The Issue The issue in this proceeding is whether Petitioner was properly graded on his exam for licensure as a professional surveyor.
Findings Of Fact On April 13, 2001, Petitioner took the Professional Surveyors and Mappers Examination. He received a score of 68 on the Florida Jurisdictional Essay portion of the exam. A score of 70 on the Essay portion is required to pass. Petitioner challenged items 3, 4, 6, 7, 9, 13, and 14 on the examination. Additionally he claimed that the award of points and grading weights used to grade the exam was different than the weight percentages reflected in the candidate information booklet. Petitioner received 6 of the 8 available points for item 3; 3 of the 5 available points for item 4; 0 of the 10 available points for item 6; 6 of the 10 available points for item 7; 4 of the 5 available points for item 9; 9 of the 10 available points for item 13; and 4 of the 8 available points for item 14. Petitioner’s examination was re-scored through a "Third Grader" review process as described below. When petitioner’s exam was re-scored, he did not receive any additional points. As established by testimony of L. Ray Nolting, Respondent's expert exam developer or psychometrician, the Florida Jurisdictional Essay Exam is prepared by a professional surveyor, who also serves on the examination committee. The Essay exam is then worked by two professional surveyors who ensure the Essay meets minimum technical standards and that the grading criteria is appropriate. The Essay is then reviewed by the examination committee (made up of five professional surveyors and one member of the Board who is also a professional surveyor) to check the grade sheet and the Essay to ensure that it is an appropriate examination. In the course of grading each exam, photocopies of each candidate's exam booklet are given to two separate graders who are professional surveyors. The graders score each exam blindly (they only know the candidate’s number). Each grader’s score is averaged to reach a final grade for the candidate. If one of the graders awards a passing score and the other grader awards a failing score, the exam receives a third grader review process. The third grader review involves a review by the entire committee (five professional surveyors and one Board member, who is also a professional surveyor). The committee re-grades the exam and comes to a determination as to the final grade for the candidate. Petitioner's claim, that the award of points and grading weights used to grade the exam is not in accordance with standards noticed in the candidate information booklet, is inaccurate. The 60 percent Minimum Technical Standards, 30 percent Principles and Practice, and 10 percent Description and Communications grading percentages, noticed and advertised in the candidate information booklet, is an accurate reflection of the breakdown of percentages used to score the 14 items in the examination. The Minimum Technical Standards, Principles and Practice, and the Description and Communications are areas of the examination that overlap. Some of the points in one of these areas could count in another area. However, the examination committee reviewed the Essay portion of the test, prior to its administration, to ensure that the grade sheet reflected the 60, 30, and 10 percentages as represented in the candidate information booklet. Kathleen R. Shirah, Respondent's expert in land surveying, currently serves on the examination committee for the Department of Business and Professional Regulation, Bureau of Testing, where she helps prepare and review the Professional Surveyors and Mappers Examinations. She has served in this capacity on the committee for eleven years. Shirah's testimony establishes that the 60, 30, and 10 percentages represented in the candidate information booklet are appropriate. Item 3 on the examination required Petitioner to calculate the bearings and distances of Parcel "A." To complete this task, Petitioner had to locate a starting point using the available evidence and procedures of boundary to determine the admissibility of a monument in perpetuating the boundary corner. Application of several criteria was required to determine the admissibility of the monument. The first criteria related to physical characteristics of the monument itself. According to the exam question's factual scenario, the permanent reference monuments for this parcel were marked with a 4 x 4 concrete monument, bearing a cap with the license number of the original surveyor. The monument at issue did not have a cap or license number on it, nor was there any evidence of cap removal by defacing or damage. Hence, the second criteria, whether the monument had been disturbed or moved came into play. To confuse the issue, the field notes provided to candidates during the exam did not indicate whether the monument had been disturbed or removed. The third criteria required use of public records to prove historical sequence. The original recorded plat given to the candidates contained a description of a monument. The monument at issue was not in agreement with the final plat, adding further evidence that it did not follow the same standards of care as the original survey and was not likely a part of that survey and was not the original monument for this lot. Petitioner concluded on his examination for item 3 that the monument