. Failing to discharge its obligations with respect to ESE instruction, Respondent also failed to discharge its Charter obligation notify Petitioner of the cessation of these ESE services. Petitioner thus proved Charges 11 and 12. At no time during the 2012-13 school year did Respondent employ an ESOL-endorsed teacher. Although this deficiency pales in comparison to the cessation of ESE services for several months, the failure to address the needs of ESOL students is another serious deficiency. Petitioner thus proved Charge 13. The critical subject of reading is the focus of multiple deficiencies. Respondent maintained no lesson plans in reading. The person whom Respondent identified as the reading teacher, Ms. Kangal, is reading-endorsed, but is also the sole ESE-certified teacher at the school. Ms. Kangal conceded to Petitioner's representatives that she did not teach reading. In response to questions as to how reading was taught, Respondent's principal, Ms. Kemp, replied that it was taught across the curriculum and infused in all classes. But evidence at the school did not support these ambitious claims. The classrooms are bereft of such devices as word walls, curriculum- based posters, books, study guides, or even textbooks. Respondent's students included approximately 69 Level 1 and Level 2 readers, whose reading skills require intensive remediation efforts, including enrollment in an intensive reading class. Only three of these students three enrolled in such a class. Respondent's assessment of reading was deficient. Respondent never obtained benchmark data from available standardized tests at the start of the 2012-13 school year, so that it could later measure growth in reading achievement by the end of the school year. At no time did Respondent assess the reading fluency of any of its students. The record is not entirely clear as to whether Respondent has adopted Petitioner's reading plan. District data reveals no such election, but Florida Department of Education data reveals that Respondent has elected to implement Petitioner's reading plan. If Respondent did not adopt Petitioner's reading plan, there is no evidence that Respondent had adopted any other reading plan, so the absence of a reading plan would be a serious deficiency. Respondent claims that it adopted Petitioner's reading plan for the 2012-13 school year, as it had for the preceding school year. Given the greater weight ordinarily attaching to an affirmative indication as opposed to the absence of an affirmative indication, it is more likely than not that Respondent adopted Petitioner's reading plan for the 2012-13 school year. However, this reading plan requires FAIR and SRI assessments throughout the school year, and Respondent did not administer these tests, nor has it adopted alternative means of obtaining the same data, which is necessary for any meaningful implementation of Petitioner's reading plan. Additionally, there is no evidence that Respondent was implementing any reading program whatsoever, even if it had adopted Respondent's reading plan. Petitioner thus proved Charges 1, 3.a, 3.b, 4, 6.b, 6.c, and 6.f. At the start of the 2012-13 school year, Respondent employed four teachers: Ms. Shaheed, who is certified in language arts and endorsed in reading; Mr. Innocent, who is certified in math; Mr. Kyryliw, who is certified in social science; and Ms. Kangal, who is described above. (A fifth teacher, Mr. Ramos, had been hired to teach biology, but he quit prior to the first day of school.) In November 2012, Ms. Shaheed and Mr. Innocent quit and were not replaced, necessitating the removal of Ms. Kangal from her direct and supportive ESE instructional duties and her reassignment to nearly all of the lead-teaching duties formerly handled by both of the teachers who had just quit. This reduction in instructional personnel by half prior to the end of the first semester of the 2012-13 school year prevented Respondent from providing instruction in all of the core academic subjects. Clearly, biology, a required course for graduation, was neglected. Belated attempts to enroll Respondent's students in an online biology course, without any live instructional support, were inadequate to address this required subject because the online course is a demanding course that is taught on grade level. Math was also neglected. During the renewal program review, one of Petitioner's representatives with expertise in math visited a computer lab where students were apparently working in Algebra I, Algebra II, and geometry. When the representative engaged with one of the students, the student asked if she could answer a question. She did so, and the student excitedly told one of his peers that this teacher knew math and could help them. Suggesting that the math lab may have been staged or, if managed at all, managed incompetently, Petitioner's representative noticed that, when Ms. Kangal returned to the room after leaving the students to work on their own on the computers, she handed out Algebra I workbooks to all the students, even to those who, online, had been working on Algebra II and geometry. If Ms. Kangal had even passing familiarity with the workbooks, she would have noticed that they were to prepare the students for the end-of-course Algebra I exam--a total waste of time for those students purportedly working on Algebra II and geometry a few minutes earlier. Petitioner thus proved Charges 5, 6.d, and 9. With even less cause, in terms of cost savings, Respondent has abandoned its undertaking in the Charter to ensure that all of its students perform 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Respondent kept no log of any time spent on these important vocational-preparation activities, nor did Respondent have any agreements with employers to help its students meet this requirement. Petitioner thus proved Charge 7. The above-detailed deficiencies involving declining student enrollment, deteriorating finances, failing to implement ESE students' IEPs, failing