Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state agency. Petitioner is a male who is now, and was at all times material to the instant case, unmarried. He is a teacher by profession. Since moving to Florida in the summer of 1992, however, he has been unable to obtain a full-time teaching position. Petitioner received a Bachelor of Arts degree from the State University of New York at New Paltz in December of 1984 and a Master of Arts degree (in "teaching/special education") from Manhattanville College in May of 1989. Prior to moving to Florida in the summer of 1992, Petitioner was employed as: a music instructor at the Kingston Conservatory of Music in Kingston, New York (from May of 1984 to September of 1985); a business instructor at the Westchester Business Institute in White Plains, New York (from September of 1985 to June of 1986); a substitute teacher in Pelham, Eastchester, Tuckahoe and Bronxville, New York (from September of 1986 to June of 1988); a music and vocational education teacher of 11 to 15 year old special education students at a public school in New York City (from September of 1989 to March of 1990); a classroom teacher of fourth grade special education students at a public school in the Bronx, New York (from March of 1990 to June of 1990); a classroom teacher of first through third grade special education students at a public school in Yonkers, New York (from September of 1990 to June of 1991); and an integration specialist involved in the provision of educational services to special education students attending public school in and around Jacksonville, Vermont (from February of 1992 to June of 1992). On October 15, 1992, the Department's Bureau of Teacher Certification issued Petitioner a Statement of Eligibility, which provided, in pertinent part, as follows: when: THIS IS YOUR STATEMENT OF ACADEMIC ELIGIBILITY FOR SPECIFIC LEARNING DISABILITIES (GR, K-12), PER REQUEST OF 10-9-92, VALID UNTIL OCTOBER 15, 1994. The State of Florida issues two types of certi- ficates for full time teaching; a nonrenewable Temporary Certificate valid for two years and a Professional Certificate valid for five years. The attached Form CF-106a, FLORIDA TEACHER CERTIFICATION REQUIREMENTS, outlines the criteria for the issuance of these certificates. The Temporary Certificate is issued to allow time to complete requirements for the Professional Certificate. Your application for teacher certification has been received and evaluated. Based upon current requirements, you will be eligible for a two- year nonrenewable Temporary Certificate valid for two consecutive school fiscal years covering SPECIFIC LEARNING DISABILITIES (GRADES K-12) You obtain employment with a Florida public, state supported, or nonpublic school which has an approved Florida Professional Orientation Program and your employer requests issuance of the certificate. Your employer submits a finger print card which has been processed by the Florida Department of Law Enforcement and the Federal Bureau of Investigation. . . Please note that if you are not employed and the issuance of your certificate is not requested by October 14, 1994, your Statement of Eligibility will expire. . . . At all times material to the instant case, there was, on a statewide basis in Florida, as determined by the Department, a "critical" shortage of teachers qualified to teach students with specific learning disabilities (SLD). (There were, however, certain school districts, including the Broward, Palm Beach, Collier and Monroe County school districts, that, because of the relatively high salaries they offered or their attractive geographic location, or for other related reasons, did not have a "critical" shortage of qualified SLD teachers.) The Department's Bureau of Teacher Certification suggested to Petitioner that he take advantage of the services offered by OTRR in his efforts to obtain a teaching position in Florida. OTRR assists teachers seeking employment in Florida by, among other things, providing them with an "information packet" containing: general information concerning Florida's public school system, its students and teachers; a map showing the school districts in the state; the names, addresses and telephone numbers of persons to contact regarding employment opportunities in each school district; other useful telephone numbers; salary information, by district; information concerning Florida's teacher certification process; and information about the Great Florida Teach-In, an annual event (held in late June/early July 1/ ) organized by OTRR at which recruiters from school districts around the state have the opportunity to meet and interview with teachers interested in obtaining teaching positions in their districts. 2/ In addition to this "information packet," OTRR also sends to interested teachers two forms which the teachers are instructed to fill out, sign and return to OTRR: an application to register to participate in the next Great Florida Teach-In; and a Teacher Applicant Referral form. On the Great Florida Teach-In registration application form, applicants are asked to provide the following information: the date of the application; their name, address and telephone number; the date they will be able to commence work; the position(s) sought; whether they hold a valid Florida teaching certificate- if so, in what subject area(s), and, if not, whether they have applied for certification and the subject area(s) in which they expect to receive certification; whether they have taken and passed the Florida Teacher Certification Examination and, if so, which part(s); whether they hold a teaching certificate from another state and, if so, in what subject area(s); whether they have ever had a teaching certificate or license revoked, suspended, or placed on probation and, if so, on what ground(s); whether they have ever been the subject of any disciplinary action and, if so, the nature and date of such action and why it was taken; whether they have ever been dismissed, asked to resign or not had a contract renewed and, if so, the reason(s) therefor; the total number of days they have been absent from school or work in the last three years and the reason(s) for these absences; and all colleges/universities