The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Margaret B. Mitchell, was at all times material hereto, employed by the School Board as a teacher (under a continuing contract of employment), and assigned to Barbara Goleman Senior High School (BGSHS) where she taught mathematics. 2/ Pertinent to this case, each student in Florida must earn a passing score on each part of the High School Competency Test (HSCT), reading (communications) and mathematics, or be exempted from each part in order to qualify for a regular high school diploma. Section 229.57(3)(c)5, Florida Statutes. Given the nature of the test, it is maintained and administered in a secure manner such that the integrity of the test will be preserved. Pertinent to the preservation of test security, the Department of Education has adopted Rule 6A-10.042, Florida Administrative Code, which provides: Tests implemented in accordance with the requirements of Section [ ] . . . 229.57 . . . Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests will be preserved. * * * (b) 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. * * * 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. . . . The legislature has also addressed the issue of test security through the enactment of Section 228.301, Florida Statutes, which provides: 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: Given 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 a secure test booklet; [or] * * * (g) Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates the provisions of Section 228.301, Florida Statutes, 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. Section 228.301(2), Florida Statutes. In October 1997, the HSCT was scheduled to be administered at BGSHS, with the reading (communications) portion scheduled for Saturday, October 4, 1997, and the mathematics portion scheduled for October 18, 1997. Respondent was one of a number of teachers selected to proctor both portions of the examination. As such, it was her responsibility to distribute the testing materials, collect the materials after testing, and maintain test security. On October 4, 1997, Respondent proctored a class for the communications portion of the HSCT, and distributed and collected the test materials. Those materials (the HSCT booklet) are triple sealed: the outer seal secures the whole booklet, while the enclosed communications portion and mathematics portion of the examination are separately sealed. On receipt of the booklet, students should only have broken the outer seal for the whole booklet and the seal on the communications portion (and not the mathematics portion) of the examination; however, one of Respondent's students accidentally broke the seal for the mathematics portion. Respondent, while responsible for test security (including inventorying all examinations and reporting broken seals), failed to report such breach. During the late afternoon of October 7, 1997, Respondent sent an e-mail message to four fellow mathematics teachers, Carolyn Guthrie, Jo Janke, Linda Galati, and Vicki Weintraub, advising them that they would find a "blue present" in their school mail box. The e-mail was accessed the morning of October 8, 1997, and the "blue present" Respondent referred to, a blue computer disc, was located in each mail box. Later that morning, Ms. Guthrie put the disc in her computer to see what it contained and discovered a file labeled "HSCT '97" which, when opened, contained a series of math questions. According to Ms. Guthrie, she immediately closed the file, returned the disc to Respondent, and told her "I didn't want it." Later, on reflection, Ms. Guthrie reasoned her response (given her suspicion that the disc contained the mathematical portion of the 1997 HSCT) was inadequate. Consequently, she spoke with the other teachers (Ms. Janke, Ms. Galati, and Ms. Weintraub) and took possession of their discs. Ms. Guthrie delivered these discs, as well as her suspicions regarding the information contained on the discs, to Jorge Sotolongo, principal of BGSHS. Subsequent investigation confirmed that the information (math questions) contained on the blue discs had been derived from the 1997 HSCT, and that the examination had been compromised. 3/ Consequently, the second portion of the HSCT (the mathematics section) scheduled for October 18, 1997, was cancelled. 4/ Ultimately, based on its perception that Respondent intentionally breached test security, the School Board suspended Respondent from her employment and commenced these proceedings to dismiss her. In resolving the pending charge, it cannot be seriously disputed that the information Respondent provided her fellow teachers on the blue discs was derived from the mathematics portion of the 1997 HSCT, and that the mathematics portions of the test was compromised. What remains to resolve is whether, as contended by the School Board, the proof demonstrates (more likely than not) that Respondent knowingly and willfully reproduced or revealed the test. Also to resolve (or, stated otherwise, inherent to the resolution of the pending charge) is whether Respondent's explanation regarding the source for the information she copied onto the blue discs, as well as her perception of its content, is worthy of belief. In this regard, Respondent avers that on the afternoon of October 7, 1997, she received a "black disc," anonymously, in her teacher's mail box at BGSHS; that she briefly opened the disc and scanned (without studying) its contents; concluded the disc contained "practice questions" for the HSCT; and copied the material on to the blue discs for her fellow teachers. Giving due regard to the proof, as well as her education, training, and experience, it must be resolved that Respondent's explanation regarding the source of the information she copied onto the blue discs, as well as her perception of its content, is inherently improbable and otherwise unworthy of belief. Rather, the proof points unfalteringly to the conclusion that Respondent knowingly and willfully reproduced and provided copies of the mathematics portion of the 1997 HSCT to her fellow teachers. 