to provide an ESOL-endorsed teacher, multiple failings in providing reading instruction, and failing to provide biology and math instruction provide ample good cause for the nonrenewal of the Charter; it is unnecessary to consider the remaining charges. As noted above, Respondent's enrollment has plunged 75% in two school years, and its enrollment-driven revenues are likewise in steep decline. These facts, alone, are good cause for nonrenewal. Worse, Respondent is failing even to address the most basic needs of its ESE students for specialized instruction, nearly all of its dwindling student population for intensive reading instruction, its ESOL students for language issues, its many students seeking to recover the credits necessary for graduation in terms of basic math and biology courses. In the face of these factors driving it to nonoperational status, Respondent has offered no semblance of an educational/financial/marketing plan. Instead, Respondent feebly has tried to transfer the blame for its current situation from itself, where it belongs, to Petitioner. But Respondent's affirmative defense of inadequate assistance from Petitioner fails on two grounds. First, the evidence does not support this claim. Petitioner made available to Respondent the same training and technical assistance that it made available to other schools--charter and noncharter. Second, as to the above- detailed deficiencies, Respondent's failures do not appear to have been of a type that additional technical assistance would have helped. Respondent failed in its most basic duties to educate its students. Failing even to discharge its duty to notify Petitioner of critical changes, such as the cessation of ESE services and loss of teachers, Respondent's complaints that Petitioner failed to help are disingenuous.
Recommendation It is RECOMMENDED that the Palm Beach County School Board enter a final order declining to renew the Charter. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013. COPIES FURNISHED: Christopher Norwood, Qualified Representative Governance Institute for School Accountability 14844 Breckness Place, Suite 100 Miami Lakes, Florida 33016 Bruce A. Harris, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 E. Wayne Gent, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 Dr. Tony Bennett, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue The issue for determination is whether Petitioner’s challenge to the failing score he received on the essay portion of the Florida Teacher Certification Examination’s (FTCE) General Knowledge (GK) test should be sustained.
Findings Of Fact Petitioner has been employed as a teacher for the past three years. He had a temporary Florida teacher certificate, but at the time of the hearing, he said that he believes it was expired. Petitioner is seeking to qualify for a (non-temporary) Florida teacher certificate. Petitioner first must pass the essay part of the GK test to complete the GK requirements. He would then be qualified to proceed to address the remaining certification requirements. See § 1012.56(2)(g), (h), (i), and (7), Fla. Stat. Respondent, Pam Stewart, as Commissioner of Education, is the state’s chief educational officer and executive director of DOE. §§ 20.15(2) and 1001.10(1), Fla. Stat. One of DOE’s responsibilities is to review applications for educator certification and determine the qualifications of applicants according to eligibility standards and prerequisites for the specific type of certification sought. See § 1012.56, Fla. Stat. One common prerequisite is taking and passing examinations relevant to the particular certification. Respondent is authorized to contract for development, administration, and scoring of educator certification exams. § 1012.56(9)(a), Fla. Stat. Pursuant to this authority, following a competitive procurement in 2011, Pearson was awarded a contract to administer and score Florida’s educator certification exams, including the FTCE. The State Board of Education (SBE) is the collegial agency head of DOE. § 20.15(1), Fla. Stat. As agency head, the SBE was required to approve the contract with Pearson. The SBE is also charged with promulgating certain rules that set forth policies related to educator certification, such as requirements to achieve a passing score on certification exams. DOE develops recommendations for the SBE regarding promulgating and amending these rules. In developing its recommendations, DOE obtains input and information from a diverse group of Florida experts and stakeholders, including active teachers, school district personnel, and academicians from colleges and universities. FTCE Development, Administration, and Scoring DOE develops the FTCE, as well as the other educator certification exams, in-house. The FTCE is developed and periodically revised to align with SBE-promulgated standards for teachers. In addition, as required by statute, certification exams, including the FTCE, must be aligned to SBE-approved student standards. Details about the FTCE, such as the competencies and skills to be tested, the exam organization, and passing score requirements, are set forth in Florida Administrative Code Rule 6A-4.0021 (the FTCE rule). The FTCE rule has been amended periodically, but the current version includes a running history, setting forth FTCE details that applied during past time periods, as well as those currently in effect. The FTCE is not actually a single examination. It consists of multiple separate examinations to meet the different requirements for teacher certification and the different options for specific subject areas. Descriptions of the areas to be tested by each FTCE component are set forth in a publication incorporated by reference in the FTCE rule. The version of this publication that was in effect when Petitioner took the exam at issue in this proceeding is identified in the FTCE rule as: “Competencies and Skills Required for Teacher Certification in Florida, Twenty-Second Edition.” As set forth in the