from which they have received degrees, when they attended these institutions, when they graduated, the kind of degrees they received, the subjects they studied (major and minor), and whether their grade point average was higher than 2.5. On the Teacher Applicant Referral form, applicants are asked to provide the following information: the date of the application; their name, address, telephone number and social security number; the date they will be able to commence work; the position(s) sought; whether they hold a valid Florida teaching certificate- if so, in what subject area(s), and, if not, whether they have applied for certification and the subject area(s) in which they expect to receive certification; whether they hold a teaching certificate from another state and, if so, in what subject area(s); whether they are a U.S. citizen and, if not, whether they have a resident alien work permit; and the institutions from which they have received degrees, the kind of degrees they have received, and their major course of study at these institutions. On neither the Great Florida Teach-In registration application form nor the Teacher Applicant Referral form are applicants asked to provide information regarding their sex or marital status. (It may be possible, however, to ascertain an applicant's sex from the name of the applicant appearing on the form.) Following the suggestion of the Department's Bureau of Teacher Certification, Petitioner contacted OTRR. He thereafter received from OTRR an "information packet," as well as a registration application form for the 1993 Great Florida Teach-In (scheduled to be held June 27 through July 1, 1993) and a Teacher Applicant Referral form. Petitioner filled out and signed the Teacher Applicant Referral form on or about November 10, 1992, and returned the completed and signed form to OTRR. On the form, Petitioner indicated, among other things, that he was interested in "Special Education Teacher Type Positions- SLD" and that he was "Florida certified [in] Specific Learning Disabilities." In view of Petitioner's first and middle names (Steve Joseph), both of which he included on the form, it should have been obvious to anyone reviewing the form that it was submitted by a male. Petitioner, however, provided no information on the form suggesting that he was a single male. Petitioner kept a copy of the original completed and signed Teacher Applicant Referral form he submitted to OTRR. On or about October 2, 1993, he signed the copy and sent it to OTRR. At all times material to the instant case, it was the routine practice of OTRR to take the following action in connection with completed and signed Teacher Applicant Referral forms it received: Information on the forms was inputted and stored in OTRR's computer system. The forms (and copies thereof made by OTRR) were then filed in alphabetical order and by subject area. They remained on file for approximately a year, after which they were purged. When a school district contacted OTRR seeking help in its efforts to fill a particular teaching position, 3/ OTRR would pull the forms of all those applicants who, based upon the subject area of the position sought to be filled and any other criteria specified by the school district, appeared (from the information contained on their forms) to meet the needs of the school district. Copies of these forms, along with a computer printout containing the names, addresses, telephone numbers, certification status and citizenship of these applicants, were sent to the school district. On occasion, information concerning these applicants was provided to the school district over the telephone. At no time did OTRR fail to refer an applicant to a school district because the applicant was a male or was single. 4/ OTRR did not deviate from its routine practice in its handling and treatment of either the original Teacher Applicant Referral form that Petitioner submitted on or about November 10, 1992, or the re-signed copy of the original he submitted on or about October 2, 1993. (Petitioner, however, has not been contacted by any school district purporting to have received his name from OTRR.) 5/ Petitioner also filled out and signed the registration application form for the 1993 Great Florida Teach-In and sent it to OTRR, 6/ but he did not do so in a timely manner. (The application was dated June 27, 1993, the date the 1993 Great Florida Teach-In began.) Petitioner did not attend the 1993 Great Florida Teach-In, nor did he attend the event in any subsequent year. Petitioner has applied for teaching positions at public schools in Broward County (where he has resided since he moved to Florida in the summer of 1992), Dade County, Palm Beach County, Collier County, Monroe County and one other Florida county (located in the northern part of the state). He also has applied for teaching positions at at least one Florida private school, Lighthouse Point Academy, which is located in Broward County. Notwithstanding these efforts on his part, Petitioner has not received any offers of full-time, permanent employment and he remains unemployed. 7/ Petitioner has not taken any part of the Florida Teacher Certification Examination. The Statement of Eligibility that the Department's Bureau of Teacher Certification issued Petitioner on October 15, 1992, expired on October 15, 1994. The Department did not in any way discriminate against Petitioner on the basis of his sex or marital status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order dismissing Petitioner's amended unlawful employment practice complaint on the ground that the evidence is insufficient to establish that the Department committed the unlawful employment practice alleged therein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of August, 1996. Officer Hearings 1550 STUART M. LERNER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Hearings Division of Administrative this 14th day of August, 1996.
The Issue The issue is whether Petitioner’s Petition for Relief should be dismissed for failure to allege facts sufficient to invoke the jurisdiction of the Florida Commission on Human Relations (the “FCHR”) under section 760.10, Florida Statutes.1 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