at issue was the original monument for this lot, an incorrect answer. Items 4 and 6 on the exam required Petitioner to supply the direction of a curve. Petitioner was required to give a minimum of three elements to describe the curve: the radius, the central angle, and the arc distance. Petitioner’s survey on the examination did not provide the chord and chord bearing or any determination of the direction of the curve for items 4 and 6. Item 7 required Petitioner to offset a fence by three-tenths of a foot in order to determine the encroachment area for purchase by an adjacent property owner. To complete this task, Petitioner was to determine the end points of the fence. The dimensions of the fence were to be shown on Petitioner's exam drawing. Petitioner’s answer for item 7 omits the extent of the encroachment entirely. Item 9 requires the candidate to show the found corners on Lot 5. Petitioner’s answer for item 9 incorrectly shows a concrete monument as the southwest corner of Lot 5. Item 13 requires the candidate to calculate the point of beginning tie for a description of Parcel "A." The correct answer for the point of beginning tie is N 71? 20’ 14” E. Petitioner’s answer for item 13 incorrectly shows the point of beginning tie as N 71? 20’ 14” W. Item 14 requires the candidate to identify and provide a description for the property boundary with parcels adjoining Parcel "A." Petitioner’s answer to Item 14 did not provide a description for the second "call" or adjoining boundary along the south side of parcel "A" and did not identify the curve as either the right of way or the lot boundary.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Bureau of Testing enter a Final Order confirming Petitioner’s score on the examination and dismissing Petitioner’s challenge. DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 4th day of April, 2001. COPIES FURNISHED: Leonidas B. Sears, III 256 Clarkdell Drive Stockbridge, Georgia 30281 Luke Sherlock, Legal Intern Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
The Issue Whether Respondent, Peter W. Newton, violated Pinellas County School Board Policies 8.25(1)(k), (v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and, if so, what discipline should be imposed by Petitioner, Pinellas County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a teacher of emotionally handicapped third graders at Skycrest Elementary School and has been employed by Petitioner as a teacher of emotionally handicapped children for six years. Petitioner assesses student and instructional performance utilizing the Pinellas Instructional Assessment Portfolio which consists of two tests: the Parallel Reading- Florida Comprehensive Assessment Test and the Parallel Math- Florida Comprehensive Assessment Test. These tests test students on the Sunshine State Standards which are the Florida Department of Education Standards for student achievement in Florida public schools. These tests are given three times during each school year. Emotionally handicapped students are required to take the Parallel Reading-Florida Comprehensive Assessment Test and the Parallel Math-Florida Comprehensive Assessment Test. Published rules govern teacher conduct in administering these tests. Teachers can only make general statements of encouragement to students. A teacher cannot read any portion of the tests to the students nor can a teacher provide input or comment on a student's answers or failure to answer. The Florida Comprehensive Assessment Test is a state- wide assessment test given to particular grades annually. The Florida Department of Education has mandated that third grade students achieve a passing score on the Florida Comprehensive Assessment Test be allowed to progress into the fourth grade. It is suggested that, in addition to the student and instructional assessment function, the district-wide Parallel Reading-Florida Comprehensive Assessment and Parallel Math- Florida Comprehensive Assessment Tests prepare students for the state-wide Florida Comprehensive Assessment Test. Respondent acknowledged understanding the published rules prohibiting providing assistance to his students while they took the Parallel Reading-Florida Comprehensive Assessment Test. He also acknowledged assisting his students during the December 2002 test in ways prohibited by those same rules. Two full school days are dedicated to each portion of the test. Over the course of the test week, Respondent gave prohibited assistance to each of his nine emotionally handicapped students. Some of Respondent's students were apparently overwhelmed by the test and did not make a sincere effort. After examining their test booklets, he encouraged these students to go back and to continue trying. He examined answers to multiple-choice questions and sent students back to work harder on an answer, indicating by inference that the given answer to a particular question was incorrect. He read words and phrases to students, sounded out words, and pointed out sections of the text in which an answer could be found. While it does not appear that Respondent actually gave any student the correct answer to a question, he certainly directed students to answers. Respondent acknowledged the inappropriateness of his conduct but offered the excuse that he was trying to give his students the confidence of believing in themselves, that they could