FTCE rule, the GK exam consists of four subtests. Subtest one is the essay test; subtest two, three, and four are multiple choice tests covering English language skills, reading, and math, respectively. Petitioner met the requirements for GK subtests two, three, and four, by virtue of having taken and passed the College Level Academic Skills Test (CLAST) in those areas prior to July 1, 2002.3/ Therefore, Petitioner only had to take and pass subtest one, the essay exam, to satisfy all GK requirements. The competency and skills to be tested by the GK essay test, as promulgated by the SBE and codified by reference in the FTCE rule, are as follows: Knowledge of formal college-level writing Determine the purpose of writing to task and audience. Provide a section that effectively introduces the topic. Formulate a relevant thesis or claim. Organize ideas and details effectively. Provide adequate, relevant support by citing ample textual evidence; response may also include anecdotal experience for added support. Use a variety of transitional devices effectively throughout and within a written text. Demonstrate proficient use of college- level, standard written English (e.g., varied word choice, syntax, language conventions, semantics). Provide a concluding statement or section that follows from, or supports, the argument or information presented. Use a variety of sentence patterns effectively. Maintain a consistent point of view. Apply the conventions of standard English (e.g., avoid inappropriate use of slang, jargon, clichés). (Competencies and Skills Required for Teacher Certification in Florida, Twenty-Second Edition, page 2 of 247, incorporated by reference in the FTCE rule). Prior to January 1, 2015, a score of at least six (using a scoring range from two points to 12 points) was required to pass the GK essay test. Based on input from educators, academicians, and other subject matter experts, DOE recommended that the passing score for the GK essay test be raised from a score of six to a score of eight (using the same range of two points to 12 points). The SBE adopted the recommendation, which is codified in the FTCE rule: eight is the required passing score for GK essays as of January 1, 2015. Without question, the higher passing score requirement makes it more difficult to pass the GK essay. The policy underlying this scoring change is to make the GK essay test more rigorous, in recognition of the critical importance of writing skills. By raising the standards for demonstrating mastery of the writing skills tested by the GK essay test, the GK essay test better aligns with increasingly rigorous SBE-approved student standards for written performance. This policy change is reasonable and within the purview of the SBE; in any event, it is not subject to debate in this case, because Petitioner did not challenge the FTCE rule. Not surprisingly, since the passing score was raised for the GK essay, the overall passage rates have dropped. The passage rates were 96 percent in 2013 and 93 percent in 2014, when the passing score was lower. After the passing score was raised, the passage rates were 63 percent in 2015 and 69 percent in 2016. While Petitioner characterizes the 69 percent passage rate as “low” (Pet. PRO at 4, ¶ 13), that is an opinion that is unsupported by any testimony offered at hearing. Petitioner did not offer any expert witness to testify on his behalf. Instead, based on the testimony offered on this subject at the final hearing, the more reasonable inference to draw from the overall GK essay passage rates is that the passage rates were too high prior to 2015. The overall GK essay passage rate, standing alone, is not evidence that the GK essay is arbitrary, capricious, unfair, or invalid. Pursuant to its contract with DOE as the test administration and test scoring agency, Pearson administers and scores GK essay exams. Pearson employs holistic scoring as the exclusive method for scoring essays, including GK essays (as specified in Pearson’s contract with DOE). The holistic scoring method is used to score essay examinations by professionals across the testing service industry. Pearson has extensive experience in the testing service industry, currently providing test scoring services to more than 20 states. Dr. Michael Grogan, Pearson’s director of performance assessment scoring services and a former chief rater, has been leading sessions in holistic scoring or training others since 2003. He described the holistic scoring method as a process of evaluating the overall effect of a response, weighing its strengths and weaknesses, and assigning the response one score. Through training and use of tools, such as rubrics and exemplars, the evaluation process becomes less subjective and more standardized, with professional bias of individual raters minimized, and leading to consistent scoring among trained raters. Training is therefore an integral part of Pearson’s testing services for which DOE contracted. In an intensive two- day training program, prospective raters are trained in the holistic scoring method used to score GK essays. Pearson’s rater training program begins with a review of background about the holistic scoring method generally, including discussions about rater bias. From there, trainees are oriented to GK essay-specific training material. They thoroughly review and discuss the rubric, the score scale (which is one point to six points), the operational prompt raters will be scoring, and exemplars (other responses to the prompt that have been pre-scored). The rater candidates then employ these tools to begin independently scoring exemplars. Raters-in-training conduct many rounds of independent scoring sessions, interspersed with group discussions regarding how the essays should have been scored. The trainees then move into the calibration test phase, in which they independently score essay exemplars, paired with an experienced rater who independently scores the same exemplars. The trainees score essay after