5/ Based on the foregoing incident, Respondent was arrested and charged in the County Court, Dade County, Florida, Case No. M98-56462, with a breach of test security (Section 228.301, Florida Statutes). Respondent entered a plea of not guilty; however, on June 28, 1999, after hearing, she was found and adjudicated guilty of the offense. As a consequence, Respondent was ordered to pay a fine of $1,000; to pay costs of $311; sentenced to 90 days house arrest; and ordered to serve a period of 6 months probation. Respondent's conduct (of compromising test security) is inconsistent with her obligation to exercise the best professional judgment and integrity; to maintain the respect and confidence of one's colleagues, of students, and of parents; to achieve and sustain the highest degree of ethical conduct; and to maintain honesty in all professional dealings. In sum, through her conduct, Respondent has evidenced that she is untrustworthy, unreliable and lacking in good moral character, such that her effectiveness in the school system has been seriously impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which sustains Respondent's suspension without pay, and which dismisses her from employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 28th day of December, 1999.
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.
Findings Of Fact The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input. As a result, NCEES became aware of some typographical and other errors contained in that document. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination. In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause. DONE and ENTERED this 14th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein. COPIES FURNISHED: Wellington H. Meffert, II Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorian Kenneth Zinck, pro se 521 Beech Road West Palm Beach, Florida 33409 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented are whether Respondent provided prohibited assistance to examinees in a Florida Comprehensive Assessment Test in violation of Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2002), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B- 1.006(3)(a), (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 685117 that is effective through June 30, 2007 (teaching certificate). Respondent is certified to teach elementary education, including math, science, and social studies. The Brevard County School District (District) has employed Respondent as a teacher for 14 years. In March 2003, the District employed Respondent as a fifth-grade teacher at Gemini Elementary School (Gemini). At Gemini, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth graders. A student identified in the record as L.H. was upset after the first day of the FCAT exam. She told her mother that night that she felt like she had cheated because of assistance she received from Respondent during the FCAT. The next day, the mother of L.H. reported the allegation to administrators at Gemini. The administrators immediately replaced Respondent as a proctor, conducted an investigation, invalidated the test scores of 26 students, and subsequently transferred Respondent to Endeavor Elementary School (Endeavor). While the results of the investigation were pending, District employees conducted a public meeting to allow parents to voice their concerns over the invalidation of FCAT results. District employees did not address the specific facts surrounding the invalidation of the test results due to the pending investigation. However, the matter gained public attention as a result of the actions of District employees. District employees rely, in part, on FCAT scores to determine whether fifth-grade students progress to the sixth grade. In March 2003, Gemini fifth graders generally needed a passing score on the FCAT to progress to the next level. The District also needed to test at least 95 percent of its fifth- grade students or face applicable sanctions. The invalidation of the FCAT scores did not prevent any of the 26 students from progressing to the sixth grade. Nor did the invalidation of the FCAT scores prevent the District from testing 95 percent of the students in the District. On May 17, 2005, Petitioner issued an Amended Administrative Complaint (Complaint). The Complaint alleges, inter alia, that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2002). The statute makes it a violation for Respondent to knowingly or willfully coach an examinee during the FCAT or alter or interfere with the response of an examinee. Respondent signed an FCAT Test Administration Security Agreement (security agreement) indicating that she had read and understood the statutes and rules related to the administration of the FCAT. A test manual and training that proctors received before the FCAT directed Respondent to read test directions to examinees and provide no additional help. No finding is made that Respondent failed to follow test manual and training directions. The Complaint does not allege that Respondent failed to "follow test administration directions specified in . . . test . . . manuals. . . " within the meaning of Subsection 100824(1)(f), Florida Statutes (2002). Evidence of what transpired in Respondent's examination room in March 2003 consists of the testimony of five students and the written statement of another student, all of whom Respondent proctored. Incriminatory evidence consists primarily of the testimony of four students. Two students testified at the formal hearing, and two testified by deposition. The rest of the incriminatory evidence enters the record as a written statement from a fifth student completed in April 2003.1 Exculpatory evidence consists of the testimony of a sixth student who testified during the formal hearing. The six students are identified in the record, respectively, as T.M., L.M., S.O., J.C., L.H., and W.D. They were approximately 11 years old in March 2003. The five students who testified were approximately 13 years old at the time of the formal hearing, and approximately two years had passed since they took the FCAT. None of the students were enrolled in Gemini at the time of the hearing. For reasons discussed in the Conclusions of Law, it is legally insufficient for incriminatory evidence to merely show that Respondent provided assistance "by any means" or "in any way." The testimony and written statement must be clear and convincing that Respondent committed a specific act that is statutorily prohibited because it coaches an examinee or alters or interferes with the examinee's response (prohibited assistance).2 Incriminatory evidence must satisfy two standards to be clear and convincing. The two standards have been judicially differentiated as a qualitative standard and a quantitative standard.3 The qualitative standard requires incriminatory evidence to satisfy several requirements. The five students who testified and provided a written statement for Petitioner must be credible. The memory of each student must be clear and lack confusion. The content of the testimony and written statement must describe what was said and done during the FCAT examination precisely and explicitly and must distinctly recall material facts. The testimony and written statement must be direct, unequivocal, and consistent.4 Incriminatory evidence opining that Respondent assisted an examinee is conclusory if it is not substantiated by precise and explicit details that are distinctly remembered by the student and are sufficient for the trier of fact to independently determine whether the conduct of Respondent provided prohibited assistance to an examinee. Conclusory testimony fails the qualitative standard, is not clear and convincing, and invades the province of the trier of fact by denying the trier of fact an evidential basis to independently determine whether the specific acts committed during the FCAT amounted to prohibited assistance.5 Incriminatory evidence must also satisfy a quantitative standard. The sum total of incriminatory evidence must be of sufficient weight that it produces in the mind of the trier of fact a firm conviction, without hesitation, as to the truth of the factual allegations in the Complaint.6 The trier of fact bases the remaining findings on a determination of whether it is clear and convincing from the testimony and written statement of the six students that Respondent provided prohibited assistance to an examinee. The trier of fact first weighs the incriminatory evidence to identify evidence that satisfies the qualitative standard (qualitative evidence) and then determines whether the qualitative evidence satisfies the quantitative standard. The testimony of S.O. was credible, but the trier of fact was unable to assess the credibility of T.M. and L.M. by observing their demeanor and candor. The content of the testimony and written statement is conclusory. The incriminatory evidence lacks the precise and explicit detail needed for the trier of fact to independently substantiate the conclusions of the students. S.O., T.M., and L.M., each stated in conclusory fashion that Respondent provided assistance to the respective examinee on one question in the science portion of the FCAT. However, none of the students distinctly remembered their respective question; the answer each provided; or the details of the conduct or statements of Respondent.7 It is less than clear and convincing that the answer each student provided was any different from the answer the student would have provided without the alleged assistance from Respondent. The conclusory statements by S.O., T.M., and L.M. are tantamount to opinions on an ultimate issue of fact without precise and explicit details required for the trier of fact to independently find that the statements and conduct of Respondent concerning a specific question and answer provided prohibited assistance. Such conclusory evidence effectively invades the province of the trier of fact. The testimony of J.C. is sufficiently specific to satisfy the qualitative standard for clear and convincing evidence. J.C. testified that he asked Respondent what a waxing crescent moon is, and Respondent stated it is a one-fifth moon to the left. However, J.C. testified by deposition, and the trier of fact is unable to determine the credibility of J.C. by assessing the demeanor and candor of the witness. Moreover, it is less than clear and convincing that Respondent provided J.C. with the answer to the question, coached J.C., or altered or interfered with the response of J.C.8 There is no evidence that the response J.C. provided to the question was any different from the response he would have provided in the absence of the alleged assistance from Respondent. The testimony