Findings Of Fact The Department is an employer as that term is defined in section 760.02(7). The Petition for Relief alleges the following ultimate facts, which are accepted as true for purposes of ruling on the Motion: I believe I have been discriminated against based on my race (Black), sex (male), and age (over 40). I also believe I am being retaliated against for filing a complaint with Florida Commission on Human Relations and in Federal Court. I have been working within the Gadsden County School system since January 2008 as a substitute teacher and have teaching experience. Around or on October 2020, I applied for a Social Studies position and was not offered an interview by the principal because DOE deliberately and maliciously held clearance letter to deny employment. Section 760.10 titled “Unlawful employment practices,” is the statute under which the FCHR exercises jurisdiction of the Petition for Relief. Section 760.10(1)(a) states that it is an unlawful employment practice for an employer to discriminate against any individual “with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” The Motion states that Petitioner is not, and never has been, an employee of the Department. Respondent’s Chief of Human Resource Management, David Dawkins, conducted a system-wide search and verified that Petitioner has never been employed by the Department. Mr. Dawkins’s affidavit to that effect was attached to the Motion. Mr. Jones did not contest the contents of Mr. Dawkins’s affidavit. The Motion also references section 760.10(5) as a possible avenue under which Mr. Jones might seek relief against the Department. Section 760.10(5) provides: Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. In theory, the Department’s alleged “deliberate and malicious” withholding of Mr. Jones’s “clearance letter,” i.e., a Temporary Certificate to teach, could constitute a violation of section 760.10(5). However, the Department pointed out that after Mr. Jones applied for a Florida Educator Certificate, the Department sent him an “Official Statement of Status of Eligibility” on October 12, 2017. A copy of the Department’s letter to Mr. Jones was attached to the Motion. The letter informed Mr. Jones that he was eligible for a Temporary Certificate covering Social Science (Grades 6-12), if he completed the following requirements and documented them to the Bureau of Educator Certification (“BOE”): verification of employment and request for issuance of certificate on the appropriate certification form from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program. results of your fingerprint processing from the Florida Department of Law Enforcement and the FBI. Your employer will assist you in completing the fingerprint process. If your application or fingerprint report reflects a criminal offense or suspension/revocation record, your file will be referred to Professional Practices Services for further review. Issuance of your certificate will be contingent upon the results of this review. The Motion states that Mr. Jones submitted only the results of his fingerprint processing to BOE. Therefore, BOE was legally precluded from issuing a Temporary Certificate to Petitioner. Attached to the Motion was the affidavit of Daniel Moore, Chief of BOE, attesting to the fact that a request for issuance from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program is required in order for BOE to issue a Temporary Certificate. Mr. Moore’s affidavit is confirmed by Florida Administrative Code Rule 6A-4.004(1)(a)2., requiring verification of full-time employment by a Florida school district before a Temporary Certificate may be issued. Mr. Jones did not contest the contents of Mr. Moore’s affidavit. Based on the foregoing, the Motion requests entry of a summary recommended order of dismissal because Mr. Jones’s pleadings and admissions of fact, including those in his response to the Motion, are facially and conclusively insufficient to prove that he was ever an employee of the Department, or that the Department’s failure to issue a teaching certificate to Mr. Jones was based on anything more than the ministerial operation of the Department’s own rule. Mr. Jones’s response to the Motion does not address, and therefore appears to concede, the Department’s statement that he is not and has never been an employee of the Department. Mr. Jones did not allege that he has ever been an employee of, or an applicant for employment by, the Department. Mr. Jones’s response does not address the fact that the Department’s rule forbids it to issue a Temporary Certificate without verification of full- time employment. Rather, Mr. Jones pursues an argument alleging that the denial was somehow based on his criminal record and that denial on that basis is discriminatory because of the disproportionate percentage of African American and Latino citizens who have criminal records in comparison to Caucasians. Mr. Jones claims that the Department’s stated reason for denying him a Temporary Certificate was pretextual and that the actual reason was racial discrimination premised on his criminal record. In a related case, Mr. Jones has alleged that the Gadsden County School Board declined to hire him because of his criminal record, and that this declination was a pretext for discrimination based on race, age, and/or sex. The merits of Mr. Jones’s case against the local school board and its subsidiary institutions are not at issue here. The question in this case is whether the Department had anything to do with Mr. Jones’s failure to gain employment by the Gadsden County School Board. The undisputed facts establish that the Department’s role in this process was purely ministerial. Had Mr. Jones secured employment, the school that hired him would have requested the issuance of a Temporary Certificate by the Department. By operation of rule 6A-4.004(1)(a)2., the Department would have issued the Temporary Certificate. The Department had no role in the decisions of the local school officials to hire or not hire Mr. Jones. It is found that Mr. Jones has not alleged facts sufficient to state a case against the Department under section 760.10, and that he would not be able to prove at hearing that he was