essay, then compare scores with the experienced rater, with the goal to achieve consistency in scores, by equaling or coming within one point of the other rater’s score. Ultimately, the raters must pass the calibration test by achieving scoring consistency to qualify for appointment as raters to score actual GK essays. Raters who conduct scoring of the GK essay must meet qualifications specified by DOE (including teacher certification and experience). Pearson proposes qualified individuals to DOE, and then DOE must approve proposed raters. Then the approved raters must undergo and successfully complete Pearson’s training. Each GK essay is scored independently by two qualified raters. Pairs of raters receive scoring assignments, one prompt at a time. The assignments are received anonymously; one rater does not know who the other assigned rater is. And neither rater knows anything about the examinee, as the essay is identified solely by a blind number. GK essay raters work in one room, at individual computer terminals, in Hadley. Security of all testing information is vigilantly maintained, through confidentiality agreements and secure, limited, and protected computer access. For each scoring assignment, raters adhere to a step- by-step process that reinforces their initial training. Raters must first score sample responses to a historic prompt that is different from the assigned prompt, as a training refresher to invoke the holistic scoring mindset. From there, raters review the assigned prompt and the scoring rubric. Raters then must score an anchor set of six sample responses, one exemplifying each score category; the historic scores are not revealed until the raters complete their scoring. Raters compare their scores with the anchor scores and work through any discrepancies. Raters then go through a calibration process of scoring 10 more sample responses to the same prompt. After scoring all 10 essays, the raters learn the scores deemed appropriate for those responses, and must work through any discrepancies until consistency is achieved. Only after scoring many sample essays and achieving scoring consistency are the raters permitted to turn to the assigned GK essay for review and scoring. Pearson also employs chief raters to supervise and monitor the raters while they are engaged in their scoring work. Chief raters must meet specified qualifications and be approved by DOE. Chief raters must be certified and experienced in the field of teaching, plus they must have prior experience working as raters. Chief raters conduct the training sessions to train raters in the holistic scoring method in Hadley. A chief rater supervises and monitors raters by being physically present in the same room with the raters while they are engaged in their scoring work. The chief rater monitors rater work online in real time. As raters enter scores, those scores are immediately known by the chief rater, so that any “red flag” issues in scoring results and trends can be addressed immediately. The scores of the two raters assigned to score a GK essay are added together for the total holistic score. Thus, the total score range for a GK essay is between two points and 12 points: the lowest possible score of two points would be achieved if each rater assigns a score of one point; and the highest score of 12 points would be achieved if each rater assigns six points. The sum of the two raters’ scores will be the score that the GK essay receives unless the raters’ scores disagree by more than one point. If the two raters’ scores differ by more than one point, then the chief rater steps in to resolve the discrepancy. After GK essays are scored, the examinee is informed of the final score of between two and 12 points, and the examinee is told whether the score is a passing or failing score. Eight points is a passing score, according to the FTCE rule. Raters do not develop written comments as part of their evaluation of GK essays. Their holistic evaluation is expressed by the point value they assign to the essay. Through the intensive training and the subsequent calibration and recalibration before each GK essay scoring assignment, Pearson has achieved consistency in rater scoring of GK essays that meets industry standards for holistic scoring. Consistency in this context means that the scores assigned to a GK essay by a pair of raters are either identical or adjacent (within one point), and when adjacent, are balanced (i.e., each rater is as often the higher scorer as he or she is the lower scorer). DOE makes sure that Pearson maintains rater scoring consistency in accordance with industry standards, by monitoring monthly performance reports provided by Pearson. Examinee Perspective: Preparation for the GK Essay DOE provides detailed information and aids on its website regarding all four subtests of the GK exam, including the GK essay, for potential examinees. This includes a 39-page test information guide for the FTCE GK test. The test information guide sets forth the complete SBE- adopted competencies and skills to be tested by each of the four GK subtests, including those specific to the essay test quoted in Finding of Fact 11. The test information guide explains the GK essay and scoring process, as follows: For your essay, you will choose between two topics. The 50 minutes allotted for this section of the exam includes time to prepare, write, and edit your essay. Your work will be scored holistically by two raters. The personal views you express will not be an issue; however, the skill with which you express those views, the logic of your arguments, and the degree to which you support your position will be very important in the scoring. Your essay will be scored on both the substance and the composition skills demonstrated, including the following elements: ideas, organization, style (diction and sentence structure), and mechanics (capitalization, punctuation, spelling, and usage). The raters will use the categories on page 14 when evaluating your