of L.H. is credible and sufficiently detailed to satisfy the qualitative standard for clear and convincing evidence. L.H. testified that Respondent answered an inquiry from L.H. by stating that the test question has nothing to do with the sun and the moon and to take away all the answers about the sun and the moon. L.H. testified that only one answer remained. The testimony of L.H. also provided sufficient detail to enable the trier of fact to make an independent finding as to whether the effect of the alleged assistance was to coach L.H. or to alter or interfere with the response given by L.H. The testimony of L.H. is the only evidence from Petitioner that satisfies the qualitative standard for clear and convincing evidence. However, the testimony of L.H. is not quantitatively sufficient to be clear and convincing evidence. For reasons stated in the Conclusions of Law, the testimony of one fact witness that is not corroborated by other clear and convincing evidence is not legally sufficient to be clear and convincing. Even if uncorroborated testimony were legally sufficient, the testimony of L.H. does not satisfy the quantitative standard for clear and convincing evidence because it is in apparent conflict with exculpatory testimony from W.D. W.D. testified that Respondent refused to assist him during the FCAT and did not assist anyone else.9 The testimony of W.D. conflicts with that of L.H. if they took the FCAT together. Respondent was the proctor for L.H. and W.D. on the first day of the FCAT. Petitioner did not place W.D. in a different room from L.H. by clear and convincing evidence.10 Evidence that supports a reasonable inference that L.H. and W.D. were in the same room, although not a preponderance of the evidence, is sufficient to create hesitancy in the mind of the trier of fact and preclude a firm conviction that Respondent committed specific acts prohibited by Subsection 1008.24(1)(c), Florida Statutes (2002), and Florida Administrative Code Rule 6A-10.042(1)(c) and (d). If it were determined that Respondent violated the preceding statute and rule, it is less than clear and convincing that the violation was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2002). No applicable rule defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the alleged prohibited assistance was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the alleged prohibited assistance satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the alleged violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2002). After District employees investigated the incident and invalidated the test scores of 26 students, the District did not terminate the employment of Respondent. Rather, the District transferred Respondent to Endeavor. It is clear and convincing from the testimony of District personnel, administrators at Gemini, fellow teachers, parents, and students, and from previous job evaluations, that Respondent has been and continues to be an excellent teacher. Respondent brings out the best in students. Respondent has a wonderful rapport with students, instills in students the desire to learn, and inspires the imagination of students. Respondent emanates genuine enthusiasm in the classroom as well as a fun loving attitude. Respondent goes out of her way to make sure that children with learning problems achieve their goals and gain satisfaction. Respondent is very good at explaining difficult subjects to students. Respondent tutors students after school. Respondent is able to identify and focus on unique qualities in each student. Respondent does not display bias or prejudice toward any student. Respondent uses a reward system for classroom discipline that is effective and ensures an attentive class. Respondent is very calm in the classroom. Respondent never loses her temper or yells at students. Respondent is professional, consistent, structured, fair, compassionate, nurturing, and punctual. Respondent is intelligent, reliable, and dedicated. Respondent spends a great deal of time preparing her lessons and for her work with students. Respondent teaches math, science, and social studies and is a valuable asset to the District. Any notoriety surrounding the events in March 2003 arose from the action of District employees. For reasons stated in the Conclusions of Law, Petitioner cannot penalize the teaching certificate of Respondent on the ground that the alleged prohibited assistance became notorious through the actions of District employees. The alleged prohibited assistance did not violate relevant standards of professional conduct within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2002). The evidence is less than clear and convincing that Respondent possessed the culpable intent required in Florida Administrative Code Rule 6B-1.006(3)(e), (4)(b), or (5)(a). L.H. was very upset over the events in March 2003 and over the criticism she received from other students for complaining about Respondent to school officials. However, the evidence is less than clear and convincing that the alleged prohibited assistance failed to protect L.H. from conditions harmful to the learning or mental or physical health or safety of L.H. within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a). There is no evidence that public scorn threatened the safety of L.H. or interfered with what L.H. learned at Gemini. L.H. achieved her educational goals and progressed to the sixth grade. Nor is there any evidence that L.H. suffered any identifiable mental or physical impairment as a result of the alleged assistance from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2005.
