The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has been a Florida-certified teacher. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board). Respondent is a dedicated educator who has a passion for teaching. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/ The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/ It contains multiple choice questions testing basic skills in reading/communications and mathematics. It has been administered since the 1980's and has always been a "secure" test. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/ Having to replace one of these "editions" because of a breach of security would entail "significant cost." Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator. The importance of maintaining test security was emphasized during the training. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials. The training materials repeatedly warned that test administrators were not to open the test booklets. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Give examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet; Coach examinees during testing or alter or interfere with examinees' responses in any way; Make answer keys available to examinees; Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing; Fail to follow test administration directions specified in the test administration manuals; or Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule. Rule 6A-10.042, Florida Administrative Code, provides as follows: Maintenance of Test Security Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. Examinees shall not be given answer keys by any person. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following: All test materials shall be kept in secure, locked storage prior to and after administration of any test. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations. (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43, 45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that item. 7/ Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya. She did not try to hide from Ms. Noya that she was looking at an open test booklet. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day). Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2002.
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001.
The Issue The issue is whether Petitioner is entitled to the validation and scoring of his test scores on the Florida Educational Leadership Examination on January 21, 2006.
Findings Of Fact On January 21, 2006, Petitioner took the Florida Educational Leadership Examination (FELE) at a site in Miami. Persons who take and pass the FELE are eligible for certification as administrators. As is the case with all persons taking the FELE, prior to attending the examination, Petitioner received the "Certification Examinations for Florida Educators . . . Registration Bulletin" (Registration Bulletin). The Registration Bulletin warns prominently on page 14: I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room. Prior to taking the FELE, Petitioner also received a document titled, "Important Information about Cheating Behaviors" (Booklet). Section 1 of the Booklet warns that "cheating" is defined as, among other things: "During the examination, using, or attempting to use, prohibited aids, as identified in Section 2." Section 2 of the Booklet describes "prohibited aids" as follows: You cannot bring any of the following prohibited aids to the test room. They include: cell phones or any other electronic communication or recording device such as a beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player. . . . The last section of the Booklet is titled, "General Testing Information and Procedures." This section warns: "If you bring any prohibited items such as a cell phone to the test, you will not be admitted to the test room." The second to last page of the Booklet restates: "I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room." Paragraph 4 of the last page of the Booklet warns one last time: "Do not bring to the test room any prohibited aids such as cell phones (see the enclosed letter for other prohibited aids); leave them locked in your car. You will not be admitted to the test if you bring them with you. If you are discovered to have prohibited aids during the test, your test scores may be invalidated." Test administrators, room supervisors, and proctors receive a Test Administration Manual for the Florida Educational Leadership Examination. Page 17 of the manual advises that the examinees receive several warnings not to bring prohibited aids, including cell phone, into the test room or break areas around the test room. The manual informs the testing staff: DO NOT ADMIT an examinee to a test room if you observe a cell phone or other prohibited device. Tell the examinee he or she cannot enter with the device but may be admitted if he or she can return without it (e.g., lock it in the car) AS LONG AS IT IS POSSIBLE TO DO SO AND RETURN TO CHECK IN BY THE TIMETESTING BEGINS (15 minutes after the reporting time on the admission ticket). The manual adds: If the prohibited aid is not discovered until after the examinee has been admitted to the test room, see Identifying and Documenting Suspected Cheating, incident number 1 on the next page. The manual lists three incidents, arranged in ascending order of seriousness. These incidents and the appropriate procedures for the testing staff are: Incident: It is discovered that an examinee has a prohibited device, SUCH AS A CELL PHONE, but the examinee is not immediately suspected of using the device (e.g., a cell phone rings and the examinee turns it off without using it). PROCEDURE: ? Quietly inform the examinee that he or she is in possession of a prohibited aid, which the examinee has been informed is not permitted in the test room. ? Tell the examinee to place the aid in the envelope that has been provided by the Institute for that purpose and write the examinee's name on the envelope. ? Hold the envelope in a safe location. ? Tell the examinee that the item may be retrieved at the end of the test. ? If the examinee refuses to relinquish the prohibited device, follow MISCONDUCT guidelines on page 21. ? Carefully document the incident, noting the time and duration of the incident, for inclusion in the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. Incident: An examinee is observed USING a prohibited aid, such as a cell phone or photographic device, to obtain or communicate test content either in the test room or in break areas around the test room. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the prohibited aid and ask him or her to step outside the room. The Room Supervisor should take along and protect the test materials and prohibited aid. ? The prohibited device should be examined to determine if there is the possibility that confidential test information was recorded (for example, if the device is a scanner pen or if a cell phone has a lens device). If so, document that information on the C-2, Cheating and Misconduct Observation Report. DO NOT ATTEMPT TO CONFISCATE THE DEVICE. ? If the examinee hides the device, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. ? If the examinee causes a disturbance, such as refusing to leave or return test materials, see MISCONDUCT guidelines on page 21. Incident: An examinee is SEEN WITH A "CHEAT SHEET" OR IS OBSERVED USING NOTES OR OTHER WRITTEN MATERIALS to obtain information or pass information to another examinee. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the written notes and ask him or her to step outside the room, taking the test materials and written notes with you. ? The notes should be examined. CONFISCATE THE NOTES. If the examinee hides the notes, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the confiscated notes and answer folder to the C-1 irregularity report. Respondent's exhibit omits page 21 of the manual, which contains the "misconduct guidelines. The only other relevant provision in the portion of the manual included in the exhibit provides that the Room Supervisor should greet the examinees with a scripted introduction. This introduction includes the warning: "Cell phones, books, study aids, calculators, electronic devices, and papers of any kind, including scratch paper, are NOT permitted during the testing." The Room Supervisor posted in a prominent place at the front of the test room a notice, in large print, stating: "cell phones are prohibited in test rooms and surrounding break areas." Petitioner could not possibly have avoided seeing the notice, which was printed on yellow paper, prior to starting subpart one of the FELE. Although Petitioner arrived at the test room in time for the commencement of subpart one of the FELE, he was late enough that he missed some of the pretest instructions. As he entered the test room, he was wearing an earpiece, which communicates with his cell phone by way of Bluetooth wireless technology, provided the cell phone is sufficiently close to the earpiece. As Petitioner walked past the Room Supervisor to take a chair in the test room, the Room Supervisor immediately noticed the ear piece and recognized it as a Bluetooth device, which would allow for wireless, remote communication with a cell phone. The Room Supervisor informed Petitioner that he needed to remove the device, but Petitioner replied only that he would turn it off. Lacking much time for an extended exchange with Petitioner, the Room Supervisor joked that such devices cause cancer and directed one of the proctors to help Petitioner complete the registration application. By the time that Petitioner had entered the test room, the Room Supervisor had already given the instructions on how to complete the registration application. As Petitioner was taking his seat, the Room Supervisor began giving the instructions on how to take the test. For some reason, Respondent introduced into the record a registration application of Petitioner for the October 22, 2005, administration of the FELE. However, Petitioner likely completed the same form for the January 21, 2006, administration of the test. The form states, just above the examinee's signature: "I hereby agree to the conditions set forth in the Registration Bulletin " At least partly due to Petitioner's late arrival, the group in his room was late starting the test, which was being administered simultaneously in several separate rooms at this test center. A few minutes after starting the test, the Test Supervisor was told by the proctor, who had attended to Petitioner, that Petitioner still had the earpiece in his ear. The Room Supervisor informed the proctor to summon the Test Administrator to handle the situation. The Test Administrator entered the room a few minutes later and saw the Bluetooth earpiece in Petitioner's ear while he was taking subpart one of the FELE. During the next break, the Test Administrator approached Petitioner and told him he could not use the Bluetooth earpiece during the test. Petitioner responded that the device was off and other examinees had cell phones in their pockets and purses. The Test Administrator offered to take the device up to his office. Petitioner refused to relinquish the device. After considerable coaxing, Petitioner finally agreed to remove the device during the next two subparts of the test. By letter dated March 1, 2006, Respondent informed Petitioner that it was invalidating his scores on subtest one, and thus subtests two and three, of the Florida Educational Leadership Examination (FELE) administered on January 21, 2006. The letter states that several witnesses had seen Petitioner, during subtest one, wearing in his ear an earpiece of a cell phone. There is no doubt that the Room Supervisor would have allowed Petitioner to take all three subparts of the FELE, if Petitioner had agreed to the simple request to remove his Bluetooth earpiece. Petitioner tried to justify his intransigence by contending that his earpiece was off and other examinees had cell phones in their pockets or purses. Evidently Petitioner was unaware on the morning of the test that his choice was to remove the earpiece before starting the test or take the test with the earpiece in and have all of his scores invalidated. Petitioner chose the second option, so Respondent properly invalidated all of his scores.
Recommendation It is RECOMMENDED that the Department of Education enter a final order invalidating Petitioner's scores on subparts one, two, and three of the Florida Educational Leadership Examination administered on January 21, 2006. DONE AND ENTERED this 20th day of June, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2006. COPIES FURNISHED: Lynn Abbott, Agency Clerk 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 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott J. Odenbach Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 John Roques 17475 Southwest 182 Avenue Miami, Florida 33187
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
