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 in the case is whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida teacher, holding Florida Educator's Certificate 573730 (covering the areas of elementary education and administration/supervision) which is valid through June 30, 2006. At all times material to this case, the Respondent was employed as a teacher at Clearview Elementary School in the Pinellas County School District. In January of 2000, a test known as the Parallel Reading Florida Comprehensive Assessment Test (PR-FCAT) was administered to Pinellas County elementary school students in the third, fourth, and fifth grades. The PR-FCAT is a "practice" examination, but is used by teachers to assess the reading and writing ability of students. School officials also use the test as a predictive tool in identifying students who may be eligible for summer school programs. The test is administered three times a year. Other than encouraging students to complete the test, teachers are directed to refrain from assisting students taking the PR-FCAT. Teachers are not allowed to read questions to students or to record answers. Teachers are not to provide any direction related to the content of student's answers to questions on the test. After the test is administered, the teacher grades the student responses and then returns the materials to the "test coordinator" for the school. The test coordinator for Clearview Elementary in January of 2000 was Joyce Beattie. A "dual scoring" system is used to grade the exam. The test coordinator cuts the score sheets to remove the grades marked by the class teacher, and distributes the score sheets to a second teacher for grading. When the second teacher completes grading the student responses, the score sheets are returned to the test coordinator who consolidates the grades. After administration of the PR-FCAT at issue in this case, Ms. Beattie did not immediately receive the Respondent's test booklets. Eventually, Ms. Beattie asked the Respondent for the materials and received them from her. Contrary to the established procedure, the score sheets returned to Ms. Beattie had been cut and taped back together prior to Ms. Beattie's receipt of the materials. The Respondent asserts that she did not cut the score sheets prior to returning them to Ms. Beattie. Ms. Beattie is certain that when she received the sheets, they were already cut and taped. Ms. Beattie believes that the Respondent directly handed the score sheets to her, but does not recall commenting to the Respondent on the unusual cutting and taping of the score sheets. After administration of the tests and before they were returned to Ms. Beattie, other school employees had access to test materials. When the Respondent initially attempted to turn in the test materials to Ms. Beattie, the Respondent could not locate Ms. Beattie and left them in a mailroom accessible to other employees. Several days later, the test booklets were back in the Respondent's mailbox, apparently having been returned to her. Thereafter, the tests were returned to Ms. Beattie. The evidence is insufficient to establish how, and by whom, the score sheets were cut and taped. In any event, because the score sheets had been altered improperly, Ms. Beattie discussed the issue with an assistant principal, and they decided to replace the cut score sheets and forward the tests to a second teacher for grading. Although Ms. Beattie originally planned to use two teachers identified as "Painter" and "Carlton" to grade the tests taken by the Respondent's class, time for completing the grading process was short, and so she gave the tests to Amy Van Wormer. Ms. Van Wormer is a teacher who was familiar with some of the students in the Respondent's class. As she graded the tests, she noticed that in some answers, the handwriting was inconsistent and appeared to be that of more than one person. She completed her scoring and reported her concern to Ms. Beattie. The school principal and, subsequently, the school district's Professional Standards Office were informed of the situation. Michael Bessette, an administrator from the district's Professional Standards Office, investigated the situation. He met several times with the Respondent. At the first meeting between the Respondent and Mr. Bessette, the Respondent denied having provided any assistance to students in her class during the testing process. A second meeting between the Respondent and Mr. Bessette occurred after the students had been interviewed and a handwriting analysis had been performed. Based on the student interviews and the handwriting analysis, Mr. Bessette had concluded that the Respondent had written one of the student's answers and believed she had written in others. At the second meeting, after confronting the Respondent with the information, the Respondent acknowledged having written one answer in a student's test book, and asserted she had forgotten offering the assistance and therefore had denied providing assistance in the prior meeting. At hearing, the Respondent testified that she observed a student crying with her head down on her desk, that the Respondent inquired as to the problem, and that the student said she was sick and could not write. The Respondent testified that she wrote down an answer dictated by the child. Based on the stipulation between the parties and admitted into evidence, the child was ill and wanted to go home, the child asked the Respondent for help, and the Respondent wrote the answer after the child said what she would have written. At the hearing, the Petitioner presented the deposition testimony of Thomas W. Vastrick, a certified forensic document examiner, who reviewed writing samples and some of the test books at issue in this case. Mr. Vastrick's testimony concurs with the evidence clearly establishing that the Respondent wrote an answer in one student's test book. The Petitioner also alleges that the Respondent supplemented the answers in other students' test books. The evidence fails to support the allegation. Based on the testimony of Mr. Vastrick, the evidence establishes that in answers written by some students were supplemented with additional information, but is insufficient to establish that the Respondent is the person who wrote the additional information. Mr. Vastrick testified that although there were "indications" that the Respondent wrote the additional information, he could not make such a determination "with a degree of certainty."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order reprimanding the Respondent for violating the Principles of Professional Conduct, and placing her on probation for a period of one year. DONE AND ENTERED this 23rd day of August, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2002. COPIES FURNISHED: Pamela Cooper, Esquire 118 North Monroe Street Tallahassee, Florida 32399 Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert F. McKee, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue for consideration in this case is whether Respondent’s certification as a teacher in Florida should be disciplined because of the matters alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and certification of teachers in Florida and for the regulation of the teaching profession in this state. Respondent was certified under Florida Educator’s Certificate Number 517092, covering the areas of Early Childhood Education and Elementary Education, with an English Speakers of Other Languages endorsement, through June 30, 1999. On or about April 4, 1995, Respondent was employed as a second-grade teacher at Tuttle Elementary School in Sarasota County, Florida. She was assigned homeroom number R5, which was contiguous to room R6, assigned to Ms. Frosch, also a second- grade teacher. Room R5 was the end room of four rooms in a row. Room D7 was assigned to Ms. Davenport, and Room D8 was assigned to Ms. Wajda. Respondent taught a self-contained second grade class made up of students, some of whom were learning disabled, some emotionally handicapped, and some who spoke English as a second language. These students took their special classes, (music, art, etc.), at a time other than when the continuous progress students took them. Tuttle Elementary School was scheduled to administer the National Achievement Test on April 4 - 18, 1995. Prior to April 4, Ms. Kurtin, an Assistant Principal at Tuttle, had scheduled a series of meetings in advance of the testing to brief the teachers and advise them of the ground rules for the testing process. Second grade teachers were scheduled to meet at 1:45 p.m. on Tuesday, March 22, 1995, and English Speakers of Other Language (ESOL) teachers were scheduled to meet at 3:00 p.m. on Wednesday, March 23, 1995. Respondent attended at least one of those meetings. At the meetings, the teachers were briefed on, among other matters, how to maintain security of the test booklets. Included was an injunction not to teach the students directly from the booklets in advance of testing. The test materials for the students were given to the individual teachers the day before the testing was to begin. The teachers had received their test manuals earlier and were instructed to safeguard them to insure the integrity of the test process. Testing for the second grade was to last between 25 to 40 minutes per day over a period of 6 to 7 days. Students in grades 1 through 3 were to place their answers directly into the test booklets. Students in grades 4 and 5 were provided answer sheets on which to place their answers. After each test session, the teachers were to collect the test booklets and, prior to turning them in for grading, go through them to erase or otherwise remove extraneous marks on the pages which might confuse the machine grading of the students’ test answers. After cleaning, the test booklets were to be secured until the next testing session or the end of the testing. One day during the testing period in the spring of 1995, Ms. Frosch was alone in her classroom while her students were at specials after the morning testing session. At approximately 10:15 a.m. she went outside her room for a break. When she went back inside, she heard Respondent talking with her class in the Respondent’s classroom. Though there is what appears to be a brick wall between Ms. Frosch’s room and that of the Respondent, Ms. Frosch contends she was able to hear what Respondent was saying, and it became clear to her that Respondent was reading exactly from the test booklet. In fact, Ms. Frosch took out her own booklet and was able to follow along with the Respondent. She heard Respondent read question 7, and heard the students give the answer. If a child gave the wrong answer, Respondent corrected the answer. Ms. Frosch, feeling that someone else should verify what was happening, went through the door which separated her room from that of Ms. Davenport, her team teacher. The desks of Ms. Frosch and Ms. Davenport were both near the doorway which joined their rooms. Frosch had Davenport come into her room and listen at the wall. Ms. Davenport heard Respondent reading word-for- word from the test booklet. By this time, Respondent was at question 12, and Ms. Davenport was able to follow along in Frosch’s test booklet. Though she only stayed to listen a short while, Davenport was shocked to hear what was going on because the material being discussed was on the test scheduled to be administered the next day. Ms. Frosch also got Ms. Wajda, from the next room down, and her aide, Ms. Salazar, to come to the room to listen also. Both Wajda and Salazar also heard Respondent reading the test questions aloud, word-for-word, to her students. By this time, Respondent was on page 11 of the booklet at questions 34 and 35. They heard Respondent read a question and the four possible answers, and then respond if the child selected the correct answer. Rather than use the in-room call button, Ms. Wajda went to get Ms. Kurtin, the Assistant Principal, at her office. She did this because in her opinion, it was inappropriate for Respondent to be doing what she was doing. Ms. Kurtin believed she was being taken to the Respondent’s room for a student discipline problem. She had no idea of the nature of the situation until she got there. When Ms. Kurtin reached Respondent’s room, she observed Respondent seated at her desk reading from what appeared to be a test booklet. Kurtin could not say that Respondent was reading from it verbatim. When questioned by Kurtin, Respondent said she was practice testing, but was changing the words in the questions. Ms. Kurtin advised respondent that it was inappropriate to use the real test booklets to practice from and to please put them away. Respondent did as Ms. Kurtin asked, but Kurtin felt nonetheless that she had to report the matter, which she did. Respondent has been a teacher since graduation from college in 1981. She started teaching at Tuttle at the second- grade level during the 1990-1991 school year. During the 1994- 1995 school year, the year in issue, she was a regular classroom teacher with 25 students of varying cultures and abilities. Only 6 of her students were regular students. The others were learning disabled, emotionally handicapped, or ESOL students. Respondent had worked with Ms. Frosch and some of the other teachers on teams for five years. She claims to be a soft- spoken individual and does not believe she could have been heard through the brick wall which separated her room from that of Ms. Frosch. She claims that as an African-American, she did not fully fit in with the other teachers, and her opinions and ideas were not given the same deference and consideration as those of the others. Notwithstanding that all of the other witnesses claimed to have experienced a congenial working, if not social, relationship with Respondent, she asserts that Frosh and Davenport would comment about her classroom discipline skills to the Principal who would, in turn, report the comments to her. Ms. Chester has administered the NAT many times before and knows the requirements for test security. On April 4, 1995, the day in issue, she arrived at school at the normal time. Because it was a test day and students normally pulled out were not taken, she had all her students with her in the room. For some reason not fully disclosed, her students were not to be tested until the next day. To spend the time productively, without following the regular lesson plan while the students were still coming in, she took her teacher’s manual, not, she claims, the actual test booklet, and started working with the children. She is adamant that she was not reading from the actual test manual. Though not made clear by the evidence at trial, it is most likely that she was reading from the teachers’ test booklet which, while not given to the students, contains the same materials and questions. Respondent is puzzled by several matters. She does not accept that the complaining teachers could have heard her as they claim, because she speaks so softly. There is, however, a door on either side of the room which joins it to the outside and to the adjoining room. She does not understand how she could have progressed from question 7 or 10, where she was first heard, to questions 34 or 35, where she was reading when Ms. Kurtin came in. It is not clear how much time passed from Frosch’s initial alert until the arrival of Ms. Kurtin. Finally, she does not know why the in-room call button was not used to summon Ms. Kurtin instead of Ms. Wajda going to get her in person. None of these questions has any material impact on the ultimate determination of the issue of whether Respondent was reading from the test manual. None of the teachers who testified on behalf of the Petitioner was of the opinion that the Respondent’s action in reading to her students from the test booklet was harmful to their mental health or physical safety. By the same token, no one opined that her actions exposed the students to unnecessary embarrassment or disparagement. No independent evidence was introduced by the Petitioner to support such allegations. It was accepted, however, and it is found, that Respondent’s use of the test booklet to practice with the children, regardless of her belief that the students would not remember enough to do them any good, was not professionally honest. It is irrelevant that no benefit to the Respondent could have resulted from the possibility that her students might have scored higher on the tests than they might have had she not read the questions to them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order finding Respondent guilty of exposing her students to conditions harmful to learning and of failing to maintain honesty in all professional dealings. It is further recommended that her certification as a teacher be placed on probation for one year, that she be reprimanded, and that she be required to take at least six hours of continuing education in the area of teacher ethics and testing procedures. DONE AND ENTERED this 13th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1998. COPIES FURNISHED: Barbara J. Staros, Esquire 215 South Monroe Street Second Floor Tallahassee, Florida 32301 Stanley Marable, Esquire 677 North Washington Boulevard