essay. The score you receive for your essay will be the combined total of the two raters’ scores. (R. Exh. 2 at 12 of 39). At the referenced page 14, the test information guide sets forth in full the scoring rubric used by raters to evaluate GK essays. The rubric is simply a comparative description of the extent to which an essay demonstrates the competency and skills to be tested, on a scoring scale of one to six points. The rubric descriptions differentiate between the various skills to be tested in a way that identifies, as to each skill or group of skills, which essay is best, better, good, not-so-good, worse, and worst. But the evaluation of each skill is not separately scored; instead, the essay response is evaluated as a whole, with the various strengths and weaknesses weighed and balanced. Finally, the test information guide provides a sample essay test, with representative essay prompts in the same format that the examinee will see on the exam: two topics are set forth, with instructions that the examinee is to select one of the two topics. The information DOE makes publicly available is appropriate and sufficient to explain the GK essay exam and scoring process, and to allow an examinee to know what to expect in a prompt and what is expected of the examinee in a response. Score Verification An examinee who fails the GK essay test (or any other FTCE test or subtest) may request score verification to verify that the failed exam was scored correctly. The examinee has the right, by statute and rule, to review the test question(s) and response(s) that received a failing score. The score verification procedures, providing this review opportunity, are set forth in the FTCE rule. The score verification rule provides that DOE makes the determination as to whether an examinee’s test was scored correctly. DOE is authorized to consult with field-specific subject matter experts in making this determination. In practice, though not required by the FTCE rule, when a score verification request is directed to the scoring of a GK essay, DOE always consults with a field-specific subject matter expert known as a “chief reviewer.” Chief reviewers are another category of experts (in addition to raters and chief raters) retained by Pearson, pursuant to qualifications identified by DOE, and subject to DOE approval. Once approved by DOE, prospective chief reviewers undergo the same rater training in the holistic scoring process as do all other raters, to gain experience in scoring essays and undergo calibration to achieve scoring consistency. In addition, chief reviewers are given training for the chief reviewer role of conducting review and scoring of essays when scores have been contested. Unlike raters and chief raters, chief reviewers do not work at Pearson in Hadley; they are Florida experts in the field, with certification and experience teaching in Florida schools. Chief reviewers only become involved with GK essays when an examinee who failed the GK essay invokes the score verification process. A chief reviewer is assigned to evaluate whether that essay was scored correctly. As with the initial scoring, a chief reviewer is not given any information about the raters or about the examinee; the essay is assigned a blind, anonymous number. The chief reviewer conducts the evaluation by first going through the same step-by-step process as raters, following the same retraining and calibration steps that involve scoring many sample essays. Upon achieving success in the calibration test, the chief reviewer moves on to evaluate the assigned essay response independently, before reviewing the scores the raters gave to that essay. After reviewing the raters’ scores, the chief reviewer offers his or her view as to whether the essay score should stand or be changed, and provides a summary rationale for that opinion. This information is conveyed to DOE, which determines the action to take--verify or change the score--and notifies the examinee of the action taken. In the 14-month period from January 2016 through February 2017, two failing GK essay scores were changed by DOE to passing scores as a result of the score verification process. As with the overall passage rates, Petitioner characterizes this reversal rate as low, but no evidence is offered to prove that characterization. It is as reasonable or more reasonable to infer from the fact that GK essay scores are only rarely reversed through score verification that the scoring process works well. Petitioner’s GK Essay Attempts Petitioner took the GK essay test for the first time in July 2015. He received a failing score of four, with two points assigned by each of the two raters. Petitioner admits that he did little to nothing to prepare for the GK essay the first time. When taking the essay test, he ran out of time and recalls that he left the essay incomplete. The time pressure “had a huge deal with me not being able to provide enough specifics for it to make any sense at all where I was going with the essay.” (Tr. 75). Petitioner thought the passing score was six at the time, but his recollection is incorrect. The higher passing score of eight has been in place since January 2015, and has been the passing score for each of Petitioner’s GK essay attempts. FTCE examinees can retake failed subtests/sections, and need only retake the parts failed. There are no limits on the number of retakes. The requirements for retakes are that at least 30 days must have elapsed since the last exam attempt, and that examinees pay the registration fees specified in the FTCE rule for each retake of a failed subtest and/or section. Petitioner retook the GK essay test in February 2016. In preparation for this second attempt, Petitioner did not seek tutoring or spend much time training. As he explained, “I’m under the impression that I can write an essay.” (Tr. 21). Instead, he focused mostly on preparing for the timed aspect of the exam, making sure that he started when the clock started. Although his score improved