make passing scores on the Florida Comprehensive Assessment Test and advance to the fourth grade. Respondent's admittedly inappropriate conduct does not appear to be motivated by anything other than a misguided attempt to help his students by instilling the confidence that would necessarily result from the belief that they had done well on the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and being mindful that Petitioner, as stated in its Policy 8.25, Disciplinary Guidelines for Employees, "follows a system of progressive discipline," and giving full consideration to the apparent misguided motivation of Respondent, it is RECOMMENDED that Petitioner reprimand Respondent for his conduct and suspend him without pay from February 25, 2003, through the end of the 2002-2003 school year. DONE AND ENTERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536
Findings Of Fact At all times material hereto, respondent, Marion C. Strange, held Florida teacher's certificate No. 296394, covering the areas of Elementary Education, Mental Retardation, and Specific Learning Disabilities. Since at least 1979, she has been employed by the citrus County School Board as a teacher of exceptional students at Crystal River High School. Her teaching duties included keeping complete, current and accurate records on her exceptional students. These record keeping duties are required of the Citrus County School System by federal and state authorities and are necessary for the school system to remain eligible for federal and state funds, which pay the costs of educating exceptional students. Exceptional students are defined by Section 228.041(18), Florida Statutes, as students who have been classified under regulations of the state board of education as unsuited for enrollment in regular classes in public schools or who are unable to be adequately educated in the public schools without the provision of special classes, instruction, facilities or related services. The education of exceptional students is strictly regulated by federal, state and local school board laws and regulations. Exceptional students are taught differently than students in regular public school classes. A basic element in the education of exceptional students is the preparation and maintenance of an Individual Education Plan (IEP) for each exceptional student. IEP's are reviewed on an annual basis and are considered the backbone of the special education process. Respondent, as an exceptional education teacher, was responsible for maintaining an IEP for each of her students. An IEP is necessary to evaluate the students' educational level, to establish short and long-term educational objectives for the student, to develop alternative ways to accomplish the objectives, to provide a systematic method for implementing the objectives, to record the progress of the plan and to establish a means for the school administration to review and control the education of the student. The proper preparation and maintenance of IEP's is a basic responsibility of the special education teacher. Critical to the preparation and maintenance of IEP's is the annual IEP review conference. Under Citrus County School Board regulations and policy, the annual review conference takes place at a meeting where school professionals, with varied areas of expertise, confer, evaluate the student's progress, make recommendations, and decide on the appropriate instructional program for the student. It is a multi-disciplinary "team" approach to managing the student's education program. The annual IEP review conference is mandatory. Failure to hold the conference is a violation of federal, state, and School Board rules and policies; deprives the child of the educational assistance to which he or she is entitled under law; and jeopardizes continued federal and state funding of the School Board's exceptional education program. Respondent was repeatedly instructed, as were all other teachers of exceptional students, that every IEP must be reviewed at least once a year through an IEP review conference. The School Board's Operations Manual requires the following persons to attend and participate in the annual review conference: the exceptional education teacher, a school psychologist, and a parent. At Crystal River High School, the psychologist also acted as the LEA representative, the designated representative of the school board. The Operations Manual states that the following additional people may participate in the annual conference: a guidance counselor, the mainstream classroom teacher, the principal, the student, other individuals invited by the parent, or other supportive personnel. Although not required by the Operations Manual, at Crystal River High School the mainstream teacher and guidance counselor were expected to participate in the annual review conference. The exceptional education teacher is responsible for assuring that the annual IEP review conference is held and documented in the student's IEP records. The exceptional education teacher schedules the conference, invites the required people, and records it. As a means of documenting that the required conference took place, the School Board requires that participants in the conference sign the IEP's. The requirement that attendees sign the appropriate IEP is a requirement made explicit by the Operations Manual, copies of which are given