Sarasota, Florida 34236 Kathleen M. Richards Executive Director Educational Practices Commission 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Iris Anderson, Program Specialist Procedural Safeguard Department of Education Bureau of Education for Exceptional Students 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be subject to demotion for directing staff to violate testing protocols related to the administration of the February 28, 2012, FCAT Writes test (FCAT test); for subsequently failing to report violations that were known to Respondent at the time of the administration of the FCAT test; and for making inappropriate comments to staff regarding the investigation of the reported violations, as alleged in Petitioner?s January 3, 2013, Notice of Discipline and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent, Sharon Sanders, was the principal at Windy Hill, a Duval County public school. She has been in the field of education for approximately 35 years, and has been with the Duval County public school system for 13 or 14 years. Ms. Sanders had been the principal at Windy Hill for four-and-a-half years prior to her demotion, and previously served as the principal at Holiday Hill Elementary School for four years, with an intervening stint of a year or so as the school district?s executive director of language arts. Since the demotion that forms the basis for this proceeding, Ms. Sanders has been the assistant principal at Landmark Middle School. In her 35 years of service as an educator prior to the incidents that are the subject of this proceeding, Ms. Sanders had not been subject to any disciplinary action. On March 6, 2012, the Duval County school district launched the investigation that resulted in the January 3, 2013, issuance of the Notice of Discipline. The investigators assigned by the school district were Mr. Thomas Scott, the district assessment coordinator, and Ms. Jessica Altman, a school district investigator. General FCAT Testing Duties and Responsibilities The Florida Department of Education issued a 2011-2012 Writing Test Administration Manual (DOE Manual) to govern and direct the process of administering the FCAT test. In order to ensure that the appropriate personnel were familiar with its contents, the DOE Manual provided that “[e]ven experienced district and school assessment coordinators and test administrators are responsible for reading and becoming familiar with all information in this manual.” Ms. Sanders was not a district or school assessment coordinator, or a test administrator. The DOE Manual establishes duties and responsibilities to be performed by the district assessment coordinator, school assessment coordinators, test administrators, and proctors for ensuring that standards for testing facilities, accommodations, pre-test and post-test procedures, and test administration are met. Other than general admonitions against violating test security applicable to anyone having exposure to the test or the process of its administration, the DOE Manual imposes no duties or responsibilities regarding FCAT testing on school administrators unless they hold one of the listed positions. Ms. Sanders has never participated in FCAT testing as a member of the school administration, properly leaving duties and responsibilities for testing to the assigned school assessment coordinator and test administrators. During FCAT testing, Ms. Sanders would generally go to her office and “let the testing coordinator and the teachers handle testing because they're the ones with the training and they're the ones with the expectation that they should handle it.” Ms. Sanders? position regarding her role in the FCAT-testing process is consistent with the DOE Manual. Windy Hill FCAT Assessment Coordinator At all times pertinent to this proceeding, Kasey Williams was the assigned FCAT school assessment coordinator for Windy Hill, having held that assignment for two years prior to the February 28, 2012, FCAT Writes exam. She had assisted as co-coordinator for a year previous to her assignment. Based on Ms. Williams? experience and training, Ms. Sanders had a justifiable expectation that she would be capable of performing the responsibilities assigned to her as set forth in the DOE Manual. As a result of personal issues unrelated to her employment, Ms. Williams routinely arrived late for work. Although the Windy Hill school workday started at 7:40 a.m., Ms. Williams? normal arrival time was between 8:00 and 8:10. Ms. Sanders was willing to accommodate Ms. Williams, allowing her to work a flexible schedule “as long as she was doing her job and making sure everything was taken care of and she was willing to stay late and make sure everything was handled.” Whether she stayed late is difficult to determine, since Ms. Williams rarely signed in and out of work, a task expected of and performed by other teachers and staff. In the weeks leading up to the administration of the FCAT test, Ms. Williams? personal issues had gotten to the point that she was observed crying on numerous occasions, walking out of her office on the telephone crying, and snapping at teachers and administrators. She was planning to move out of her home on the weekend following the FCAT test. Ms. Williams? job performance was affected by her personal situation. Pre-FCAT Staff Meeting Several weeks before the FCAT test, a meeting was held in Ms. Sanders? office to discuss preparations for the FCAT test. Attendees, in addition to Ms. Sanders, were Ms. Rebecca Nelson, Mr. Chris Bacca, and Ms. Branaii Kennell. Ms. Williams, as the school assessment coordinator, had been advised of the meeting and was expected to attend. As the participants were assembling, Ms. Williams “stuck her head in” and advised that she would not be attending the meeting, but rather had an unspecified meeting “off-campus.” The purpose of the off-campus meeting was not explained. The greater weight of the evidence demonstrates that Ms. Williams knew of the pre-FCAT meeting, but chose to be elsewhere. When Ms. Williams made her brief appearance at the meeting, Ms. Sanders, consistent with her practice when teachers miss faculty or planning meetings, advised her to “make sure you get with. . . one of us and find out what you need to know.” Ms. Kennell knew that Ms. Williams was not at the meeting, but did not know why she was not there. In that regard, Ms. Sanders was not certain that Ms. Kennell had arrived for the meeting when Ms. Williams made her appearance. Items for discussion at the pre-FCAT staff meeting included where to do testing, assignment of teachers as administrators and proctors, accommodations for ESE students, the need for seating charts -- in general the “nitty-gritty things.” The issue of student seating was not discussed. Harris Hall, a large, carpeted multipurpose room with an elevated stage, was suggested as the testing location because students had been going to Harris Hall since the beginning of the year for collaborative writing labs and writer?s workshops. A consensus among the attendees developed that Harris Hall would be the setting that the children would be the most comfortable in, and would be an appropriate location for a preparatory Writer?s Camp and the FCAT testing. The plan was to have basic testing conducted on the floor level of Harris Hall, and to have ESE students test on the smaller stage level, with large flat-screen televisions and a white board used to visually separate the areas. The ESE teacher, Ms. Miller, was to be consulted to ensure that the arrangement was suitable to meet the accommodations required by her students? Individualized Education Programs (IEPs). If Ms. Miller decided that Harris Hall was not suitable to accommodate her students? IEPs, a different location would be provided. Ms. Williams did not follow up with Ms. Nelson about the meeting, and there was no evidence that she followed up with any other attendee. Ms. Williams? testimony that, by holding the pre-FCAT meeting as previously scheduled, “[m]y administrator chose to pretty much coordinate the FCAT without me” is not supported by the evidence, and is rejected. Based almost entirely on Ms. Williams? self-serving statements, Mr. Scott determined, and made part of his report, that Ms. Williams was “excluded” from the meeting. Mr. Scott?s investigatory finding is contrary to the greater weight of the evidence. Harris Hall Preparation As the FCAT test approached, and in order to ensure that Harris Hall could accommodate students for the Writer?s Camp and the FCAT test, Ms. Sanders prepared a rough sketch showing tables and chairs on the floor level and the stage of Harris Hall. Ms. Sanders gave the sketch, which included the dates on which the tables and chairs were needed, to the school custodian. The sketch was not intended to be a seating chart, but was for the purpose of making sure that tables and chairs were brought to Harris Hall so that the teachers and test administrators involved in the Writer?s Camp and the FCAT test would not have to get them on their own. It was then the responsibility of the test administrators to arrange them, and to make the final decisions as to where the children were to sit. Writer?s Camp A “Writer?s Camp” designed to familiarize students with, and prepare them for, the FCAT test has been conducted at Windy Hill for at least five years. A writer?s camp was conducted at Holiday Hill Elementary School during the period when Ms. Sanders was the principal and Ms. Nelson was the instructional coach, and was implemented at Windy Hill when Ms. Sanders and Ms. Nelson were reassigned to Windy Hill. The purpose of Writer?s Camp is to recognize the work of the students over the course of the year, and to build up their confidence through guest speakers and activities. The Windy Hill Writer?s Camp has become a model that is used at other schools in the district. Ms. Sanders had been asked by Sylvia Johnson, a district school administrator, to use her program as a model for other schools. In order to implement that request, Ms. Nelson has met with principals and fourth- grade teachers at elementary schools in the district to instruct them on developing writer?s camps at their schools. The Windy Hill Writer?s Camp was generally the same as camps operated in at least six other elementary schools in the district. Writer?s Camp was to be held on February 21-24 and 27, 2013 in Harris Hall. Ms. Sanders authorized teachers who had been designated as test administrators for the FCAT test to develop the expectations for the camp, identify the speakers, develop the lessons, and plan how the students were to be broken into small groups. The agenda and schedule were developed by Ms. Nelson, Ms. Kennell, Mr. Bacca, and Ms. Hurst working as a team. Ms. Sanders did not participate in the planning. Rather, she provided the teachers and Ms. Hurst with the opportunity to work together. Consistent with the written schedule developed by the planning group, Writer?s Camp was held for several hours per day for five days preceding the FCAT test, commencing on Tuesday, February 21, 2012. Writer?s Camp did not take up the entirety of the school day, though it did focus on writing for more than the normal period. For the five days on which Writer?s Camp was held, the written schedule allotted a total of 10 hours for Writer?s Camp. The remaining 18.5 hours of the scheduled portion of the school days were to be devoted to math and science instruction, recess, lunch, “resource/common planning,” and “share time.” The written schedule generally reflected what was done on those days. During the period that Writer?s Camp was ongoing, Ms. Payne found sufficient time to teach math and science in her classroom. Ms. Kennell testified that she did not teach other subjects except to go over homework and worksheets during the days on which Writer?s Camp was held, but admitted that it is up to the teacher?s discretion as to how much time they spend on various subjects in their classroom. Ms. Boney testified that she could not teach math to her fourth-grade students because of their participation in Writer?s Camp. She acknowledged that she had up to two hours per day for subjects other than Writer?s Camp, which time included lunch, recess, and bathroom breaks. The greater weight of the competent, substantial, and credible evidence in this case indicates that there was sufficient time during the day for instruction in math and reading to take place, though not to the extent that it might have been taught without Writer?s Camp. The fact that Ms. Kennell and Ms. Boney felt that they were unable to teach other subjects appears to be a function of their own classroom organization, rather than a lack of time. After the FCAT Writes test, most teachers temporarily increased their focus on other subjects so as to equalize the time spent on each subject. A district math coach came to Windy Hill for five Fridays after the FCAT test was done for a kind of informal math camp. Ms. Payne chose to take advantage of the math coach and as a result believed that her students did not lose out on any math instruction as a result of Writer?s Camp. Ms. Boney did not opt to use the services of the district math coach for reasons that were not well explained, although Ms. Kennell and Ms. Boney had their students do “double block math” the week following Writer?s Camp so that they did not miss anything. Since the specifics of classroom instruction are up to each teacher?s discretion, the manner by which Ms. Kennell and Ms. Boney chose to make up the class time was by no means improper. There is nothing inappropriate in concentrating on writing leading up to the FCAT Writes test, as long as there is a greater emphasis on the other subjects after the FCAT Writes test is complete. In that regard, Mr. Scott acknowledged that a school may conduct a writer?s camp at the temporary expense of instruction in other subjects, as long as the time for those other subjects is balanced out with greater instruction at a later time.1/ Even though he acknowledged that a balancing of instructional time was appropriate, Mr. Scott did not discuss the Writer?s Camp with Mr. Bacca, Ms. Payne, or Ms. Nelson, did not receive or review the written schedule and curriculum, and did not ask the fourth-grade teachers whether time in Writer?s Camp had been subsequently balanced out with time devoted to other subjects. As justification for his failure to ask questions that would reasonably bear on whether the Writer?s Camp violated section 1008.22(4), Mr. Scott testified that “writing camp had been done in the past and it was not precedent . . . for there to be a math camp or for there to be a reading camp.” Mr. Scott?s assumption was without any support in the record of his investigation or of this proceeding. Despite his failure to review the written schedule or to conduct meaningful interviews regarding the issue, Mr. Scott testified as to his understanding that students “spent five days in Harris Hall preparing for the FCAT Writes by doing practice prompts and that type of thing,” and that “from what I gathered,” Writer?s Camp was all day long. Mr. Scott?s understanding of the Writer?s Camp schedule is unsupported by competent, substantial, and credible evidence in the record. What is clear from the record of this proceeding is that Writer?s Camp did not take up the entire day on the days of its administration, and that the time spent on focusing on writing before the FCAT test was “balanced out” with greater instruction in other subjects the following week. The manner in which such balancing was accomplished was within the discretion of the classroom teachers, and was not the decision of Ms. Sanders or the school administration. The School Assessment Coordinator Engages Ms. Williams was an experienced school assessment coordinator. Ms. Sanders had no reason to doubt that Ms. Williams would fail to perform her duties as the school assessment coordinator as she had done in the past in a very reliable fashion. Having assigned responsibility for the FCAT test preparations to the person designated in the DOE Manual as having such responsibility, a person she reasonably believed to be a competent member of her staff, Ms. Sanders was not remiss in having confidence that Ms. Williams would perform her duties. Ms. Williams made no effort to engage in planning for the upcoming FCAT test until February 22, 2012, the day after Writer?s Camp started, and four school days before the FCAT test was to be administered. On that date, Ms. Williams sent an e-mail to Ms. Sanders in which she stated that “[t]his one snuck up on me.”2/ She then testified at the hearing that “the FCAT always snuck up on us.” The evidence demonstrates that remainder of the staff appeared to be fully engaged in their preparations for the FCAT test, including Writer?s Camp. The only person that the FCAT “snuck up on” was the person with the greatest assigned and expected responsibilities, Ms. Williams. Ms. Sanders responded to Ms. Williams? February 22, 2012, e-mail by suggesting that Ms. Nelson would help with the selection of proctors. Proctors were thereafter selected, and were in attendance during the administration of the FCAT test. Ms. Sanders also advised Ms. Williams that Ms. Turner would “send