ever an employee of the Department, or that the failure to issue a Temporary Certificate to Mr. Jones was anything more than the Department’s following the requirements of its own rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Education did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dan Saunders Florida Department of Education Turlington Building, Room 101 325 West Gaines Street Tallahassee, Florida 32399 Ronald David Jones 1821 McKelvy Street Quincy, Florida 32351 Paula Harrigan, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32399-0400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue in this case is whether Respondent, Batumane Shad Banto Kasanganay (Respondent), committed the offenses alleged in an Administrative Complaint issued June 24, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, as the Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate who are alleged to have violated the provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2008). At all times material to the allegations of this case, Respondent has held Florida Educator's Certificate No. 752042, covering mathematics, that is valid through June 30, 2010. From 1998 through the 2007 school year, Respondent was employed by the Palm Beach County School District as a math teacher at Bak Middle School (Bak). During his tenure at Bak, Respondent's students performed well on the Florida Comprehensive Assessment Test (FCAT) and the school became favorably ranked for its math achievement. Additionally, Respondent's students improved FCAT scores in mathematics over the course of his time with them. Prior to working with the students at Bak, Respondent worked in Okeechobee, Florida, and was teacher of the year one of the two years he taught at the Eckerd Learning Center, a school for juvenile offenders. Prior to the conduct complained of in this case, Respondent had no prior disciplinary concerns. Respondent had received satisfactory evaluations every year. Respondent, or "Mr. Kas" as he is also referred to in the record, came to the United States from central Africa. He spoke no English on his arrival but had received a degree in mathematics and physics from the Institute Alingea Studies. After moving to North Carolina, Respondent received a degree from Western Carolina University in Cullowhee, North Carolina, and became a United States citizen. Respondent travels under a S. passport and, at the time of the hearing in this cause, resides in Palmerston North, New Zealand. Respondent created a corporation named Mr. Kas, Inc., and opened "Mr. Kas Learning Center" in 2000 in order to better assist students with math anxiety to learn and improve mathematics skills. The learning center was a private business not affiliated with the Palm Beach County Schools where Respondent taught or tutored students from elementary school age through doctoral candidates to improve their math skills and to perform favorably on examinations. Respondent operated this "for profit" entity and received payment from those who participated in the after school program. The record is not clear as to whether Mr. Kas, Inc., was formally "doing business as" the "Mr. Kas Learning Center," but it is definite that only Respondent individually committed the acts complained of in the instant case. That is to say, all comments that were alleged to have been uttered were made by Respondent. No other individuals who may have attended or been associated with Mr. Kas, Inc., or the "Mr. Kas Learning Center" were involved. The alleged offending behavior was attributed solely to Respondent. None of the alleged behavior occurred during Respondent's work day at Bak. Respondent was a member of the Palm Beach County Classroom Teachers Association (CTA). It was customary for the CTA to provide workshops for its members and on several occasions Respondent was asked to conduct workshops. Additionally, Respondent assisted new teachers, members of the CTA, to pass the state certification examination. Respondent tutored/taught CTA members for compensation to pass the General Knowledge math portion of the certification examination. These sessions were generally group endeavors and Respondent was compensated based upon the number of persons in attendance. In addition to the foregoing, Respondent also worked with firefighters, police, nurses, and others who were required to pass a math competency section as part of their professional testing. Monday through Friday Respondent opened his learning center in the afternoon after school for school children. During this time he worked with students to complete their homework, prepare for tests, and study for exams. On Saturdays Respondent used the learning center to conduct group sessions to work with adults and professionals. The Department of Education publishes a preparation guide to address the General Knowledge test that must be passed for teacher certification in Florida. Respondent purchased the guide and used it and other questions he collected to develop a learning tool for persons who would take the Florida Teachers Certificate Examination and use his learning center for help to pass the math portion of the exam. Jennifer Tomko was a first year middle school teacher in Palm Beach County, Florida, during the 2006/2007 school year. Ms. Tomko applied for her teaching certificate with the Department of Education and was required to pass the General Knowledge examination, including the math section. On two occasions Ms. Tomko did not pass the math section. On her third attempt to pass, Ms. Tomko became distraught as she believed she had again failed to achieve a passing score on the math test. A test proctor observed Ms. Tomko's demeanor and suggested that she consider attending one of Respondent's tutor sessions at his learning center. Ms. Tomko had a "mentor teacher" at her school who had been tutoring her for several months. The mentor, Judith Warren, encouraged Ms. Tomko to attend Respondent's session. To that end, Ms. Tomko signed up for Respondent's Saturday math help session. When Ms. Tomko met Respondent and told him of her prior failed attempts to pass the math section of the exam, he assured her that with his help, she would pass the test. He remarked that it was her "lucky day." As part of his guarantee that she would pass the math section, Respondent provided Ms. Tomko with key phrases of the actual test questions along with the correct answer for the question. Respondent instructed Ms. Tomko to make flash cards to include the key phrase of the questions and to look for the answers he provided. Since Ms. Tomko did not have index cards with her, she used sheets of paper to make columns. The columns had the "key phrase" and the "answers" provided by Respondent. When Ms. Tomko got home, she copied the columns of information onto cards. The front of the card with the "key phrase" as provided by Respondent, the reverse of the card held the "answer." Respondent also gave Ms. Tomko a handout that included information regarding computing the distance between two cities. The information denoted in Respondent's handout contained real questions from the Florida teacher examination. These "live" questions were verbatim from the test and were sufficient to demonstrate Respondent had "collected" real information from the teacher examination in order to prompt his students with the correct answers. In fact, Respondent told Ms. Tomko to call him immediately after the test to let him know of any difficult questions. Respondent represented that with information regarding difficult questions, he could better assist future applicants taking the exam. Presumably, this is how Respondent was able to assemble the information he provided to Ms. Tomko and to assure her that she would pass the math examination. Obviously, by collecting real questions from test participants Respondent would be able provide answers that would allow success on the exam. According to Ms. Tomko during the tutoring session she attended, Respondent did not teach math strategies or formulas for completing the math section of the examination. Instead, Respondent offered questions (identified by the key phrases) and answers that the participants were to memorize. For example, if the question included something about a "toy in box" the answer was "13 feet." Actual examples of the test questions (or key phrases) along with the answers provided by Respondent are omitted here as they are confidential as a matter of law. See § 1008.23, Fla. Stat. (2008). Nevertheless, the key phrases and answers provided by Respondent were, in fact, actual questions from the math section of the examination. Respondent did not consider his assistance "cheating." Ms. Tomko, however, felt uncomfortable about memorizing the answers based upon the key phrases. According to Ms. Tomko, whose testimony has been deemed credible, Respondent instructed her to take the computer and not the written version of the test. Respondent told Ms. Tomko to memorize the card information previously described and to not finish too quickly in order to avoid suspicion. Ms. Tomko felt Respondent's words and behavior were contrary to her moral code and violated her responsibility as an educator to be a role model for students. Because she was offended, the evening after the Saturday tutor session with Respondent, Ms. Tomko contacted her mentor who then encouraged her to take the matter to their principal. The principal reported the case to the Department of Education and the instant administrative action ensued. The flash cards produced by Ms. Tomko contained real, "live" questions from the Florida Educational Certificate examination. All of the flash cards were constructed using the information from Respondent. DOE is charged with the responsibility of maintaining the examination questions and answers in a secure manner. The questions and answers are confidential and are not to be made public. The development of the examination questions cost over $300,000 and involved the efforts of DOE staff as well as private contractors who assist in the preparation of test questions. The examination is maintained in a locked vault with limited access to even DOE employees. Although test questions may be circulated indefinitely, different versions of the examination with different questions included are developed so that the same exact version is not repeatedly given. Nevertheless, by circulating the "key phrase" of a question with its answer, it would be possible for someone to circumvent the version differences among the exams since the questions themselves would remain the same. Once the instant case was referred to the DOE, Respondent became aware that he was under investigation. Respondent resigned his position with the Palm Beach County School District at the end of the 2006/2007 school year. Respondent's learning center was also closed near that time. Subsequently, Respondent left the country and currently resides in New Zealand. Respondent's claims regarding the closure of his learning center, the loss of records pertaining to the tutoring efforts made on behalf of CTA members, and other conflicting stories pertinent to this case result in the inescapable conclusion that Respondent was not forthright regarding his learning center and the materials and information he personally supplied to persons taking the teacher certification examination. In this case Respondent was charged with the following statutory violations: COUNT 1: Respondent is in violation of Section 1008.24(1), Florida Statutes, in that Respondent knowingly and willfully violated test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education or Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 1008.22. COUNT 2: Respondent is in violation of Section 1008.24(1)(a), Florida Statutes, in that Respondent gave examinees access to test questions prior to testing. COUNT 3: Respondent is in violation of Section 1008.24(1)(b), Florida Statutes, in that Respondent copied, reproduced, or used in any manner inconsistent with test security rules all or any portion of any secure test booklet. COUNT 4: Respondent is in violation of Section 1008.24(1)(d), Florida Statutes, in that Respondent made answer keys available to examinees. COUNT 5: Respondent is in violation of Section 1008.24(1)(g), Florida Statutes, in that Respondent participated in, directed, aided, counseled, assisted in, or encouraged any of the acts prohibited in this section. COUNT 6: Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 7: Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Additionally, Respondent was charged with the following rule violations: COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(b), Florida Administrative Code, in that Respondent revealed, copied or otherwise reproduced tests or individual test questions. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(e), Florida Administrative Code, in that Respondent provided answer keys to examinees. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(f), Florida Administrative Code, in that Respondent has participated in, directed, aided, counseled, assisted in, or encouraged an activity which could result in the inaccurate measurement or reporting of examinees' achievement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner and the Education Practices Commission enter a Final Order that suspends Respondent's teaching certificate for a period not to exceed one year, imposes an administrative fine in an amount not less than $2,000.00, and requires Respondent to take remedial instruction regarding the ethics applicable to educators in the State of Florida at his own expense before his certification can be reinstated. DONE AND ENTERED this 19th day of June, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 June, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Joan Stewart, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Professional Education Subtest (hereinafter referred to as the "Subtest") of the Florida Teacher Certification Examination tests the examinees' mastery and knowledge of general teaching methods and strategies. It is offered four times a year. The Subtest consists of approximately 130 to 135 multiple choice questions (each with four choices from which the examinees must choose the correct answer). The questions are printed in a question booklet. There is a separate answer sheet on which examinees record their answers to these questions by blackening, with a pencil, the appropriate bubble. Examinees are given two and a half hours to complete the Subtest. The Subtest is a criterion referenced test as opposed to a norm referenced test. To pass the Subtest, an examinee must attain a scaled score of 200. The Subtest is administered by the Office of Instructional Resources of the University of Florida (hereinafter referred to as "OIR") pursuant to a contract that OIR has with the Department. Dr. Sue Legg is the head of OIR. Pat Dovall is one of her assistants. Among OIR's responsibilities is the development, in cooperation with the Department, of a Test Administration Manual for the Subtest (hereinafter referred to as the "Manual") to guide and assist test site administrators, test room supervisors and test room proctors in discharging their duties at the test administration sites. The Manual developed by OIR provides that the following procedures should be followed in the seating of examinees: 3. Procedures for Seating of Examinees Seat examinees in the same seat they used for the morning session. For retake candidates testing only in the afternoon, follow the procedures below. Place a test book receipt card on each desk where an examinee will sit. Be certain you and your assistants have unimpeded access to every examinee. Assign examinee to a specific row or column of chairs. DO NOT ALLOW EXAMINEES TO SELECT THEIR OWN SEATING POSITIONS. Arrange seating in a manner which will separate those who are obviously acquainted. Seat examinees so they cannot see their neighbors' responses or exchange information. Fill in appropriate chairs in each row or column in order to expedite distribution and collection of test materials. Place left handed examinees in a separate row or in the last seat or each row of right-handed examinees. If use of chairs with right-handed tablet arms cannot be avoided, seat left-handed examinees with vacant chairs to their left for use as writing surfaces. If an examinee objects to his seating assign- ment, the room supervisor should make every attempt to work out a satisfactory solution. If this is not possible, the center supervisor should discuss the problem with the examinee. 4. Seating Arrangements Level Seating Arrangements: Seat examinees directly behind one another, facing in the same direction. Maintain a three-foot separation. Inclined Seating Arrangements: Maintain a three-foot separation front and rear and side-to-side. With respect to the subject of "individual examinee irregularities," the Manual states the following: Report on the Irregularity Report name social security number test name time by reset watch Misconduct Defined as any of the following: creating a disturbance; giving or receiving help; using notes, books, calculators; removing test materials or notes from the testing room; attempting to take a test for someone else. ANY EXAMINEE MAY BE DISMISSED WHO IS ENGAGING IN ANY MISCONDUCT AS DEFINED ABOVE: Two witnesses (or more) must observe the misconduct. The test center supervisor or room supervisor must be one of the witnesses. A full written report, signed by all witnesses, must be sent to OIR immediately. Cheating Defined as an examinee giving or receiving assistance during a testing period. Dismiss examinee from the testing areas if either of the above occurs. Examinee may not return. Dismiss examinee who repeatedly, after warning, continues to work on a test after time has elapsed. Dismiss examinee who uses prohibited aids. Include the following on the Irregularity Report: Examinee's identification Type of "cheating" and details of activity Warnings given Time on the reset watch Test section Degree of certainty Name of persons confirming the information Information given to the examinee at the time of the incident Attach examinee's answer folder to the Irregularity Report and return to OIR. Suspected Cheating Record name of examinee suspected. Record name of persons from whom you suspect the examinee was copying. Warn the examinee that you suspect cheating. Move examinee to provide further separation. Disturbances Defined as behavior of examinee during testing that disturbs others; loud noises or other conditions that lead to complaints by the examinees. Individual disruptive behavior Warn examinee that