The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent, Jean Regan, from her employment as a teacher.
Findings Of Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by statute or rule is a question of fact to be decided by the trier-of-fact, considering the testimony and evidence in the context of the alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995). Thus, deciding whether Ms. Regan’s alleged conduct violates the law as charged in the School Board’s termination letter is a factual, not legal, determination. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by assisting students in selecting correct answers. Ms. Regan credibly denied ever assisting the students in that manner. In fact, the credible evidence confirmed that Ms. Regan had little opportunity to read the passages to determine the correct answers and, given that the students had different versions of the FSAT, it was highly improbable that she could have known the correct answers when moving from student to student. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by otherwise violating the FSAT standards. The credible evidence confirmed that Ms. Regan permissibly could: touch the test booklets and point at items while providing oral accommodations; flip through the test booklet to look for the questions the students had identified as needing an accommodation because that is exactly how they practiced in the classroom; and encourage the students to make sure that they completed the test by reading the corresponding directions, particularly after they prompted her to do so, just as they learned in class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Polk County School Board, issue a final order reinstating the Respondent, Jean Regan, as a classroom teacher and awarding her back pay to the date on which the School Board first suspended her without pay. DONE AND ENTERED this 26th day of February, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 26th day of February, 2020. COPIES FURNISHED: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830-4620 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed) Jacqueline Byrd, Superintendent 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed)
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has been a Florida-certified teacher. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board). Respondent is a dedicated educator who has a passion for teaching. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/ The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/ It contains multiple choice questions testing basic skills in reading/communications and mathematics. It has been administered since the 1980's and has always been a "secure" test. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/ Having to replace one of these "editions" because of a breach of security would entail "significant cost." Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator. The importance of maintaining test security was emphasized during the training. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials. The training materials repeatedly warned that test administrators were not to open the test booklets. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Give examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet; Coach examinees during testing or alter or interfere with examinees' responses in any way; Make answer keys available to examinees; Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing; Fail to follow test administration directions specified in the test administration manuals; or Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule. Rule 6A-10.042, Florida Administrative Code, provides as follows: Maintenance of Test Security Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. Examinees shall not be given answer keys by any person. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following: All test materials shall be kept in secure, locked storage prior to and after administration of any test. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations. (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43, 45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that item. 7/ Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya. She did not try to hide from Ms. Noya that she was looking at an open test booklet. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day). Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2002.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade. Respondent's improper assistance to his students prevented school officials from obtaining an accurate measurement of the academic abilities of his students. The test results were invalidated and the students were retested. According to the parties, a newspaper article related to the matter was published in a local newspaper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code Rule 6B-1.006(3)(a), and placing him on probation for a period of one year. DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