information” to the teachers and proctors about picking up the manual on Friday, and meeting on Monday afternoon for training. Ms. Turner had no specific recollection of sending information, but it would have been consistent with her normal practice of complying with Ms. Sanders? requests to have done so. Ms. Sanders responded and assisted Ms. Williams in a reasonable and appropriate manner. Her offer of modest assistance cannot reasonably be construed as an assumption of control over the duties of the school assessment coordinator. In the days following her February 22, 2012, e-mail, Ms. Williams did little to fulfill her duties as the school assessment coordinator. The only “preparation” performed by Ms. Williams involved her effort to locate partitions that she believed should have been placed at the testing tables to create visual barriers between students. As will be discussed in detail herein, Ms. Williams? belated effort to obtain partitions was rushed and disorganized. More to the point, there is little in the way of competent, substantial, and credible evidence that Ms. Sanders was told of Ms. Williams? efforts until minutes before the test was to begin. The DOE Manual requires that the school assessment coordinator train test administrators and proctors prior to the test. Such training is typically performed well in advance of the test. Ms. Williams determined that she could fulfill her obligation to train test administrators by providing them with copies of the DOE Manual on the afternoon before the FCAT test for them to review on their own. Ms. Williams asserted that she typed up “brief training notes” to hand out with the DOE Manual, though no other witness mentioned having received notes from Ms. Williams. With her distribution of the DOE Manuals, Ms. Williams “preparations” for the FCAT test were complete. February 28, 2012 - Testing Day On the day of FCAT testing, Ms. Williams showed up for work at approximately 8:10 a.m. Ms. Williams saw no problem with arriving late to work on testing day because, with regard to the necessary preparations, “usually most of it's done prior to the morning of testing.” To the extent that FCAT preparations were done, they were done in spite of her lack of preparation. Ms. Turner encountered Ms. Williams as Ms. Williams arrived for work. It appeared to Ms. Turner that Ms. Williams was having emotional problems as she was teary-eyed and visibly upset. Ms. Turner went with Ms. Williams to her office due to her concern for Ms. Williams? well-being. Ms. Turner spoke with Ms. Williams about her needing to move, her having ongoing family issues, and it having been a rough night for her. Ms. Turner knew that Ms. Williams had responsibilities for the administration of the test, and wanted to make sure that she was alright. Ms. Williams? account of the discussion differs from that of Ms. Turner. Ms. Williams testified that Ms. Turner “spent 40 minutes in my office berating me.” She further testified that Ms. Turner instructed her to pack her things and get ready to leave campus, a statement finding no support in the investigative report or otherwise in the record of this proceeding. The preponderance of the competent, substantial, and credible evidence adduced at the hearing fails to support a finding that Ms. Turner berated Ms. Williams on the morning of the FCAT test, that she interfered with Ms. Williams? duties as school assessment coordinator, or that she suggested to Ms. Williams that she needed to leave the school campus while the FCAT test was ongoing. Ms. Williams estimated that her discussion with Ms. Turner lasted for approximately 40 minutes. Accepting Ms. Williams? time estimate, she began to distribute FCAT test materials to the test administrators at approximately 8:50 a.m. Each of the four test administrators received his or her tests and materials in turn, counted them, and signed for them. The process took, in Ms. Williams? estimation, a total of ten minutes. According to the security logs, Ms. Kennell entered Harris Hall at 8:50 a.m., Mr. Bacca and Ms. Miller at 9:00 a.m., and Ms. Nelson at 9:20 a.m. By the time Ms. Williams got to Harris Hall, the students were assembled “in the front corner with Mr. Bacca reading a book or talking to them.” Since Mr. Bacca entered Harris Hall with his materials at 9:00 a.m., the time necessary for him to put his things down, assemble a group of fourth-grade students, and start to read to them, suggests that Ms. Williams showed up well after 9:00 a.m. for the 9:30 a.m. test. The circumstances regarding Ms. Williams? appearance in Harris Hall, and the testing conditions that form the grounds for the School Board?s Notice of Discipline, will be discussed in detail herein. Ms. Williams returned to her office. Ms. Sanders then delivered her pep talk to the students. The talk was brief, whereupon Ms. Sanders went to her office. Ms. Sanders had no further involvement with the testing. At the conclusion of the pep talk, Ms. Nelson took about 17 high-performing students to Room 21 for testing because that was where they had received the majority of their writing instruction during the year. The remaining students were individually seated by the test administrators. The basic students were seated at tables at the floor level of Harris Hall, and the ESE Students were seated at tables on the stage. Ms. Miller, the ESE teacher, and the person most qualified and knowledgeable about her students? IEPs and accommodations, had no issue with her students being tested on the stage. There was no evidence that the accommodations for the ESE students included anything other than additional time for testing. Mr. Scott was critical of the arrangement, testifying that if a prompt had to be read to an ESE student, other students probably would have heard it. However, Mr. Scott did not review any of the IEPs to determine what accommodations were provided, did not know whether any verbal prompts were necessary or required, and otherwise had no evidence to suggest that the testing of the ESE students had the potential to, or did, cause a disruption to any student being tested in Harris Hall. After the students were seated, Mr. Bacca read the testing scripts to the students and testing commenced. Mr. Bacca gave the students the required warning with ten minutes remaining, and the basic testing ended as scheduled without incident. At the conclusion of basic testing, and after a short break, Ms. Miller?s ESE students resumed testing in Room 21, which had been vacated by Ms. Nelson?s students. There, they were accommodated with additional time to complete their tests. Although Mr. Scott found it unusual for students to move during the break, there was no allegation or proof that allowing the ESE students to complete their testing in Room 21 was improper or a violation of FCAT testing protocols. In any event, there is no evidence that Ms. Sanders was aware of the move. Ms. Kennell, Mr. Bacca, and Ms. Nelson took their completed test materials, which included the tests themselves, student work papers, scripts, security logs, and other documents to Ms. Williams as required. Although the test administrators were to have turned in their seating charts to Ms. Williams, they did not. Ms. Williams did not ask the test administrators about their seating charts. Further issues regarding the seating charts that form a basis for the School Board?s Notice of Discipline, will be discussed in detail herein. After basic testing was complete, Ms. Williams left the school campus. Further issues regarding Ms. Williams? departure that form a basis for the School Board?s Notice of Discipline, will be discussed in detail herein. After Ms. Williams left campus, Ms. Miller completed the FCAT testing of her ESE students. She gave the testing materials to Ms. Turner, who placed them in Ms. Williams? locked and secured office. The Investigation After the conclusion of the FCAT test, a report was made to the school district that Mr. Bacca had received information regarding the testing prompt, and that he had shared that information with other teachers. The report resulted in the initiation of an investigation to determine the merits of the complaint. The investigation was assigned to Mr. Scott and Ms. Altman. At approximately 9:30 on the morning of March 6, 2012, Mr. Scott sent an e-mail to Ms. Williams advising her that he would be coming to the school later that morning to start an investigation of the complaint. Ms. Williams was with Ms. Kennell when the e-mail was received. Ms. Kennell told Ms. Williams that she believed the investigation was related to Mr. Bacca and the testing prompt. Mr. Scott and Ms. Atwater arrived at Windy Hill at approximately 10:30 a.m. and went to see Ms. Sanders. Mr. Scott advised Ms. Sanders of the nature of his investigation, and requested Ms. Sanders? cooperation in making teachers available for interviews. Ms. Sanders agreed to do so. Ms. Sanders expressed her support for her teachers, and advised Mr. Scott of her belief that the fourth-grade teachers at Windy Hill would not cheat on the FCAT test. During their initial discussion, Ms. Sanders advised Mr. Scott of her concerns with Ms. Williams, and described some of her recent emotional difficulties. Ms. Sanders made inquiry as to the process for changing the school?s assessment coordinator before the next round of tests. Mr. Scott provided the information to Ms. Sanders, which she subsequently implemented, assigning Ellen Rubens to be the assessment coordinator for the next round of FCAT testing. Ms. Sanders walked with Mr. Scott through the school, and showed him the testing rooms. During their tour, Ms. Sanders engaged in a very general discussion of Writer?s Camp and of the reasons that Harris Hall was selected for testing. She showed Mr. Scott the student papers that remained on the walls of Harris Hall. At the time of the tour, Ms. Sanders did not know whether the papers had been covered at time of test, and Mr. Scott asked no questions about them. Mr. Scott and Ms. Atwater interviewed a number of students, along with Ms. Williams, Mr. Bacca, Ms. Payne, Ms. Kennell, and Ms. Boney. Brief questionnaires used by Mr. Scott for his teacher interviews were preserved. During the interviews, Ms. Nelson, who was a test administrator during the FCAT test and a participant in the pre- FCAT staff meeting, stuck her head into the room and asked Mr. Scott and Ms. Altman if they needed to see her. They indicated that they did not. Ms. Nelson was never interviewed. On March 8, 2012, Mr. Scott and Ms. Altman returned to Windy Hill to continue their interviews with the five teachers previously interviewed. The thrust of the investigation remained the allegation that Mr. Bacca had learned of the prompt prior to the FCAT test. Ms. Sanders allowed Mr. Scott to use her office to continue the interviews. After Ms. Kennell appeared for her interview, Ms. Sanders received a call from counsel for the Duval Teachers Union, David Hertz, who asked her to advise the teachers and the investigators that he was in route to the school, and to ask them to postpone further discussions until his arrival. Ms. Sanders did not know who called Mr. Hertz. Ms. Sanders complied with Mr. Hertz?s request, and acted appropriately in doing so. Mr. Scott believed that Ms. Sanders? act of advising the teachers of Mr. Hertz?s request was somehow improper, commenting that “[i]t?s very unusual for a principal to tell us that the Union lawyer is on their way.” He further testified that Ms. Sanders “inhibit[ed]” his investigation and “cause[d] a delay in some of the information happening quickly.” While Ms. Scott may have preferred to conduct his investigation free from the interference of the teachers? legal counsel, there is no evidence that Ms. Sanders had any intent or reason to hinder the investigation when she forwarded Mr. Hertz?s message, or that by so doing she inhibited the investigation. Rather, her actions were reasonable, appropriate, and in keeping with the legal rights of the teachers. During one of the two days that she was on campus, Ms. Altman advised Ms. Sanders to speak with her staff, instruct them not to discuss the investigation, and advise them that progressive discipline could result if they discussed the investigation amongst themselves. Further issues regarding Ms. Sanders? delivery of Ms. Altman?s message will be discussed in detail herein. On or about March 12, 2012, Mr. Hertz provided the investigators with written statements from Ms. Kennell, Mr. Bacca, and Ms. Boney. Follow-up interviews with those three teachers were conducted on March 13, 2012. Approximately two weeks after the test, and after Mr. Scott and Ms. Altman had completed their interviews, Ms. Williams discovered the Writer?s Camp papers and decorations that remained on the walls of Harris Hall. Ms. Williams photographed the papers, and sent the photographs to Ms. Altman. No cheating regarding the testing prompt was uncovered in the investigation. The FCAT Writes test scores were validated by DOE, and the writing scores were released and counted as part of Windy Hill?s school grade announced in June or July of 2012. At some indeterminate point, the investigation turned from one regarding the testing prompt to one directed at Ms. Sanders for alleged violations of testing conditions. After the focus of the investigation turned to Ms. Sanders, neither Mr. Scott nor Ms. Altman saw fit to conduct further interviews of Ms. Sanders or any other member of the Windy Hill staff regarding specific testing improprieties, including those for which allegations of disciplinary conduct against Ms. Sanders were sustained. The bulk of the information relied upon by the investigators to sustain allegations against Ms. Sanders came from Ms. Williams. Mr. Scott had previously worked with Ms. Williams, and believed her to be “a reliable test coordinator.” Mr. Scott glossed over the possible effect that Ms. Williams? personal issues may have had on the performance of her duties as the school assessment coordinator, testifying that in her interviews “[s]he was the same Kasey I had known the year before.” When asked about his unquestioning acceptance of Ms. Williams? statements, Mr. Scott testified as follows: Q: Because [Ms. Williams] was somebody who's been in your classes, you've worked with her, you've trained her, right? And you just assumed that she was telling you the truth, didn't you? I had no other reason to believe she was not. As will be discussed herein, Ms. Williams? had a clear self-interest in covering for her inadequacies. At the very least she had her attention directed to other concerns as the FCAT test approached, failed to make any meaningful preparations for the FCAT test, neglected her duty to train the test administrators and proctors, and knowingly falsified seating charts that she submitted to the Department of Education. Mr. Scott went to considerable effort to minimize and dismiss the failings of Ms. Williams. After having admitted that Ms. Williams should have called his office with her purported concerns, as was standard procedure for all school assessment coordinators, Mr. Scott stated that “I don't think she felt comfortable that she could do that. I had to give her a comfort level to do that without retribution.” He further testified that Ms. Williams “was a person who did not feel comfortable calling my office because of retribution, as indicated by all the teachers I spoke to, other than Mr. Bacca maybe.” Finally, he testified that “I felt that one of the reasons Kasey did not report and that they didn't, they feel there's retribution. They were very, very fearful that day in that room giving me testimony. There was -- fearful of retribution, what might happen in terms of their jobs.” There is not a scintilla of competent, substantial, and credible evidence that Ms. Sanders expressed, implied, or intimated that there would be retaliation for anything associated with the FCAT test before, during, or after its administration. Furthermore, there is no evidence of retaliatory action being meted out for anything related to the FCAT test or subsequent investigation, despite the almost ten months that passed between the commencement of the investigation and the date of the disciplinary notice. The suggestion that Ms. Williams? description of events is entitled to any degree of credibility due to her professed fears of “retaliation,” is rejected. The investigators? unquestioning acceptance of Ms. Williams? account of events -- particularly in light of their failure to interview material witnesses and to review “best-evidence” materials, including the Writer?s Camp schedule and the recording of the March 7, 2012, faculty staff meeting -- causes the undersigned to seriously question the completeness and accuracy of the conclusions drawn from the investigation. In October 2012, more than seven months after the commencement of the investigation, Ms. Altman typed her first draft report. All notes of the student and teacher interviews that formed the basis of the report were then destroyed by Ms. Altman. On or about October 20, 2012, Ms. Altman sent her first draft report to the chief human resource officer for the school district, Ms. Young, for her review and comments. Ms. Young