from four to six, it was still a failing score. Petitioner did not invoke the score verification process to question the failing scores he received on his first two GK essays. Those two failing scores stand as final, as he did not challenge them. Petitioner took the GK essay test for the third time on June 25, 2016. This time, he prepared to some extent. In the month before the exam, Petitioner sought help from someone he described as a writing coach. The writing coach did not evaluate Petitioner’s writing so as to identify weaknesses; instead, she asked him what he thought his weaknesses were, and he responded that he did not know what his weakness is besides not being able to formulate his plan and map out his essay faster. As a result, she coached him on some mapping techniques, and on how to structurally organize an essay--with an introduction, followed by three points in paragraphs begun with transitional phrases, and a conclusion. Petitioner practiced a little with his writing coach, by email: she would send a prompt and he would write an essay, which he timed, and then send it back to her. They did this “a few times.” (Tr. 24). There is no evidence of record regarding the writing coach, other than that her name is Ms. Martin. She may have been Petitioner’s proposed witness who was allowed to appear from New York by telephone, but who was not called to testify. One of the things Petitioner learned from Ms. Martin was that in his introduction, he should “speak vaguely about” what will be covered. When asked if Ms. Martin actually said to be “vague” in the beginning, Petitioner said, “She may not have used the word vague, but that is the meaning that I got from what she said.” (Tr. 70). In preparation for his third attempt at the GK essay test, Petitioner also sought help from Jordan Gibbs, who was described as an educator who taught language arts for over 20 years. Petitioner testified that Mr. Gibbs is “our academy leader there[.]” (Tr. 24). However, Petitioner did not elaborate; it is unknown which academy is led by Mr. Gibbs, or where “there” is. Like Ms. Martin, Mr. Gibbs also addressed mapping techniques with Petitioner. Petitioner never sent any essay drafts to Mr. Gibbs for his review. Petitioner also reviewed GK essay preparation material on the DOE website. He reviewed sample prompts, but did not practice writing complete essays. He just looked at the sample prompts for purposes of mapping and planning an essay. Petitioner said that he found the preparation material useful to an extent, but did not think the sample prompts reflected the type of GK essay prompts in use when he took the test. A comparison of the sample GK essay prompts in the test information guide (R. Exh. 2 at 17 of 39) with the actual GK essay prompt Petitioner chose for his essay topic (Jt. Exh. 1 at 3 of 4) suggests otherwise. Although DOE obviously does not make available as samples the actual essay prompts actively being used in GK examinations, the sample prompts appear to be similar to Petitioner’s actual prompt in style, substance, and tone. It would be unreasonable for examinees to expect more from a testing agency than what DOE makes available. Petitioner’s score improved slightly in his third attempt at the GK essay test, but it was still a failing score of seven. One rater assigned the essay a score of three, while another rater scored the essay a four. Each of the three times Petitioner took the GK essay test, the two raters assigned scores that were consistent, in that they were either identical or adjacent (within one point of each other). Accordingly, a chief rater was never assigned for discrepancy resolution, as there were no discrepancies. After receiving notification of his third failing score, this time Petitioner invoked the score verification process. Petitioner completed a statement explaining why he believes his score was erroneous, which is in evidence as part of the confidential testing material. (Jt. Exh. 1 at 2 of 4). The statement set forth why he believes the essay demonstrated good organization, used transitional phrases, and addressed the topic. He acknowledged one misspelling, and acknowledged that his conclusion ended in mid-sentence, as he ran out of time. He added three words to complete the last sentence, and suggested that the ending should have been inferred from what he did say. DOE conducted its review, and the score was verified through a process consistent with DOE’s practice of consulting a chief reviewer who was qualified as a subject matter expert in the field of teaching in Florida and approved by DOE. The chief reviewer who undertook to verify Petitioner’s essay score conducted an independent evaluation of Petitioner’s essay following the same holistic method. Then the chief reviewer considered the scores separately assigned by the two raters who scored Petitioner’s essay. She concluded that the assigned scores of three/four should stand. The chief reviewer provided a summary rationale for her determination, offering her view that the essay borders on a three/three due to weak development.4/ The chief reviewer’s summary was provided to DOE for consideration. By letter dated September 27, 2016, Petitioner was notified by DOE that the “essay score that you questioned has been reviewed by a Chief Reviewer. As a result of this review, the Department has determined that the written performance section that you questioned is indeed scored correctly.” Petitioner was notified of his right to an administrative hearing pursuant to sections 120.569 and 120.57 to dispute the decision. Petitioner availed himself of that opportunity, and was given the chance in a de novo evidentiary hearing to present evidence to support his challenge to his exam score. At the hearing, Petitioner offered only his own testimony as support for his challenge to the scoring of his essay. Petitioner was not shown to be, tendered as, or qualified as an expert in either formal college-level English writing or scoring of essays. His