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue The issue is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to fill the position of Exceptional Student Education (ESE) Coordinator.
Findings Of Fact Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida. Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator. As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504. The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations. The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman. Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision. Ms. Jeselnik has worked for the district for approximately 13 years. After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually. When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher. Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area. A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998. Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision. When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist. Respondent performed an "annual evaluation" of Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist. There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations. On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students. The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel. Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity. On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not complete a school psychology internship because one was not required for certification in Florida at that time. Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner, Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students. On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials. After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary. On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998. On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request. Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services. The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile. During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement. Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999. Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department. On or about August 10, 1998, Respondent gave Mr. Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree. Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule. In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter, Ms. Farrior was responsible for all testing and diagnostic services in the district. Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings. On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist. Jim McCall has been the district's Finance Officer for 15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts. Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice. When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill. On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member. Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members. On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses. On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999. On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states: On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original) Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones. On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC. On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract. Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team. On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School. On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised. On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part: During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter. In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent. On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status. By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre- audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator. Sometime during the December 1998 school holidays, Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr. Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity. During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist. By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible." In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc. On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements. As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner. Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district. DHC sent the district the following four invoices: (a) an invoice dated November 30, 1998, in the amount of $440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998; (c) an invoice dated November 3, 1998, in the amount of $8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998. Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998. Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff. At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00. During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided. Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies. Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs. In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and (c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts. During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES. During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for certification as a school psychologist. This information was incorrect. Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course. In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam. Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only to teach psychology to administer intelligence tests as an "out- of-field" school psychologist. During a January 19, 1999, school board meeting, Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and re-evaluations of ESE students formerly tested by Ms. Farrior. The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder. Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re- evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students. The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department. By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual. Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA: Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and "addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis. Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent. Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to. Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary. In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance. All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests. By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct. By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified school psychologist for administering tests and assessing placement for ESE students. After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request. Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis. The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count. In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure. The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice. The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence. By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members. By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints. By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments. On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program. By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator. On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000. On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the office of Samantha Nelson, an ESE Resource Specialist. Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking. Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent. The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening. Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future. Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance. At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for $200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations. At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00. By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint. Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter. By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher. On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services. DHC sent the district the following invoices: (a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of $3,620.35; (b) invoice dated December 28, 1998, in the amount of $2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77. The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of $10,167.72. She then sent the invoices to Mr. McCall's office for payment. Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts. By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not intervene in personnel matters, which are within the purview of local officials. The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year. In a memorandum dated March 22, 1999, DOE advised Ms. Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test. At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work. In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior. On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district. The district provides ESE services to NAFI's clients. Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives. At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement. In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts. In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified school psychologist or an intern in an approved school psychology internship program. Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position. At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist. The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation. Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage. In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent. On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of Child Find Specialist in a position that Petitioner had not approved. In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999. On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students. At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months (10+2) under a salary schedule, one to be filled immediately and one to be filled later. At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service. At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent. Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract; (d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f) Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired. Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and (d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records. Mr. Barnhill voted to reject Respondent's nomination. He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion. At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time. On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year. DONE AND ENTERED this 30th day of November, 1999, 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 30th day of November, 1999.