provided written comments and returned the edited draft document to Ms. Altman. The original draft report and Ms. Young?s comments were then destroyed by Ms. Altman. The only version of the investigative report entered into evidence is the version created after the School Board voted to sustain the demotion of Ms. Sanders. Copies of the investigative report created prior to the time that the School Board voted to demote Ms. Sanders were destroyed. Upon finalization of the investigative report, Ms. Young prepared and sent a memorandum to Nikolai Vitti, the Superintendant of Schools, that provided the results of the investigation, outlined the investigators? findings, and sustained the allegations against Ms. Sanders, concluding that the evidence “proves the allegation(s) to be true. The Superintendant of Schools had the disciplinary matter referred to the School Board with a recommendation for Ms. Sanders? demotion from the position of principal, and reassignment to the position of assistant principal. The Charges On January 3, 2013, Ms. Sanders was provided with notice of her recommended demotion when she was called to Ms. Young?s office and handed the Notice of Discipline. Prior to that time, Ms. Sanders assumed that the investigation into improprieties in the FCAT Writes test was closed, since the scores had been validated and released, and the school grade announced. She did not know that she was the target of an investigation, and had been provided with no opportunity to respond or to provide information regarding her role, or lack thereof, in any of the specific allegations. Ms. Sanders, through her counsel, requested an opportunity to respond to the allegations before the School Board took action at its January 7, 2013, meeting. On the day of the School Board meeting, the request was denied. Ms. Sanders was advised that she would have an opportunity to speak at the School Board meeting. During the School Board meeting, Ms. Sanders again asked for time to respond to the allegations before action was taken. Her request, along with similar requests made by between 20 and 30 attendees, was denied. The School Board approved the report, and voted to demote Ms. Sanders to the position of assistant principal. Ms. Sanders challenged the action of the School Board, and this proceeding ensued. The Notice of Discipline alleged that Ms. Sanders “directed staff to violate testing protocols, failed to report violations that were known to her at the time of the administration of the test, and made inappropriate comments to staff regarding the investigation of the reported infractions.” The specific testing protocols alleged to have been violated by Sanders, as reflected in Ms. Young?s memorandum sustaining the allegations, are identified and addressed as follows: 1008.22(4) - Writer?s Camp The Notice of Discipline alleged that Ms. Sanders violated section 1008.22(4) by “suspending a regular program of curricula for purposes of administering practice tests or engaging in other test-preparation activities for a statewide assessment.” Ms. Sanders was never interviewed about her involvement with the Writer?s Camp, how it was set up, or how many hours of the day it was held. The circumstances of the planning and conduct of the Writer?s Camp are set forth in detail above. The evidence demonstrates that the Writer?s Camp was developed and administered for the purpose of administering practice tests and engaging in test preparation activities that were determined by Windy Hill faculty and their education consultant to be appropriate to familiarize students with the organization, format, and directions for the FCAT test. The evidence demonstrates that the Windy Hill Writer?s Camp was accepted by the district office as a model for use in other schools, and was, in fact, implemented at other Duval County schools. The assumption made by Mr. Scott that Writer?s Camp was a day-long event that subsumed the regular curricula, was made without having reviewed the actual schedule and without having interviewed material witnesses, and is contrary to the greater weight of the evidence. The increased time that was devoted to allowable FCAT test preparation activities during the five-day Writer?s Camp was balanced out with greater instruction in math and other subjects over the following weeks, a practice recognized as appropriate by Mr. Scott. The School Board has failed to prove that the Writer?s Camp was contrary to the allowable scope of activities described in section 1008.22(4)(e) by a preponderance of the competent, substantial, and credible evidence in this proceeding. 1008.24(1) - Test Security The Notice of Discipline alleged that Ms. Sanders violated section 1008.24(1) by “knowingly and willfully” violating test security rules for the following specified reasons: Failure to follow security rules for distribution and return of secure test as directed, or failure to account for all secure test materials before, during and after testing. The facts underlying this count are those related to the allegation that Ms. Sanders did not allow Ms. Williams to monitor testing rooms, and that Ms. Sanders did not allow Ms. Williams to supervise make-up administrations, both of which were pled as violations of the DOE Manual. The specific findings that apply to this count are set forth in detail in the analysis of the corresponding DOE Manual violation counts, which are incorporated as to this count. In addition to the findings of fact incorporated in this analysis, the evidence demonstrates that FCAT test materials were distributed and accounted for in compliance with applicable standards before and during the FCAT test. The only potential irregularity in the return of the completed FCAT tests was that occasioned by Ms. Williams? decision to leave campus to attend to her personal affairs before ESE testing was complete. To ensure the integrity of Ms. Miller?s test materials in Ms. Williams? absence, Ms. Turner accepted those tests and locked them in Ms. Williams? office pending her return. The evidence demonstrates that Ms. Sanders did not know of Ms. Williams? departure from campus prior to the completion of testing on February 28, 2012, nor was she advised of Ms. Turner?s acceptance of Ms. Miller?s ESE class FCAT tests. In light of the findings of fact made regarding Ms. Williams? ability to monitor testing rooms and supervise make-up administrations, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow security rules for the distribution and return of the FCAT test and testing materials as directed, or that she “knowingly and willfully” failed to account for all FCAT tests and testing materials before, during, and after testing. Failure to follow test administration directions specified in the test administration manuals The Notice of Discipline alleged that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals. The DOE Manual provides that it is the responsibility of the test administrator to administer the FCAT test in accordance with the directions. The greater weight of the competent, substantial, and credible evidence demonstrates that the test administration directions, including scripts and prompts, were followed to the letter. The only potential breach was that of Ms. Kennell, who told the students that they should not forget their conclusions as the test was winding down. There is absolutely no evidence that Ms. Sanders was advised of that possible minor irregularity. There is no evidence in the record of this proceeding that Ms. Sanders failed to follow test administration directions specified in the test administration manuals. The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” failed to follow test administration directions specified in the test administration manuals. Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. By this count, the School Board has, essentially, thrown the kitchen sink at Ms. Sanders in a broad and general count with little specificity. Thus, the undersigned concludes that the only way this count can be addressed, consistent with accepted tenets of due process, is to limit the “acts prohibited in this section” to those pled and specifically identified elsewhere. In addressing this count, the undersigned incorporates the findings of fact as to each of the acts alleged in the Notice of Discipline. In light of the findings of fact made as to each of the acts alleged in the Notice of Discipline, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders “knowingly and willfully” participated in, directed, aided, counseled, assisted in, or encouraged any act alleged to have violated the provisions of section 1008.22 or section 1008.24, the DOE Manual, or the educators? Code of Ethics. Violations of the DOE Manual The Notice of Discipline alleged that Ms. Sanders failed to adhere to the following requirements of the DOE Manual: School Assessment Coordinator not able to monitor testing rooms: The Notice of Discipline alleged that Ms. Sanders caused Ms. Williams, the school assessment coordinator, to be unable to monitor the testing rooms in accordance with the DOE Manual. As set forth previously herein, Ms. Williams appeared in Harris Hall on the morning of February 28, 2012, well after 9:00 a.m. Students had already assembled, and Mr. Bacca was reading to them. Ms. Sanders had entered the room, was speaking with students, and was preparing to deliver her “pep talk.” When she entered Harris Hall, Ms. Williams was still visibly upset. She began to gather, count, and place and tape partitions onto the tables, which will be discussed in greater detail herein. The evidence supports Ms. Sanders impression that Ms. Williams “was stressed out and she was stressing teachers and students out.” In order to minimize the effect of Ms. Williams? hurried efforts, and to avoid “a big discussion about whether or not we were going to use those partitions in front of the students right before their test started,” Ms. Sanders recommended that Ms. Williams return to her office in order to start to normal testing procedures. Ms. Sanders? request that Ms. Williams return to her office was driven in part by the need to have the FCAT test started on time. During the FCAT test, all of the other children at the school are on “lockdown” to minimize movement around the school and potential distractions for the fourth- grade students being tested. Essentially, everyone stays in place until basic testing is finished. Therefore, it was important that the testing be started on time so as to be completed by lunchtime. In order to ensure that testing staff can quickly locate the assessment coordinator if needed, it has been the normal FCAT testing protocol at Windy Hill for the assessment coordinator to be located at a central location when the testing is in progress, typically in the assessment coordinator?s office. It had been determined during previous tests that the assessment coordinator should not be “roaming” about the school grounds. Thus, the instruction that Ms. Williams return to her office was consistent with the standard testing protocol at Windy Hill, and was not a new or unusual practice. Windy Hill staff members not engaged in test administration are stationed in or near the assessment coordinator?s office to act as “runners” at the direction of the assessment coordinator in the event of an emergency, which can range from a student getting sick to an unauthorized person walking into the testing area. However, there is nothing to prevent the assessment coordinator from personally handling an incident. The greater weight of the evidence demonstrates that, although Ms. Sanders advised Ms. Williams to return to her office to start the testing process, she did not direct Ms. Williams “to go to her office and stay there,” or tell Ms. Williams that she could not leave her office. To the extent Ms. Williams remained in her office during the basic testing, such was consistent with the normal testing protocol at Windy Hill. Mr. Scott?s conclusions that Ms. Williams “was constrained” from performing her duties as a school assessment coordinator, and his statement that “Ms. Sanders chose to take over that responsibility [of assessment coordinator] when she sent Ms. Williams to her office,” both of which were based predominantly on Ms. Williams? statements, are contrary to the greater weight of the evidence and are rejected. Basic testing was completed prior to 11:00 a.m. Mr. Bacca, Ms. Kennell, and Ms. Nelson returned their testing materials to Ms. Williams at that time. Ms. Miller moved her ESE students to Room 21 to complete their testing so that Harris Hall could be freed up for other uses. Therefore, Ms. Miller did not return the test materials for her students to Ms. Williams when basic testing was completed. After the return of the basic testing materials, but while Ms. Miller?s ESE student tests were still out, Ms. Williams went to the office of Jennifer Green, the school?s speech pathologist.3/ Ms. Green?s office is not in the same building as Ms. Williams? office. Ms. Williams admitted that she was emotionally upset as she sat in Ms. Green?s office, but attributed it to Ms. Turner?s interaction with her earlier that morning. She further testified that she had gone to Ms. Green?s office “to ask her to take care of some things that needed to be taken care of while I was forced off campus.” Having previously found that Ms. Williams was not forced off campus by Ms. Turner, Ms. Williams? testimony that she was emotionally upset as a result of anything to do with the FCAT test or her duties as the school assessment coordinator is not accepted. Ms. Turner received the information that Ms. Williams was in Ms. Green?s office, upset and crying, and having a conversation with Ms. Green. She reported that information to Ms. Sanders, who instructed Ms. Turner that “if she?s finished testing, that?s fine with me. Tell her she can go home and do what she needs to do.” Since it was later in the day, Ms. Sanders believed that ESE testing had been completed, and could think of no reason for Ms. Williams to be in Ms. Green's office in a different building if testing had not been completed. Ms. Sanders testified credibly that her instruction to Ms. Turner was not intended to mean that Ms. Williams was to leave before testing was finished. The intent behind Ms. Sanders? instruction to Ms. Turner was one of compassion and support for Ms. Williams, allowing her to deal with what was understood by many at Windy Hill to be a difficult and troubling personal situation. There is no credible evidence that Ms. Sanders intended to restrict Ms. Williams from performing her duties as the school assessment coordinator if she was capable of doing so, or to authorize her departure from school grounds before testing was complete. After discussing the issue with Ms. Sanders, Ms. Turner spoke with Ms. Williams and told her that “if testing is finished, . . . why don't you go home. You've got some stuff going on. You're trying to move. You need to find a home, that kind of thing. Why don't you go home.” Ms. Turner testified credibly that she did not order Ms. Williams to leave the campus before testing was completed. Ms. Williams decided to act on the offer to go home. She advised Ms. Turner that she had not yet received tests from Ms. Miller. Ms. Turner, who considered herself to be a friend of Ms. Williams, and understood that she was upset and had been so since her arrival at school that morning, allowed her to leave even though the last of the tests had not been returned. Ms. Turner walked with Ms. Williams to her car. As with Ms. Sanders, Ms. Turner?s act was driven by concern for Ms. Williams? well-being. She testified credibly that she was not “marching” Ms. Williams out of the office. Ms. Turner?s account is accepted. After Ms. Williams? departure, Ms. Turner accepted the responsibility of taking delivery of Ms. Miller?s tests and testing materials in Ms. Williams? absence and, upon receipt, locked them in Ms. Williams? office for her to handle. Given the circumstances, that was the only viable course of action. There has been no suggestion in this case that any of Ms. Miller?s materials were missing, or that security was breached so as to cause the invalidation of the test scores. There is no evidence that Ms. Sanders knew that Ms. Williams left campus before testing was complete, or that Ms. Turner had agreed to accept delivery of Ms. Miller?s tests on her behalf. Ms. Sanders was never interviewed about her alleged instruction that Ms. Turner order Ms. Williams off campus while testing was ongoing. Despite the fact that Ms. Turner?s account of the incident would appear to be critical to any reasoned investigation, neither Mr. Scott nor Ms. Altman interviewed Ms. Turner. Mr. Scott -- either in an effort to discount Ms. Turner?s subsequent testimony or to minimize the effect of the failure to interview her -- testified that he “absolutely” believed, based on his “interactions with Ms. Turner” that Ms. Turner “was influenced by Ms. Sanders.” Since Mr. Scott did not interview Ms. Turner, those “interactions” are a mystery. In any event, there is no legitimate reason for an investigator to decline an interview with a material witness because of a subjective belief that the witness may have been influenced by events. Furthermore, there is no evidence to support a finding that Ms. Turner?s testimony in this case was shaded or influenced in any way by the fact that she served as Ms. Sanders? assistant principal. Although Mr. Scott understood that Ms. Turner “escorted” Ms. Williams off campus -- an understanding that is not supported by the evidence -- he was not able to determine that Ms. Sanders directed Ms. Williams to leave. In addition, Ms. Altman testified candidly that she uncovered no evidence or information that Ms. Sanders was aware that Ms. Williams left campus prior to the conclusion of the day?s testing. Mr. Scott?s determination that Ms. Sanders had taken over the testing process or assumed the responsibilities of the school assessment coordinator when she instructed Ms. Williams to return to her office, and later allowed her to go home to attend to her pressing personal affairs, is not supported by the evidence and is rejected. The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment coordinator to monitor the testing rooms. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Student Seating Seating Arrangements The Notice of Discipline alleged that Ms. Sanders failed to ensure that students were seated at least three feet from one another, and that they were not facing one another. Testing in Harris Hall4/ was done at conference-type tables. The estimated size of the tables varied from Ms. Kennel?s estimate of 8 feet in length, to Ms. Boney?s estimate of 12 to 15 feet in length. The most persuasive evidence was that provided by Mr. Scott and Ms. Sanders who described the tables as being 10 feet in length. By applying simple mathematics, six students may be seated at a table 10 feet in length without being less than three feet apart.5/ There was no persuasive evidence as to the width of the tables. The only estimates provided were those of Ms. Williams, who described the width as “maybe” three feet plus a few inches, and Ms. Kennell, who described the tables as “maybe 3 feet wide.” The lack of competent, substantial evidence as to the width of the tables constitutes a failure of proof on the part of the School Board, the size of the tables being a material element of the allegation that students were seated too closely. Ms. Kennell testified that students were seated six to a table, with one on each end, and two on each side. Her testimony was persuasive that the students on the sides were facing the students on the other side. Even though the evidence supports a finding that students were seated facing each other -- though not that they were seated too close together -- that fact alone does not prove that such a violation was attributable to Ms. Sanders. The DOE Manual makes it clear that test administrators have the direct and primary responsibility to prepare the testing facilities, and includes the instruction that the test administrators are to: Arrange the room so the each student will have enough workspace for the test materials. There must be at least three feet between students. Make sure that students are not facing each other when seated at tables and are not in seating (stadium or staggered) that allows them to easily view other students? writing. The DOE Manual also makes it the responsibility of the school assessment coordinator to “[e]nsure that students are not facing each other when seated and are not in seating (stadium or staggered) that allows them to easily view other students? writing . . . . Make sure there is at least three feet between students to prevent cheating.” Neither the DOE Manual nor any other authority cited makes it the responsibility of a school principal to make decisions regarding student seating. Ms. Sanders testified convincingly that the decision as to how students were to be seated was best made by test administrators, stating that “I would not go into a teacher's classroom and say, you need to seat your children here, here, and here. That would be something a teacher would decide.” Her understanding is consistent with the duties and responsibilities established in the DOE Manual. Ms. Sanders? hand-drawn sketch was not a seating chart, and does not support an inference that Ms. Sanders had assumed responsibility or control from the school assessment coordinator and test administrators for seating students. If Ms. Williams had made a timely request for additional resources for the FCAT test, Ms. Sanders would have directed the school custodian to provide her with help and with what was needed before the test was to begin. There were more tables and chairs in the building and, if anyone had indicated that they were needed, there was ample time to have brought them to Harris Hall. No one suggested to Ms. Sanders that the students could not be properly seated, or that additional seating was needed. Ms. Sanders did not know how the test administrators and proctors arranged seating. She gave her motivational speech on the morning of testing, and left before students were seated. Ms. Kennell testified that the “teachers were responsible for the seating of the students. That wasn?t the principal?s duty.” Mr. Scott acknowledged that the test administrator is responsible for the administration of the FCAT test. As applied to the decision to seat students at the tables, he stated “[t]hat would have been [Mr. Bacca?s] responsibility.” Ms. Altman admitted that there was no evidence that Ms. Sanders ever directed that students sit less than three feet apart. The School Board has alleged that Ms. Sanders violated the DOE Manual regarding the seating of students for testing. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Partitions Although not pled with specificity, the School Board argued that problems with seating -- if they had been proven -- could have been resolved if partitions had been used to separate students seated at the tables. Ms. Williams stated that “[w]e?ve been given permission from the District coordinator to use partitions in cases where we can?t sit them 3 feet apart.” Mr. Scott admitted that there was nothing in the DOE Manual that allows the use of dividers or partitions. Having reviewed the DOE Manual, the undersigned agrees that it does not address the issue. During the Writer?s Camp, partitions were not used to separate or divide students seated at a table. Ms. Hurst testified that it would not be appropriate to practice without dividers or partitions at tables, and then administer an exam with partitions and dividers in place. To do so would subject the students to different conditions, which would likely reflect on their performance. Ms. Williams first discussed the issue of partitions with Mr. Bacca on Friday, February 24, 2012. While Writer?s Camp was ongoing, Ms. Williams entered Harris Hall, apparently for the first time after she became aware of the FCAT test. She expressed her concern with student seating. Her concern was directed to the effect that improper seating arrangements might have on her certificate. Ms. Williams made her statements in the presence of the students who were participating in Writer?s Camp. Ms. Kennell testified that Ms. Williams “[w]asn?t any louder than she normally is.” Ms. Kennell thought that she may have been loud enough for students to hear, though she could not be certain if they did. In the investigative report, Mr. Bacca was reported to have stated that Ms. Williams expressed her concern that the decision to not use partitions would cause someone to lose their job in the presence of students, and that her statement had impacted the students in a negative way. Mr. Bacca?s statement as set forth in the investigative report is corroborated by Ms. Kennell?s testimony, both of which are accepted. By the time Mr. Bacca brought the issue of partitions to Ms. Sanders? attention, the practice testing was complete. Mr. Bacca and Ms. Sanders discussed the fact that the students had not practiced with partitions, which was a concern. Ms. Sanders recognized that dividers are not mentioned in the DOE Manual or DOE directions. She noted the size of the room, and thought that as long as the students were spaced out, they could be accommodated without dividers. There is no evidence that Mr. Bacca suggested that students could not be appropriately seated. For those reasons, it was decided that partitions would not be needed. Ms. Sanders understood that Mr. Bacca related their discussion to Ms. Williams. Ms. Williams did not thereafter seek to express her disagreement to Ms. Sanders, or to otherwise ask Ms. Sanders to explain the decision to her. Since the issue of student seating had been discussed as early as the pre-FCAT staff meeting, and since no one suggested to Ms. Sanders that students could not be seated with plenty of space, Ms. Sanders reasonably understood that the issue was being managed by the test administrators. Ms. Williams testified that she approached Ms. Sanders at a party being held at the home of “Pastor G” on Sunday, February 26, 2012, to inquire about where she could obtain some partitions. The alleged discussion was not corroborated by Ms. Sanders, who had no recollection of having had a discussion with Ms. Williams regarding partitions until the morning of the test. Given the totality of the evidence in this proceeding, the undersigned credits the testimony of Ms. Sanders. The investigative report indicates that Ms. Williams sent an e-mail to four teachers late in the evening of Sunday, February 26, 2012, indicating that she was in search of partitions to use on the following Tuesday morning. At some point prior to the FCAT test, Ms. Williams asked Ms. Turner if she knew where she could get some partitions. The most reasonable inference that can be drawn from the evidence is that the inquiry was made on Monday, February 27, 2012. Ms. Turner directed Ms. Williams to a third- grade teacher that she believed may have had some -- either Ms. Marcham or Ms. Boney. The discussion was limited to who might have had partitions, not whether or not they should be used. There is no evidence that Ms. Turner advised Ms. Sanders of the discussion. On Monday afternoon, Ms. Williams and Ms. Boney had a discussion regarding partitions. Ms. Boney had some partitions, but they were too flimsy. They discussed trying to get better ones and taping them down to the tables. In Ms. Boney?s opinion, the effort to get partitions was not planned out. By the morning of February 28, 2012, Ms. Kennell had located some pre-made partitions, and had some that had been made the day before by substitute teachers. She brought them to Harris Hall. She believed that she had plenty of time to go around and ask for more partitions. Her attempt would have been rushed, but she felt that she could have done it. Minutes before the test was to start, when Ms. Sanders had already begun speaking with students, Ms. Boney appeared in Harris Hall with some free-standing three-fold partitions. Others available on the morning of the test would have to have been taped down. Ms. Williams appeared at Harris Hall well after 9:00 a.m. on the morning of testing with the intent to set up partitions. As to the reason for her hurried and last minute efforts, Ms. Williams testified that “[w]e couldn?t set them up prior to [Tuesday morning] because we have car riders coming in and out of [Harris Hall] every day.” That purported reason is not consistent with the evidence as to the availability of partitions prior to the morning of the FCAT test. Ms. Williams did not know whether the number of partitions gathered up by Ms. Kennell and Ms. Boney was sufficient. Even as she was directed to return to her office, Ms. Williams stated to Ms. Sanders that “I don't know if there are enough partitions.” There is no competent, substantial evidence that, even if partitions were necessary, Ms. Williams had arranged for a sufficient number to be available before testing was to begin. Ms. Williams expressed her belief that in the few minutes remaining before testing was to begin, she could have counted out the partitions, gotten more if necessary, and placed the partitions and taped them to the tables without distracting students or disrupting test procedures. Ms. Williams? belief is far-fetched. After her arrival in Harris Hall, Ms. Williams commenced gathering up and placing partitions, not knowing whether there were enough to go around, in a hurried and agitated manner. Ms. Sanders justifiably felt that Ms. Williams? actions were detrimental to the students, and she did not want them to be upset before the testing began. Ms. Sanders instruction to Ms. Williams to return to her office so that testing could commence was an appropriate way of dealing with the issue given Ms. Williams rushed and disruptive efforts. It was not done with intent or effect of taking over the duties of the school assessment coordinator, or of assuming the responsibility of seating students. There is no evidence that Ms. Sanders? decision to forego the use of partitions was made with any understanding that students could not be appropriately seated at the tables and chairs available. She did not believe that partitions were allowed by the DOE Manual -- which they do not appear to be -- and was not aware of Mr. Scott?s ad hoc determination that they were allowable. There is no evidence that Ms. Sanders acted in any way except that calculated to be in the best interests of the students. Her actions were not designed or intended to encourage cheating amongst the students, to influence the test results, or for any improper purpose. The School Board did not allege the issue of partitions as a separate basis for its disciplinary decision apart from that of student seating. To the extent the issue is determined to be included as a basis for discipline, the School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that the decision to forego the use of partitions was unreasonable or improper under the circumstances, or that the decision violated any provision of the DOE Manual. Visual aids not removed or covered in testing room The Notice of Discipline alleged that Ms. Sanders failed to ensure that visual aids in Harris Hall were removed or covered prior to the administration of the test. During Writer?s Camp, students practiced writing and did sample tests. As the camp progressed, certain pieces that were done by students were taped to the wall of Harris Hall, along with maps and materials related to local colleges and universities, and a large sign that said “Mapping Our Way to a “6”!” The papers and decorations from Writer?s Camp remained on the wall on the day of testing and after. As indicated previously, it is regarded as a sound practice for a school assessment coordinator to inspect the testing venue a day or two before the test, a practice acknowledged as appropriate by Mr. Scott. In that regard, the DOE Manual directs the school assessment coordinator as follows: “In your walk-through of the school prior to testing, check for and remove all unauthorized visual aids posted in classrooms or affixed to student desks.” Ms. Altman confirmed that it is the school assessment coordinator's responsibility to remove any unpermitted visual aid from the walls of the testing venue. As the trained school assessment coordinator, Ms. Williams was in the best position to recognize whether the papers and decorations were a problem, particularly since she had failed to conduct training for the test administrators and proctors that may have refreshed their knowledge of the issue. Ms. Williams testified that she could not inspect Harris Hall on the Monday prior to the test because students were, according to the schedule, having Writer?s Camp until 11:00 a.m. She testified that she could not perform her duty of walking through Harris Hall after Writer?s Camp was done for the day because “I believe I had a meeting off campus, so I was going to do things Tuesday morning.” That explanation is not credible. Ms. Williams met with Ms. Boney to discuss partitions, and distributed the DOE Manuals to test administrators on the Monday afternoon prior to the FCAT test. There was no suggestion that a purported “meeting off campus” interfered with those on-campus activities. The evidence demonstrates that Ms. Williams had time to inspect Harris Hall if she had been interested enough to do so. Instead, she neglected her duty to inspect Harris Hall in any meaningful or timely manner prior to testing. Ms. Williams stated that she had no time to notice the items on the wall upon her appearance in Harris Hall on February 28, 2012, because she was told by Ms. Sanders to leave. Ms. Williams? suggestion that in the few minutes before testing was to commence she could have performed all of her duties regarding the testing venue that she should have done days in advance is unrealistic and rejected. Furthermore, there was no testimony as to how the assembled students may have reacted to a rushed and hurried act of tearing down their work, but common sense suggests that it would have been distracting at best, and likely upsetting to some. The DOE Manual provides that it is the responsibility of the test administrator to: Remove or cover all visual aids on student desks or displayed in the room, including word lists, spelling lists, word