dismissal will result if behavior continues. Report the incident on the Irregularity Report. Outside disturbance Stop test. Have examinees close test books with answer folders inserted. Note time on the reset watch. Adjust time when test is resumed to ensure a full test period. OIR is also responsible for the selection of test administration sites, subject to the approval of the Department. The North Campus of Broward Community College (hereinafter referred to as "BCC") was selected by OIR and approved by the Department as one of the test administration sites for the August 5, 1995, Subtest. For the August 5, 1995, Subtest at BCC, Dotlyn Lowe was the OIR- slected test site administrator, Greta Jackson was the test room supervisor, and Consuelo Johnson and Marcia Cadogan were the test room proctors. Each had served in similar capacities for prior examinations and, having previously reviewed the Manual, 2/ each was aware of its contents at the time of the administration of the August 5, 1995, Subtest. The August 5, 1995, Subtest at BCC was administered in a classroom which had approximately 50 seats arranged in eight or nine rows. Each seat had a right-handed tablet arm for use as a writing surface. Petitioner was one of the approximately 35 examinees who took the August 5, 1995, Subtest at BCC. He sat in the last occupied row of seats (in Seat Number 42). 3/ Seated immediately to his left, approximately two to two and half feet away (in Seat Number 41), was another examinee, George Sauers. On various occasions during the Subtest, Petitioner looked at Sauers' answer sheet to see Sauers' answers. 4/ Jackson, Johnson and Cadogan all witnessed Petitioner engage in such conduct. Jackson first noticed such conduct approximately an hour after the Subtest had begun. From her vantage point, she saw that Petitioner, instead of facing straight ahead toward the front of the room, was sitting with his body angled to the left in a position that enabled him to look at Sauers' answer sheet and see Sauers' answers without having to turn his head. 5/ Petitioner's left leg was crossed over his right leg and his left ankle was resting on his right knee. Petitioner had placed his question booklet on his left knee, but he was not looking at the booklet. Rather, his eyes were focused on Sauers' answer sheet. Jackson continued to watch Petitioner for another ten to twenty minutes from various parts of the classroom. During that time, she observed him repeatedly shift his eyes toward Sauers' answer sheet and then mark answers on his own answer sheet. Jackson then asked the two test room proctors, Johnson and Cadogan, to observe Petitioner. Johnson and Cadogan complied with Jackson's request. For the next fifteen to twenty minutes Johnson and Cadogan watched Petitioner and saw him engage in the same conduct that Jackson had observed. They then reported their observations to Jackson. Jackson thereupon consulted the Manual, specifically that portion dealing with the subject of "individual examinee irregularities," to determine what action she should take. Although she was certain that Petitioner had copied answers from Sauers' answer sheet, she was uncertain as to whether the provisions of the Manual relating to "cheating" or those relating to "suspected cheating" applied to such conduct. It was Jackson's understanding that an examinee who copied answers from another examinee's answer sheet was guilty of "cheating," as opposed to "suspected cheating," as those terms were used in the Manual, only if the "copying" examinee was knowingly helped by the examinee from whom he had copied, which did not appear to be the situation in Petitioner's case. Jackson, however, was not sure that this interpretation of the Manual was correct. She therefore dispatched Cadogan to seek guidance from Lowe, the test site administrator. Lowe sent her assistant, Jacqueline Edwards, to speak with Jackson. Edwards and Jackson determined that the provisions of the Manual relating to "suspected cheating" should be followed in dealing with Petitioner's conduct. Petitioner therefore was not removed from the test site. Rather, after being told that he was suspected of cheating, he was asked to change his seat (which he did without any argument) and allowed to remain in the classroom to finish the Subtest. In his new seat, Petitioner sat facing forward and had his test materials in front of him. He made no apparent effort to look at any of his new neighbors' answer sheets. Petitioner handed in his answer sheet before the expiration of the two and a half hours the examinees were given to finish the Subtest. Later that same day, following the administration of the Subtest, Jackson prepared and submitted a written irregularity report concerning Petitioner's "suspected cheating." 6/ Subsequently, on August 10, 1995, and again on August 28, 1995, Jackson sent memoranda to OIR accurately describing the incident. The memoranda were signed not only by Jackson, but also by Johnson and Cadogan, who did so to indicate that the information contained in the memoranda was accurate to the best of their knowledge. The August 28, 1995, memorandum was the most detailed of Jackson's three written statements 7/ concerning the incident. It read as follows: On Saturday, August 5, 1995, during the Professional Education Examination, I observed Mr. Lamothe looking at another examinee's (George Sauers) answer sheet. I observed Mr. Lamothe at his desk with one leg [a]cross the other and his test booklet approxi- mately 1 ft. away from him, resting on his crossed leg. However, Mr. Lamothe's pupils were in the extreme left corner of his eyes, looking onto Mr. Sauers' desk. Mr. Lamothe would then look up and once looked directly at me, pause as though he was thinking and then marked an answer on his answer sheet. I observed this incident, within an hour of the test, over a period of 15-20 minutes[.] I then asked the proctors (Consuelo Johnson and Marcia Cadogan) to also watch the examinee. After approximately 15-20 minutes, the proctors confirmed that they also observed Mr. Lamothe cheating. I sent Ms. Cadogan to the Test Center Supervisor, Dotlyn Lowe, for advice. Mr. Lamothe was not dismissed from test room, due to our interpretation of the Test Manual instructions on page 14, number 3 (that defines cheating as giving or receiving assistance, which was not the case). Therefore, we preceded as per the Test Manual instructions on page 15, number 4. I then informed Mr. Lamothe that he was observed/suspected of cheating and asked him to change his seat. Mr. Lamothe got his belongings together and moved to the front of the room. Mr. Lamothe finished his exam without further incident. Mr. Lamothe was sitting in the back of the room in Seat Number 42 and Mr. Sauers was sitting to Mr. Lamothe's left in Seat Number 41. Petitioner's scaled score on the August 5, 1995, Subtest was 215. Sauers scored a 229. The mean scaled score of the 2478 examinees taking the August 5, 1995, Subtest at all locations was 215.32. Of these 2478 examinees, 94.2 percent received a passing scaled score of 200 or above. 