attempt to compare isolated parts of the rubric to isolated parts of his essay is contrary to the holistic scoring approach used to score the GK essay. Petitioner offered no comprehensive, holistic evaluation of his essay as a whole, nor was he shown to be qualified to do so. Besides being contrary to the holistic scoring method, Petitioner’s critique of the scoring of his essay was wholly unpersuasive. Without undermining the confidentiality of the ingredients of Petitioner’s testimony (the essay prompt, his essay, and the historic anchors), overall, the undersigned did not find Petitioner’s critique credible or accurate. Although awkward to try to explain in code, some examples follow to illustrate the basis for this overall finding. Petitioner began his critique by reading the first three sentences--the introductory paragraph--of his essay. He said that each sentence had one topic, and that each of the subsequent three paragraphs in the body addresses one of those three topics. The problem with Petitioner’s explanation for the substantive organization of his essay is that the essay prompt identifies a single topic, not three topics. Petitioner failed to respond to the prompt’s single topic by introducing that topic as the essay’s theme, and developing that single theme in the body of that essay. Similarly, the concluding paragraph offers scattered thoughts, somewhat related to the three topics discussed in the essay. The essay’s weakness in development was a prominent point in the scoring rationale summaries written by the raters and chief reviewers. Petitioner specifically addressed only one aspect of the rubric considerations, addressing the extent to which an essay has errors in sentence structure, usage, and mechanics. As to this consideration, Petitioner stated that there were three spelling errors in his essay (up from the one error he identified in his score verification statement). He was critical of one rater’s comments for referring to grammatical errors, because Petitioner does not believe there were any grammatical errors in his essay. Petitioner’s assessment of his essay reflects his bias, because it fails under any objective analysis. In fact, Petitioner’s essay (Jt. Exh. 3) has both spelling errors and grammatical errors. In addition, the essay uses poor sentence structure in several instances, as well as poor word choices that interfere with an understanding of what Petitioner means. An example of a sentence with a grammatical error is the fifth sentence in paragraph 4. At the very least, the word “having” is required after the comma. With that addition, the sentence would only be awkward, instead of grammatically incorrect. An example of a poorly written sentence is the second sentence of the second paragraph. This sentence combines a misspelling, a misused word, and syntax that is awkward, at best. Petitioner must also acknowledge that the last sentence of his essay is another example of poor sentence structure, since it is an incomplete sentence without punctuation. It would be inappropriate for raters reviewing essays to fill in the gaps left by writers, whether those gaps were because of running out of time or otherwise. What Petitioner meant to write to complete the sentence is not something that can be added after-the-fact to cure the defect on the face of the essay. By the undersigned’s count, there are five misspellings in the essay, unless one counts “in to,” which should be “into,” as an error of grammar or syntax. The other misspellings were: easire (easier); savy (savvy); yeild (yield); and evironment (environment). In addition, Petitioner made several punctuation errors, failing to hyphenate two compound adjectives preceding nouns and presenting a single idea: cutting-edge technology; tech-savvy students. Petitioner also improperly omitted a hyphen in “self discipline.” Petitioner acknowledged some repetitive use of a particular word, but thought he only used that word twice. In fact, he used the word in both sentences one and two of the second paragraph, and then again in paragraph four. Only the first usage is arguably correct (but in an awkwardly written sentence). While used once, the word is an interesting one, Petitioner’s overuse and misuse of this word suggests a mechanical, as opposed to thoughtful, approach of injecting interesting words into the essay. Petitioner’s essay demonstrated good superficial structure, with an introductory paragraph, three paragraphs in the body that begin with good transitional words, and a concluding paragraph. The organizational structure may have earned Petitioner a score of four, as stated in that rater’s comments, but that same rater also repeated the comments of others that where the essay is weakest is in development. Petitioner offered his view that the only reason his essay received a failing score was because the raters considered it to be too short in length. While Petitioner is correct in noting that length is not a criterion, he mischaracterized the comments on this subject, by ignoring the criticisms of his essay that were made when the length of the essay was noted. The comments only mention the length of Petitioner’s essay as it correlates to other considerations, such as the weakness in development, the lack of specifics or examples, or the impact of a “number of misspellings, . . . usage issues, . . . and punctuation errors,” which accumulated to a notable level “given the shortness of the response.” (Jt. Exh. 5-A). Petitioner failed to prove his contention that an unauthorized criterion-- essay length alone--was applied in scoring Petitioner’s essay. Petitioner failed to prove that the holistic scoring of his essay was incorrect, arbitrary, capricious, or devoid of logic and reason. He offered no evidence that a proper holistic evaluation of his essay would result in a higher total score than seven; indeed, he offered no holistic evaluation of his essay at all. Petitioner’s critique of various parts in isolation did not credibly or effectively prove that his score of seven was too low; if anything, a non-expert’s review of various parts in isolation could suggest that a score of seven would be generous. But that is not the scoring approach called for here. Petitioner presented no evidence that any aspect of the GK essay process overall, including development, administration, evaluation, and score review, was arbitrary, capricious, unfair, discriminatory, or contrary to requirements imposed by law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner’s challenge to the failing score he received on the General Knowledge essay test taken in June 2016, and dismissing the petition in this proceeding. DONE AND ENTERED this 13th day of October, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 13th day of October, 2017.