definitions, punctuation charts, transitional devices, organizational patterns, etc. Students may not have access to any unauthorized aids. Discuss any concerns with your school assessment coordinator. Ms. Kennell stated that the materials were not something that would be used by a teacher for instructing children. She understood that there were to be no instructional materials on the walls, but saw no need to take down the papers and decorations. Ms. Nelson was in Harris Hall a few days before the administration of the FCAT test to make sure the room was ready for testing. Ms. Nelson could not recall what was on the walls, but had she seen anything inappropriate, she would have taken it down or covered it up. Ms. Boney testified that she thought the materials were testing violations, but did not see fit to remove them because “[i]t wasn't my duty to take them off.” Not only did Ms. Boney take no steps to act on her purported concern, she did not tell anyone of her belief that the papers and decorations might be a violation. When Ms. Sanders entered Harris Hall on the morning of the test, her purpose was to deliver her “pep talk” to the children and leave. She did not inspect the room, and did not notice what was on the walls. No one, including Ms. Boney, suggested to Ms. Sanders that there was anything posted that would have been a concern. Having had an opportunity to review the photographs of the papers and decorations, Ms. Sanders did not believe that they were instructional materials. Since the materials contained no information regarding the prompt that was to be the subject of the February 28, 2012, test, she saw no reason to believe that the papers would help the students to do well on the test. The papers and decorations from Writer?s Camp do not correspond to the examples of prohibited visual aids provided by the DOE, i.e., they were not word lists, spelling lists, word definitions, punctuation charts, transitional devices, or organizational patterns. The greater weight of the evidence demonstrates that the papers and decorations were not unauthorized visual aids. The School Board has failed to prove, by a preponderance of the evidence, that the materials on the walls were unauthorized visual aids, that Ms. Sanders ever saw the papers and decorations, or that Ms. Sanders, rather than the assessment coordinator or test administrators, was responsible for removing any such materials. Seating charts not properly maintained The Notice of Discipline alleged that Ms. Sanders failed to ensure that seating charts were properly maintained. The February 28, 2012 FCAT test was the first FCAT test for which student seating charts were required. During the pre-FCAT planning meeting that Ms. Williams chose to skip, the requirement that student seating charts were to be made by the test administrators was briefly discussed. Ms. Kennell testified that, despite her attendance at the pre-FCAT planning meeting, she was unaware that she had to do a seating chart because she had not received the required training from Ms. Williams. Mr. Scott testified convincingly that it is the responsibility of the school assessment coordinator to train the test administrators to make seating charts and turn them in with the completed tests, and that it is the responsibility of the school assessment coordinator to collect the seating charts at the end of testing. Ms. Williams admitted that it was purely her duty to communicate the need for seating charts to the teachers, and that she knew of nothing in the DOE Manual that created a duty on the part of a school principal to do anything with regard to seating charts. Ms. Williams did not train the test administrators to make seating charts, or to turn them in with the completed tests, nor did she collect the seating charts at the end of testing. Ms. Williams testified that she instructed the teachers “at least six times” to make sure that they prepared seating charts. Her testimony was not substantiated by any other witness, and the suggestion that she provided multiple instructions to the test administrators is not credible. The greater weight of the evidence demonstrates that Ms. Williams gave no instruction to the test administrators regarding seating charts. Ms. Nelson and Ms. Miller were able to glean sufficient information from the DOE Manual or otherwise to know that they were to prepare seating charts, and they did so. They did not, however, know enough to turn them in at the conclusion of testing with their testing materials. Mr. Bacca and Ms. Kennell did not maintain seating charts. On Friday, March 2, 2012, Ms. Williams administered the last of the make-up tests. As she prepared the tests and materials for submission to the DOE, she discovered that she did not have seating charts from any of the test administrators. She went to each of the four test administrators to ask for seating charts. Ms. Nelson and Ms. Miller gave her their charts. Mr. Bacca and Ms. Kennell did not have seating charts for the children in their classes. After make-up testing was complete, Ms. Turner was going to use the restroom located across the hall from Ms. Williams? office. Ms. Williams was having a discussion with one of the fourth-grade teachers about missing seating charts, and they made mention of the situation to Ms. Turner. Having never done a seating chart, and having not known of the requirement for seating charts until that moment, Ms. Turner advised Ms. Williams to figure out what she was supposed to do. Since she was not the school assessment coordinator or a test administrator, it was Ms. Turner?s expressed intent that the testing coordinator and the teachers having that knowledge figure out who was sitting where. Ms. Turner testified credibly that she did not suggest that Ms. Williams falsify the seating charts. Rather, she wanted it done accurately. In order to meet the requirement that she submit seating charts with the other test materials, Ms. Williams decided to make up seating charts “out of the clear blue sky.” As explanation for her falsification of the seating charts, Ms. Williams asserted that she was instructed to do so by Ms. Turner. The greater weight of the evidence demonstrates that Ms. Turner did not instruct Ms. Williams to fabricate seating charts, or to otherwise act improperly in their preparation. Ms. Turner never discussed the issue of the seating charts with Ms. Sanders. Ms. Altman testified candidly that she uncovered no evidence or suggestion that Ms. Sanders was aware of any inaccuracy or problem in the seating charts, or that Ms. Sanders was otherwise involved with them. Despite the complete lack of evidence against Ms. Sanders with regard to the seating charts, Mr. Scott testified, based solely on Ms. Williams? self-serving statements, that Ms. Williams fabricated seating charts “at the request of Administration, from my understanding.” Mr. Scott never interviewed Ms. Turner or anyone else from “Administration” who may have had information regarding such a serious allegation. The undersigned would have not the least bit of hesitation in recommending the most severe sanctions available if the evidence suggested that Ms. Sanders, or any other person in authority, instructed Ms. Williams -- either directly or by any reasonable implication -- to falsify records. However, the preponderance of competent, substantial, and credible evidence in this case demonstrates that such an instruction was never given. Rather, when asked to perform her duty as the school assessment coordinator to see to it that seating charts were provided, Ms. Williams accomplished that task by simply making them up. The School Board has alleged that Ms. Sanders failed to properly maintain seating charts for the FCAT test. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. School assessment coordinator not able to supervise make-up administrations The Notice of Discipline alleged that Ms. Sanders prevented Ms. Williams from being able to supervise make-up FCAT test administrations. After having departed for the day on February 28, 2012, Ms. Williams e-mailed Ms. Sanders to ask if she could come back, finish the make-ups, and pack up tests. Ms. Sanders responded in the affirmative. In general, it was Ms. Sanders? expectation that Ms. Williams would make sure everything for the FCAT test was properly done and turned in. Ms. Nelson administered a make-up test on the morning of February 29, 2012. Ms. Williams should have, and could have, been on campus for that test but elected not to return since all of the make-up tests had not been completed. Ms. Williams? decision was hers, not Ms. Sanders?. Ms. Williams attended a training off-campus on March 1, 2012. She returned to campus and administered a make- up test on the morning of March 2, 2012. She thereupon packed up and delivered the testing materials to the district office. The evidence does not support a finding that Ms. Sanders either prevented or discouraged Ms. Williams from supervising make-up FCAT test administrations on February 29, 2012, or otherwise. The School Board has alleged that the actions of Ms. Sanders resulted in the inability of the school assessment coordinator to supervise make-up test administrations. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. No training for test administrators or proctors The Notice of Discipline alleged that Ms. Sanders failed to ensure that test administrators and proctors received training. The DOE Manual provides that it is the responsibility of the district assessment coordinator to “ensure that all school administrators, school assessment coordinators, test administrators and proctors receive adequate training prior to test administration.” The district assessment coordinator failed to ensure that such training occurred. The DOE Manual further provides that the school assessment coordinator is responsible for training all test administrators and proctors. The evidence demonstrates that Ms. Williams did not offer or perform training for test administrators and proctors. Neither the DOE Manual nor any other cited authority makes it the duty or responsibility of a school principal to conduct or ensure that test administrators and proctors have received training. Training of school assessment coordinators was held in mid-January, 2013 for the test to be administered in late February. The idea behind offering training well in advance is to provide plenty of time to prepare for the FCAT test and conduct the test properly. Ms. Kennell and Ms. Boney testified that training of test administrators and proctors is usually done weeks before the test. In her February 22, 2012, e-mail, Ms. Williams asked Ms. Sanders to help her to make arrangements for training. Ms. Sanders offered the modest assistance of Ms. Nelson and Ms. Turner. There is no evidence that such assistance was not provided. Under no reasonable assessment of the facts can Ms. Sanders? response to Ms. Williams be construed as an assumption of the duties of the school assessment coordinator to train test administrators and proctors. In lieu of training, Ms. Williams intended to provide copies of the DOE Manual to the fourth-grade teachers on the Friday before testing so they could read them over the weekend. She did not do so, blaming her neglect on Ms. Turner?s alleged -- but unsubstantiated -- failure to advise teachers and proctors to pick up manuals from Ms. Williams on that Friday. No test administrator or proctor received training from Ms. Williams. All Ms. Williams did to fulfill her duty was to give the test administrators copies of the DOE Manual on the afternoon before the FCAT test. The test administrators were thereafter left to their own devices. Ms. Kennell, who left campus on Monday afternoon before school let out, did not receive the DOE Manual until the morning of the FCAT test, and did not have an opportunity to read it. In her view, things were rushed and last minute. The evidence suggests that Ms. Williams did not give the test proctors, who were also entitled to training, a copy of the DOE Manual. Despite meeting with Ms. Williams on the afternoon of February 27, 2012 regarding partitions, Ms. Boney did not receive a DOE Manual or even minimal training. All Ms. Boney received was the “booklet” that she was to pass along to Ms. Kennell. Ms. Williams testified that she typed up “brief training notes,” and gave them to the test administrators along with the DOE Manuals. No other witness mentioned having received training notes. No training notes were introduced as evidence. The contents of the training notes were not described. The greater weight of the evidence indicates that training notes were not provided to test administrators. What is clear is that Ms. Williams failed to take any initiative to perform even the most rudimentary “training,” and made no meaningful effort to timely provide DOE Manuals to the test administrators and proctors, as was her job. Her failure in that regard was in spite of, and not because of, Ms. Sanders? offer of assistance. The evidence is overwhelming that Ms. Williams, due to her own neglect, failed to provide the training that was her responsibility under the DOE Manual. No one advised Ms. Sanders that Ms. Williams had not provided training. Ms. Altman, relying exclusively on Ms. Williams? account, concluded that Ms. Sanders and Ms. Nelson had prevented Ms. Williams from conducting the training. That conclusion was drawn without having interviewed Ms. Sanders or Ms. Nelson regarding FCAT training. The investigatory conclusion that Ms. Sanders prevented, prohibited, or blocked Ms. Williams from conducting FCAT training is not supported by a shred of competent, substantial, and credible evidence. Furthermore, the suggestion that Ms. Sanders either knew of or was responsible for Ms. Williams? misfeasance is without evidentiary support. The School Board has alleged that Ms. Sanders failed to properly adhere to the requirement in the DOE Manual regarding training for test administrators and proctors. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Allegation of Failing to Report Violations that were Known to Respondent at the Time of the Administration of the Test The Notice of Discipline alleged that Ms. Sanders “failed to report violations that were known to [Ms. Sanders] at the time of the administration of the test.” The evidence in this case, as recited herein, does not support a finding that Ms. Sanders failed to report violations of FCAT testing standards that were known to her at the time of the administration of the test. Ms. Sanders appointed a school assessment coordinator who, based on past performance, she trusted to competently perform her duties. Except with regard to the disputed issue of the need for partitions -- an issue that was not proven to be a violation -- no issue regarding Ms. Williams? concerns with testing conditions, or of her neglect and malfeasance regarding the FCAT test, were brought to the attention of Ms. Sanders by the faculty or staff of Windy Hill. Ms. Sanders? understanding of testing violations, until her receipt of the Notice of Discipline, was limited to the allegation that Mr. Bacca had learned of and divulged the testing prompt, an allegation that was brought to her attention after-the-fact by Mr. Scott and Ms. Altman. Ms. Sanders knew of no irregularities in the administration of the February 28, 2012, FCAT test at the time of the administration of the test. The suggestion that Ms. Sanders had taken over the duties of the school assessment coordinator, and that knowledge of alleged testing violations should be therefore imputed to her, is not supported by any competent, substantial, and credible evidence. The School Board has failed to prove by a preponderance of the competent, substantial, and credible evidence that Ms. Sanders failed to report violations that were known to her at the time of the administration of the test. Allegation that Respondent Made Inappropriate Comments to Staff Regarding the Investigation of the Reported Violations The Notice of Discipline alleged that Ms. Sanders “made inappropriate comments to staff regarding the investigation of the reported violations.” On or about March 6, 2012, Ms. Altman advised Ms. Sanders of the investigation. She did not reveal the precise nature or target(s) of the investigation, only that it involved teacher improprieties related to the administration of the FCAT test. March 7, 2012, was an early release day. After students were released for the day, Ms. Sanders attended a regularly scheduled early-release staff meeting. All teachers were required to attend. The allegation that Respondent made inappropriate statements to staff came as the result of her statements at the faculty staff meeting. Since the School Board did not specify what comments were “inappropriate,” or what might make a comment “inappropriate,” the allegation is so vague and non-specific as to raise issues of a lack of meaningful notice and due process. However, having heard the recording of the meeting, reviewed the transcript, and taken testimony from attendees, the undersigned is prepared to make findings as to whether any comment might reasonably be construed as “inappropriate,” given the facts of this case. Ms. Sanders was never interviewed about