8/ 33. After reviewing Jackson's August 5, 1995, irregularity report and her August 10, 1995, and August 28, 1995, memoranda, 9/ Dr. Loewe consulted with his supervisor, Dr. Thomas Fisher. Dr. Loewe and Dr. Fisher determined, based on the information provided in these documents, that Petitioner's score on the August 5, 1995, Subtest should be invalidated. By letter dated September 18, 1995, Dr. Loewe informed Petitioner of this determination. The letter read as follows: This letter is in reference to your score on the August 5, 1995 Florida Teacher Certification Examination Professional Education test adminis- tration. At that administration test proctors witnessed you repeatedly looking at the answer document of another examinee. This constitutes cheating. As a result your score will not count and no score report will be mailed. 10/ If you dispute the material facts on which this decision is based, you may request a formal hearing by submitting a written request within 20 days of the date of this letter to: Dr. Thomas Fisher Administrator, Student Assessment Services Suite 701, Florida Education Center Florida Department of Educatio Tallahassee, Florida 32399 Failure to timely request a hearing constitutes waiver of administrative proceedings, subject only to judicial review pursuant to Section 120.68, Florida Statutes. If you wish to complete the teacher certification testing requirements you will need to register for and retake the Professional Education test at a scheduled administration. In response to Dr. Loewe's letter, Petitioner wrote the following letter, dated to September 28, 1995, to Dr. Fisher: This letter is in response to the memo that was sent to me on Septemb[er] 18, 1995 in regard to looking at the answer sheet of another examinee. I am appalled by these allegations. I spent several months studying for this exam and did not expect a response such as this (only a positive one). I am most definitely disputing these allegations. I request a formal hearing as soon as possible. Please send me further information on a time and place so I will be able to resolve this issue. A comparison of Petitioner's answers with those given by Sauers and the other examinees who took the August 5, 1995, Subtest lends further support to the conclusion that Petitioner cheated on the examination, as alleged in Dr. Loewe's September 18, 1995, letter to Petitioner. Petitioner answered 37 of the 132 questions on the August 5, 1995, Subtest incorrectly. Sauers answered 23 of the 132 questions incorrectly. Twenty-one of the questions Petitioner answered incorrectly, Sauers also answered incorrectly. Petitioner and Sauers chose the identical incorrect response on 16 of the 21 questions they both answered incorrectly. This exceeds what would be expected based on random chance. On 11 of these 16 questions where Petitioner and Sauers selected the same incorrect answer, their answer was different than the answer most of the examinees selected. This is highly unusual. For example, on Question 71, 77 percent of the 2478 examinees chose "C," which was the correct answer. Petitioner and Sauers both selected "A," a choice made by only 5 percent of the 2478 examinees. Petitioner took the Subtest again, for the fifth time, on October 28, 1995. In addition to having taken the Subtest in August of 1995, he had also previously taken the Subtest in April of 1994, August of 1994, and April of 1995. On the April, 1994; August, 1994; and April, 1995 Subtests he had received failing scaled scores of 192, 199 and 194, respectively. On the October 28, 1995, Subtest, Petitioner received a failing scaled score of 198. The mean scaled score of the 1744 examinees taking the October 28, 1995, Subtest at all locations was 213.11. Of these 1744 examinees, 95.4 percent received a passing scaled score of 200 or above. Petitioner was among the 81 examinees who took the Subtest on both August 5, 1995, and October 28, 1995. Of these 81 examinees, 67 scored higher on the October 28, 1995, Subtest than they did on the August 5, 1995, Subtest. Such an increase is typical. Nine of the 81 examinees scored lower on the October 28, 1995, Subtest than they did on the August 5, 1995, Subtest. Of these nine examinees, four scored one point lower, one scored three points lower, two scored four points lower and one scored six points lower. Petitioner was the other examinee who scored lower on the October 28, 1995, Subtest. His scaled score on the October 28, 1995, Subtest was 17 points lower than his scaled score on the August 5, 1995, Subtest. Such a significant decrease in scoring is consistent with his having cheated on the August 5, 1995, Subtest. Because Petitioner cheated on the August 5, 1995, Subtest by copying answers from Sauers' answer sheet, his score on that examination cannot be considered a reliable and accurate indicator of the extent of his mastery and knowledge of the general teaching methods and strategies covered on the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Education enter a final order invalidating the score that Petitioner attained on the August 5, 1995, Subtest because he cheated on the examination by copying answers from the answer sheet of another examinee. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of January, 1996. STUART M. LERNER, 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 19th day of January, 1996.