The Issue Whether the Petitioner should receive a passing grade on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the Florida Medical Licensure Examination ("FMLE") administered November 15 and 16, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (2001); Rule 64B8-5.002, Florida Administrative Code. The Department is also authorized to administer licensing examinations to physicians seeking to practice medicine in Florida. Section 456.017, Florida Statutes (2002). Dr. Rivero was accepted as a candidate for the FMLE and sat for the examination on November 15 and 16, 2001. Dr. Rivero attained a scaled score of 332 points on the Basic Sciences & Disease portion of the examination and 331 points on the Clinical Application of Medical Knowledge portion of the examination. Each of these portions of the FMLE administered November 15 and 16, 2001, had a minimum passing score (also known as "cut score") of 350 points. On November 15, 2001, the first day of the examination, the Department staff who were to administer the examination were notified that the Federal Express shipment of examination materials was incomplete and did not include the laboratory value sheets and the answer sheets to be used for each portion of the examination. The supervisor of the examination administration arranged to have copies of the appropriate documents available that morning. The examination candidates, who had been told to arrive at the examination site at 7:30 a.m., were not admitted to the examination room until 8:30 a.m. as a result of the problem with the laboratory value and answer sheets. The candidates were told to skip the questions that required use of the laboratory value sheets and to write the answers in the examination booklets for the questions that required use of the answer sheets. The candidates were advised prior to beginning the examination that they would be allowed additional time to transfer their answers from the booklet to the answer sheet. The examination began at 9:30 a.m. on November 15, 2001, after a delay of one hour. The administration supervisor made an error calculating the time and gave the candidates four hours and ten minutes to complete the examination, rather than the prescribed four hours. In addition, all candidates who wanted additional time to transfer their answers from the examination booklet to their answer sheets were given as much additional time as necessary. Dr. Rivero experienced stress and nervousness as a result of the delay and confusion in the administration of the examination that might have affected her performance on the examination. She did, however, have sufficient time to complete the examination on November 15, 2001, and to transfer her answers to the answer sheet. The minimum passing score on both portions of the examination was 350 points. These "cut scores" were developed for the November 2001 FMLE using the Angoff method of scoring. The Angoff Method is a widely used method for selecting the "cut score" for an examination. For each administration of the FMLE, a group of physicians are chosen to review the examination and determine, question by question, the percentage of minimally competent people who would answer each question correctly. The "cut score" for each portion of the examination is developed by averaging the responses of the physicians. The Angoff method was a valid methodology for ascertaining the "cut scores" for the November 2001 administration of the FMLE. After the examination was scored, a group of physicians and a psychometrician met to review all of the questions that were the subject of a complaint by examination candidates and all of the questions that a statistically significant number of candidates answered incorrectly. The group also conducted a Point by Serial review of the examination, which involves establishing that the candidates scoring highest on the examination answered a particular question correctly, while candidates scoring lowest on the examination answered the same question incorrectly. As part of this post-examination review, the November 2001 FMLE was reviewed for discrepancies between the order of the answers to questions in the English version of the examination and the order of the answers to questions in the Spanish version of the examination. No discrepancies were found.2 In addition, Dr. Rivero conceded that there were no discrepancies between the English and Spanish versions of the questions she answered incorrectly. The results of the review of the November 2001 FMLE established that the examination was fair, reliable, and valid. The November 2001 FMLE was developed, scored, and reviewed in accordance with the procedures normally used by the Department. Dr. Rivero has failed to establish that she should be awarded additional credit for any question the Department scored as incorrect on the Basic Sciences & Disease and on the Clinical Application of Medical Knowledge portion of the examination.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Ana Rivero challenging her failing scores on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the FMLE administered November 15, and 16, 2001. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002.