her allegedly threatening and inappropriate comments. The staff meeting was taped by one of the attendees. Thus, a record of exactly what was said and not said was available. Ms. Altman testified that she learned of the recording during the investigatory interviews, and spoke to the person who had the recording. However, in one of the more baffling elements of the investigation, neither Mr. Scott nor Ms. Altman obtained a copy of the recording, and never listened to it before making their conclusions as to what was said by Ms. Sanders. Thus, Mr. Scott and Ms. Altman proceeded to form conclusions regarding statements made at the meeting without any reference to the available best evidence of that meeting. Comments Regarding Discussions of the Investigation, and Progressive Discipline for a Violation While she was on the Windy Hill campus conducting interviews, Ms. Altman advised Ms. Sanders that she should instruct her staff that they were not to discuss the investigation, and that progressive discipline could result if they discussed the investigation. Ms. Altman testified that she intended Ms. Sanders to advise only the handful of teachers that had been interviewed that they were not to discuss the investigation. Ms. Sanders testified that she understood Ms. Altman?s advice to be that she was “to pull my staff together and have a conversation with them about an open investigation and that -- how serious that was and that they were not to talk about [the] open investigation.” Ms. Sanders? interpretation was reasonable. She thereafter complied with Ms. Altman?s advice. When Ms. Sanders appeared at the staff meeting, she was very emotional as a result of the allegations directed towards the fourth-grade teachers. She expressed her trust that the fourth-grade teachers had done nothing improper, and asked the faculty to rally their support. Ms. Sanders dutifully related Ms. Altman?s instruction that faculty members were not to discuss the investigation. Ms. Sanders included co-workers, friends, and family in her admonition. The instruction that faculty could not discuss the matter with family members may have been overly restrictive, but it was not improper or inappropriate. Ms. Sanders believed it to be warranted, given the seriousness of the allegations, and it was a restriction that she complied with herself. Ms. Sanders also related Ms. Altman?s instruction that discussing the investigation could result in progressive discipline. Progressive discipline is a means of administering discipline in steps, starting with a verbal warning, then a written reprimand, proceeding to suspension, and eventually termination. Based on her knowledge of other investigations, Ms. Sanders viewed the instruction provided to the faculty as a first-step verbal warning of the prohibited conduct. She understood that a breach of the prohibition would thus be subject to discipline at the next step. Ms. Sanders? expression of her understanding, which was given in an effort to keep her teachers from getting into trouble, was not inappropriate. Due to the vagueness of the School Board allegation, certain of the conclusions and statements referenced in the investigative report and witness testimony must be addressed. Ms. Boney testified that Ms. Sanders privately asked her to pray before the staff meeting, and publically asked her to pray at the end of the meeting. Ms. Sanders did not corroborate Ms. Boney?s testimony regarding a pre-meeting prayer, and such a private request -- if made -- was not during the faculty meeting and would not support the allegation as pled. The recording of the faculty meeting, which is the best evidence of the meeting, provides no evidence of a request having been made during the meeting. Thus, the allegation that Ms. Sanders asked Ms. Boney to pray, such as it is, is not supported by a preponderance of the evidence. Ms. Williams testified that Ms. Sanders stated that “nothing was anonymous and she would find out who made the phone call.” A simple review of the recording would have revealed her statement to be false. Ms. Sanders commented on the fact that the complaint was made anonymously, and stated her understanding that calls made to the district office were not anonymous to the district because the district used caller ID. Contrary to Ms. Williams? account, Ms. Sanders plainly stated during the meeting that “I don?t know who the individual is, and, frankly, I don?t want to know . . . . And they?re not going to tell me who it is. . .” Furthermore, the meeting concluded with her stating that “[t]his is not going to become a witch hunt. This is no longer about the person who called in the report. We?re going to walk out this door and get back up because what?s done is done.” Thus, any suggestion that Ms. Sanders intended to ferret out the source of the phone call as stated by Ms. Williams is completely unfounded. Ms. Kennell testified that Ms. Sanders said that if any “snoops” came on campus, the teachers should not talk to them but should ask for a lawyer, a statement that was memorialized in the investigative report. The statement has no basis in fact. The instruction given by Ms. Sanders was clearly that staff was not to discuss the investigation with “family, your friends, your neighbors,” or with other staff members. There was no reference to lawyers at all. Having listened to the recording and read the transcript, and having heard testimony from attendees, the undersigned finds nothing to support that Ms. Sanders suggested in any way that staff was not to cooperate with the investigation. Ms. Young testified that “some of the comments were inappropriate . . . the tone of the conversation and certainly that the way the message was received by those who have shared this information was very threatening.” Although she read the transcript,6/ Ms. Young admitted that she had not listened to the recording of the meeting. She was therefore in no position to gain a sense of the tone of the conversation. Had she listened to the recording, she would have heard expressions of support and determination, laughter, and positive comments from a faculty faced with difficult circumstances. While Ms. Sanders was emotional and upset, and tended to repeatedly drive home Ms. Altman?s instructions, her comments, taken in their entirety and in context were not inappropriate or threatening. If some perceived Ms. Sanders? comments as threatening, it was not due to the substance or delivery of the comments themselves. Ms. Young also testified that Ms. Sanders? statements caused “great concern by the teachers that there would be some type of retribution.” There is no evidence whatsoever in the record of this proceeding that would support an attribution of retaliatory intent or conduct on the part of Ms. Sanders, and the suggestion that faculty members had legitimate and well- founded fears of retaliation is rejected. The allegation regarding Ms. Sanders? statements at the March 7, 2012, faculty meeting appears to be directed to the supposition that she made her statements with the intent to intimidate staff or to discourage others from reporting illegal conduct regarding the FCAT. That conclusion cannot be reasonably drawn from the record. Having heard the recording of the meeting, and the testimony of the participants, it is clear that Ms. Sanders delivered an accurate accounting of what she had been told to do by Ms. Altman. There is no competent, substantial, and credible evidence in the record of this proceeding that Ms. Sanders would not cooperate, or would encourage others to not cooperate with the investigation. Furthermore, if staff was “intimidated,” their intimidation was due to their own subjective but incorrect impressions of Ms. Sanders? comments. The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding a prohibition against discussing the investigation, and the discipline for a breach of the prohibition. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Comments Regarding Ms. Sanders? Faith, including Biblical References The School Board also appears to contend that Ms. Sanders? references to her faith, including recitation of verses from the Bible, constituted a violation of standards applicable to school administrators. How such comments might be construed as being ones “regarding the investigation of the reported violations” is unclear. In any event, both Mr. Scott and Ms. Young testified that references to religion and scripture at a faculty staff meeting were “inappropriate.” The only standard referenced in the Notice of Discipline to which a reference to one?s faith and to scripture might reasonably apply is rule 6B-1.001(3), which has since been transferred to rule 6A-10.080(3), and which provides that: Aware of the importance of maintaining the respect and confidence of one?s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Thus, the School Board?s allegation suggests that Ms. Sanders? references to her faith and scripture was conduct that was, to a degree, unethical. The March 7, 2012, faculty staff meeting, coming close on the heels of her being notified of the allegation that a member or members of her staff had been alleged to have cheated in the administration of the FCAT, was a troubling matter for Ms. Sanders. Ms. Sanders acknowledged that she was very emotional by what she perceived as an unwarranted complaint against a group that she regarded as her “family.” She expressed concern not only for the fourth-grade teachers involved, but for the effect that allegations of cheating would have on the students at Windy Hill. In dealing with the issue, Ms. Sanders presented a description of her beliefs. She made it clear that she was not trying to tell anyone what to believe, but was offering it “because this is the only way I know that I can do this job everyday.” The context and words of her comments made it clear that she was not proselytizing. Rather, as stated by Ms. Sanders, “it was not to persuade them. It was to let them know this is bad, I'm upset, you're upset . . . . But this is who I am. If you don't believe what I believe, that's okay.” The undersigned recognizes the historical precedent and importance of the doctrine generally known as the separation of church and state, which derives from the establishment clause of the United States Constitution7/ and the Florida Constitution.8/ The question in this case, however, is not whether Ms. Sanders? comments may have violated the establishment clause -- a question best suited for resolution by the judicial branch -- but whether a non-proselytizing reference to one?s faith and to scripture, delivered in a meeting of adult faculty and in the context of a trying and emotional occurrence, results in a conclusion that an educator has failed to strive to “achieve and sustain the highest degree of ethical conduct” so as to warrant the imposition of disciplinary sanctions. Ms. Sanders stated that, she had done the best of her ability to handle a very difficult situation. It is clear that her quoting of scripture was not intended to bring anyone to her point of view. Though her emotion and concerns could have, and perhaps should have, been channeled differently, neither the substance nor the delivery of her comments at the March 7, 2012, faculty meeting was “inappropriate” under the circumstances, nor were they less than “ethical conduct.” The School Board has alleged that Ms. Sanders made inappropriate comments to staff regarding the investigation of the reported violations as a result of her references to her faith and to scripture so as to violate applicable provisions of the Code of Ethics. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Violations of the Code of Ethics Rule 6B-1.001(2) The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(2), which has been transferred and now exists as rule 6A-10.080(2). That rule provides that: The educator?s primary professional concern will always be for the student and for the development of the student?s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that Ms. Sanders? actions were motivated by her professional and personal concern for the students at Windy Hill, particularly those involved in the FCAT test. The greater weight of the evidence also demonstrates that Ms. Sanders? actions with regard to the February 28, 2012, FCAT test and the subsequent investigation of alleged testing irregularities constituted a reasonable and appropriate exercise of her best professional judgment and integrity. There is no competent, substantial and credible evidence to the contrary. The School Board has alleged that Ms. Sanders failed to direct her primary professional concern to the students at Windy Hill and for the development of the students? potential, and that she failed to exercise her best professional judgment and integrity. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Rule 6B-1.001(3) The Notice of Discipline alleged that Ms. Sanders violated rule 6B-1.001(3), which has been transferred and now exists as rule 6A-10.080(3). That rule provides that: Aware of the importance of maintaining the respect and confidence of one?s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Given the complete record of this proceeding, including the findings of fact herein, the greater weight of the evidence demonstrates that, with regard to the February 28, 2012, FCAT test and the subsequent investigation of alleged testing irregularities, Ms. Sanders acted in a manner that was designed to, and did, achieve and sustain the highest degree of ethical conduct. There is no competent, substantial and credible evidence to the contrary. Given the facts of this case, there is no reason why Ms. Sanders should not have the respect and confidence of her colleagues, of students, of parents, and of other members of the community. The School Board has alleged that Ms. Sanders failed to achieve and sustain the highest degree of ethical conduct, and that her actions resulted in a loss of the respect and confidence of her colleagues, of students, of parents, and of other members of the community. The School Board has failed to prove the allegation by a preponderance of the competent, substantial, and credible evidence. Conclusion The School Board failed to prove the allegations in the Notice of Discipline by a preponderance of competent, substantial evidence. Ms. Sanders did everything expected or required of a principal in administering the FCAT test and in responding to allegations of irregularities. She was, however, faced with a school assessment coordinator who thoroughly neglected her duties, and who was all too willing to deflect personal responsibility for her failings onto others. Far from trying to find a scapegoat, Ms. Sanders? defense of the allegations in this case was warranted and effective. Thus, the Notice of Discipline and other charges that form the basis of this proceeding should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order dismissing the Notice of Discipline in its entirety. DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of August, 2013.
The Issue Whether Respondent, Department of Education, should have invalidated Petitioner's, Lori Monroe, Florida Teacher Certification Examination, for her alleged violation of a test- taking protocol.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is seeking to be certified as a teacher. She submitted appropriate application and sat for the March 4, 2006, Florida Teacher Certification Examination. Respondent is the state agency responsible for certifying teachers in the State of Florida and conducts the Florida Teacher Certification Examinations. The Florida Teacher Certification Examinations are given four times per year in various locations around the state. Because of the frequency and volume of Florida Teacher Certification Examinations, the application process and information regarding testing procedures are refined. The preliminary information provided examinees includes a statement of understanding, written in the first person, which makes specific reference to the fact that the examinee "must follow the instructions of the test administration personnel," and, "If I do anything prohibited by this paragraph, my examination results will be voided." In addition, examinees are provided an information sheet identifying "cheating behaviors." Included in the list of "cheating behaviors" is the following: "During the examination administration, continuing to work on the examination after the testing time had elapsed, and the directive to stop working has been given by a room proctor or supervisor." Included in the referenced refinements in testing procedures are instructions contained in a Test Administration Manual provided to test room supervisors and proctors that ensure the appropriate administration of the tests. The Test Administration Manual specifically delineates the procedure to be followed upon observation by a room supervisor or proctor when "an examinee continues to work on the test when time is called." In the instant case, the room supervisor and proctor, both of whom were experienced test administrators, followed the appropriate procedures. Both the room supervisor and proctor were within several feet of Petitioner who was sitting in the front-row seat of the classroom. Not only was Petitioner within easy view, but, certainly close enough to clearly hear the general instructions to stop. They observed Petitioner continue to enter answers on her answer sheet after examinees had been told to stop two times. It is unfortunate that the particular conduct of the Petitioner is characterized as "cheating," as the evidence, including the observations of the room supervisor and proctor, portrays Petitioner as being so focused on the examination that she did not hear the instruction to stop and, unfortunately, continued to answer questions after the test had concluded. Respondent advised Petitioner by letter dated March 20, 2006, that she had been assigned a score of "invalid" and that she had not fulfilled the requirement for a passing score on the Elementary Education K-6 examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order concluding that an irregularity had occurred and that "invalid" was the appropriate test score for the subject test. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2006. COPIES FURNISHED: Matthew J. Carson, Esquire Department of Education Division of Vocational Rehabilitation 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0440 Charlie S. Martin, Esquire McLeod, McLeod & McLeod, P.A. 48 East Main Street Post Office Drawer 950 Apopka, Florida 32704-0950 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent, Tunisia Hairston, violated the provisions of section 1012.795(1)(d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent, Tunisia Hairston, holds Florida Educator’s Certificate 886347, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2017. At all times relevant to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a fifth-grade teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her mother, Annette Jones Walker, taught fifth grade in the classroom adjacent to hers. Respondent is in her thirteenth year of teaching and currently teaches first grade at the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator, Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified, that removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in Gadsden County with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools state-wide: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Eight students from Ms. Hairston’s 2011 fifth-grade class testified at hearing. Of those 8 students, two testified that they had received assistance from Ms. Hairston during the test. T.W. was a male student in Ms. Hairston’s class. He testified that “in a certain period of time, she would point out answers for me.” He testified that she did not say anything to him, but “I just got the meaning that she was telling me to check it over again.” He also stated that she told the whole class to go over their tests again at the end of the test. L.T. was a female student in Ms. Hairston’s class. She referred to Mr. Pitts or Ms. Dixon being in the room. She testified that after Ms. Dixon or Mr. Pitts left the room, Ms. Hairston would walk around and “point out questions that maybe we would get wrong.” She testified that Mr. Pitts or Ms. Dixon came in 3-4 times. L.T. also stated that while Ms. Hairston told the class at the beginning of the test they could go back and recheck their answers when they were finished, she did not make a similar statement at the end of the test. On the other hand, students K.M., A.F., R.A., M.C., D.Y., and A.C. all testified that they did not remember Ms. Hairston giving any type of hints during the science FCAT, and that she did not point to answers on the tests. None of the students, including T.W. and L.T., had incredibly clear memories of the test, which is understandable given that they took the test over three years prior to the hearing. To the extent that these six students remembered Ms. Hairston saying anything, they remember her telling them to go back and read the questions over, in terms of the whole test. Tamika Battles was the proctor assigned to Ms. Hairston’s room. Although there was some dispute about how many days she was present during the science part of the FCAT, it is found that she was present for one of the two testing sessions.5/ Ms. Battles does not recall Ms. Hairston saying anything out of the ordinary, but rather simply walked around telling students to stay on task, and making general statements about test taking. She did not ever see her point to a particular student’s test. Ms. Battles had been trained in testing protocols, and believed that they were followed. Ms. Hairston also denied coaching any of the students or pointing out incorrect answers. She acknowledged pointing toward test booklets on occasion, not to point to a specific answer but to remind a student to focus or stay on task. Her testimony was credible. After careful review of the evidence, it is found that Ms. Hairston did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. T.W. was in Ms. Hairston’s class for the second time, having failed fifth grade the year before. He testified that Ms. Hairston did not say anything to him, but rather that he understood her to mean something that she never verbalized. While L.T. testified that Ms. Hairston would point to a question and say, “check your answers again,” she tied these actions to times when Ms. Dixon or Mr. Pitts came in the room. Neither Mr. Pitts nor Ms. Dixon signed the security log for Ms. Hairston’s class for either day of the science examination. Ms. Dixon signed in for one testing session on April 13, but not for either day of science testing, and Mr. Pitts is not signed in for any session at all. Credible testimony was also presented to indicate that while perhaps Ms. Dixon was present at some time during testing (and not necessarily science), Mr. Pitts was not. In addition, L.T.’s written statement focuses more on math questions than science questions. It is entirely possible, given the vague nature of her answers, that she was confusing the science FCAT with some other testing experience. In any event, T.W. and L.T.’s testimony, taken together or apart, does not rise to the level of credible, clear and convincing evidence of providing inappropriate assistance to students during the FCAT. Further, the type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Hairston to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that testimony is uniform that she walked around the room, not that she stopped for significant periods at any student’s desk. Ms. Hairston’s explanation that she commonly points in order to gain a child’s attention and get them to focus is reasonable. Several years of Respondent’s performance evaluations were submitted. Only those that were complete were considered. Those evaluations indicate that Ms. Hairston consistently has achieved effective, highly effective, or outstanding evaluations during her tenure at Greensboro Elementary School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2015.
The Issue Whether Petitioner has just cause to suspend Respondent, a classroom teacher, for five days without pay based upon her failure to follow the officially assigned Florida Comprehensive Assessment Test (FCAT) testing schedule, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Broward County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a seventh grade teacher at MMS, a public school in Broward County, Florida. Respondent has been employed by the School Board for approximately ten years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the collective bargaining agreement between the Broward Teacher's Union (BTU) and the School Board. Prior to teaching at MMS, Respondent taught school in Dade County for approximately 15 years. The FCAT is a test which was given annually since 1998 through the 2013-2014 school year to all Florida public school students in grades three through 11. The test measures student achievement in reading, writing, mathematics, and science based on the state's grade-level standards.2/ Respondent proctored FCAT exams since the test's inception. State, district, and school level training is provided annually to teachers, including Respondent, so they may comply with FCAT requirements and avoid potential ramifications to the school or the students for violation of those requirements. Ramifications for failing to comply with FCAT requirements include sanctions against the teacher and/or the school, and possible termination or invalidation of a school's letter grade. Teachers are specifically educated on the process of obtaining certification numbers and signing a receipt for certain materials designated to them for FCAT testing purposes. Furthermore, the teachers are provided a three-digit code which is provided to the students so that the State knows which teachers proctored which exams. The requirements and safeguards relating to properly proctoring and administering the FCAT testing are important to the integrity of such tests. 2013 FCAT The FCAT for the 2012-2013 school year was administered at MMS in April 2013. Respondent was the testing proctor during the mathematics FCAT on April 15, 2013. Respondent provided the students a testing reference sheet for the End of Course exam for an algebra class rather than the FCAT reference sheet. According to Respondent, this was the sheet that was distributed to her to provide to the students from the Guidance Department. This error was brought to Respondent's attention by students during the first session of the exam. Believing that she was not permitted to discuss the contents of the exam with the students, Respondent instructed the students to do the best they could with what they had. It is alleged that Respondent failed to follow appropriate testing procedures by not timely contacting administration or addressing the problem when the students brought it to her attention during session 1 of the FCAT Math test. Respondent's failure to address the situation, immediately, or during a scheduled break in the testing, led to the use of the wrong reference sheet for the second session as well as the first. Ultimately, the FCAT was invalidated for Respondent's students and the school district had to purchase an alternative exam for the students who were not provided the proper FCAT reference sheet. Respondent received a one-day suspension without pay, based on her failure to follow proper FCAT testing protocols, which Respondent did not contest. 2014 FCAT The FCAT testing process has been supervised by Principal Cheryl Cendon since she opened MMS as its Principal in 2002. Principal Cendon's process regarding the scheduling of FCAT testing, and assignment of teachers to groups of students to proctor, was consistent through the 2013–2014 school year. FCAT administration requires a complex schedule because of limited computer availability and teachers' scheduled planning periods and lunchtimes. The first step in this process is for Principal Cendon to prepare a draft schedule which she then shares with teaching teams to solicit their input. After receiving teacher input, Principal Cendon's second step is to meet with technical personnel to ensure that the appropriate number of computers is available for the testing as scheduled. The third step is for principal Cendon to meet with Exceptional Student Education (ESE) and English for Speakers of Other Languages (ESOL) teachers to determine whether special accommodations are required for particular students. The fourth and final step for Principal Cendon is to prepare a final schedule on colored paper to be disseminated at the FCAT teacher training session approximately two weeks prior to the beginning of testing. During Principal Cendon's tenure at MMS, teachers have often been assigned to proctor their Monday morning, first block, students for standardized testing, including for the FCAT. However, there is no requirement that teachers be assigned these groups and Principal Cendon has assigned different groups of students to teachers as needed in the past. Approximately two weeks prior to FCAT testing, the school transmits to the State a list of which students will be tested at what time, in which classroom, and by which teacher. The State then generates a ticket for each student which is provided to the students on the day of the test. On test day, teachers are required to pick up and sign out their assigned materials from a secure room monitored by Guidance. No one has the authority to modify the final schedule other than Principal Cendon. Respondent was on the "Innovators" teaching team during the 2013-2014 school year which included four other teachers. Principal Cendon met with the Innovators team for a "data chat" on February 14, 2014, to review the first draft of her FCAT schedule. At this meeting there was a discussion regarding changing the time of the testing for one lab but no discussion regarding which students were assigned to which teachers. Some members of the Innovators team, including Respondent, were not assigned their Monday morning, first block, students. On April 9, 2014, MMS teachers, including Respondent, attended FCAT training and received the final FCAT testing schedule and assignment printed on blue paper which had been prepared by Principal Cendon. This training included a PowerPoint presentation. On the fourth slide under the heading "testing reminders," teachers were instructed: Refer to schedule set up for each grade level. ASK QUESTIONS BEFORE TESTING BEGINS. Follow exact testing time and day for each session, NO DEVIATIONS. FAILURE TO COMPLY WITH THESE RULES MAY RESULT IN REPRIMAND, CRIMINAL PENALTY OR LOSS OF CERTIFICATION. Between February 14, 2014, and the first day of FCAT testing, April 23, 2014, Respondent did not request a change in the schedule from either Guidance or Principal Cendon. Respondent was concerned that she was not assigned her Monday morning block of students (Innovators E) for the 2014 FCAT. Sometime after receiving the draft schedule in February 2014, Respondent addressed her concerns with Innovators Team Leader, Kim Baker. Either before or after receiving the draft schedule, Ms. Baker briefly spoke separately to Principal Cendon and Guidance employee, Berta Hernandez-Berkowitz, and stated "we're testing our regular Monday morning groups" to which Principal Cendon and Ms. Hernandez-Berkowitz purportedly said "yes." In fact, Ms. Baker was assigned her Monday morning group of students. Respondent believes she had a similar conversation with Ms. Hernandez-Berkowitz in passing.3/ Neither Respondent nor Ms. Baker advised Principal Cendon or Ms. Hernandez-Berkowitz of their belief that the final schedule was in error because several team members were assigned students other than their Monday morning, first block. Based upon these informal and brief conversations, Respondent and Ms. Baker decided to create a different schedule for the Innovators team after distribution of the final schedule on April 9, 2014. Respondent prepared the revised schedule for the week of the FCAT because she had a teaching schedule template on her computer. Respondent disseminated it to the Innovators teachers by e-mail on or about April 14, 2014, and also advised several team members verbally prior to the FCAT on April 23 to follow the schedule which she (Respondent) created. Respondent did not send the revised schedule to Guidance or Principal Cendon. Two members of the team, Sophia Shaw and Sandy Leung, were confused by the e-mail and direction from Respondent and asked the FCAT Coordinator, Janet Jackson, prior to the test, which schedule to follow. They were instructed by Ms. Jackson to follow the blue schedule, which was the final schedule prepared by Principal Cendon. On the first morning of FCAT testing, April 23, 2014, Respondent reported to the secure room and signed out the bin of materials for Innovators E, her Monday morning group, rather than her assigned group of Innovators B. Similarly, Ms. Vargas signed out the bin of test materials for her Monday morning group, Innovators D, rather than her assigned group for FCAT, Innovators C. When Ms. Leung arrived to sign out her assigned bin for Innovators D, she initially grabbed the wrong bin for Innovators B because the materials for D had already been removed from the room by Ms. Vargas. Ms. Leung realized the error because Innovators B was assigned to Respondent. Ms. Leung brought this error to the attention of Ms. Jackson. Respondent and Ms. Vargas were instructed to immediately return to the secure room to pick up the correct materials as assigned on the final schedule prepared by Principal Cendon. When Ms. Shaw arrived to pick up her assigned materials for Group E, she found they had already been checked out by Respondent and only the materials for Group C remained. Both Ms. Leung and Ms. Shaw had to wait for their materials to be returned to the test room and be recounted before they could go to their classrooms. This resulted in a delay of the start of the test for Ms. Shaw's students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order finding that just cause exists to suspend the employment of Respondent, Nicole Pollino, without pay for a period of five days for gross insubordination. DONE AND ENTERED this 30th day of April, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2015.