to each teacher, and by instructions at annual training sessions. Exceptional education teachers, including respondent, are well aware of this requirement. Beginning in June, 1980, and continuing through 1983, respondent was frequently cited for record keeping violations. Her supervisor repeatedly asked her to correct numerous errors and omissions in her students' IEP's. In June, 1980, Neil S. Weiss, Coordinator of Exceptional Students Programs for the Citrus County School Board, reviewed respondent's student IEP records. He found discrepancies and sent her a memorandum, dated June 6, 1980, in which he directed her attention to the Operations Manual and correct procedures to follow. On September 23, 1981, Mr. Weiss again reviewed respondent's IEP records, examining, in depth, the records of six students. He found at least five serious problems with those records and discussed them with respondent. On March 3, 1982, Mr. Weiss again reviewed respondent's records and found incomplete IEP forms. Disturbed by her continued record keeping deficiencies, Mr. Weiss wrote a letter, dated March 5, 1982, identifying the errors, explaining the seriousness of her failure to keep adequate records, and offering assistance. He considered this to be a letter of reprimand and treated it as such; it was made a part of her personnel file. On December 10, 1982, Mr. Weiss visited respondent's classroom and, once again, reviewed her exceptional students' folders. After finding substantial problems in more than half of her files, he discussed the matter with her and wrote her a letter, dated December 22, 1982, expressing concern. In his experience, her chronic record keeping failures were unprecedented. Never before had he experienced similar problems with a special education teacher in the Citrus County school system. In his December letter to respondent, Mr. Weiss advised her that her records were deficient and violated state and county rules and procedures. He noted that many of her IEP's had expired, and offered her the in-service training assistance of Patricia Stayments, a former teaching principal who was employed by the School board as a training consultant. He concluded the letter with an explicit warning: "If deficiencies in this area are not corrected by you by April 1, 1983 I may have to recommend that your teaching contract be returned from continuing to annual status." (Petitioners' Exhibit No. 6) This was the first time he had given her a specific deadline for bringing her records into compliance. In January, 1983, at the request of Mr. Weiss, Ms. Stayments approached respondent and offered her assistance. Respondent initially declined the offer but later changed her mind and sought her assistance. Their first meeting took place on February 24, 1983. At that time Ms. Stayments reviewed 27 of respondent's files and found substantial problems in 19 of them. Ms. Stayment documented these deficiencies, in detail, by making handwritten notes. (Petitioners' Exhibit No. 16) The files of numerous special education students either lacked an IEP annual review form, or, if such a form existed, lacked the required signatures of participants. (Petitioners' Exhibit No. 16) At that meeting, and in subsequent meetings on March 1, 2, and 24, 1983, Ms. Stayments discussed these deficiencies with respondent. At their final meeting on March 24, 1983, it appeared to Ms. Stayments that, except for four student folders, respondent had brought her records into compliance. She reported the progress to Mr. Weiss. She failed, however, to detect several discrepancies. Several signatures of annual IEP conference participants, previously noted as missing, were now included on "corrected records," but were back-dated to a time prior to Ms. Stayments' initial meeting with respondent. The previously imposed deadline for bringing respondent's records into compliance was April 1, 1983. On April 11, 1983, Mr. Weiss reviewed the IEP files of Marion Strange to determine compliance. At first, the records appeared to be acceptable. He then noticed that, on one IEP, the signature of Ann Cummins, a school psychologist, was misspelled "Cummings." (Ms. Cummins, had been the LEA representative at the Crystal River High School for the past 4 years. She was the designated representative of the School Board administration at IEP annual conferences.) Mr. Weiss then found other IEP's that had Ms. Cummins' signature misspelled. He then showed the misspelled signatures to Ms. Cummins, who verified that the signatures were false. Mr. Weiss then examined more closely the other IEP's and, after investigation, found numerous instances where signatures of professional personnel were forged, giving the false impression that the records were complete, that the IEP annual conferences were held and attended as required, and that the students were being educated in accordance with local, state, and federal requirements. The forgeries are described below. Respondent's IEP records contain the false signature of Ms. Cummins, as the LEA representative on 14 IEP annual review forms. The signatures were unauthorized. In fact, on the dates when many of the IEP annual conferences supposedly took place, Ms. Cummins was not at Crystal River High School. Many of the signatures were misspelled, "Cummings." (Respondent had earlier sent a routine letter to students' parents in which she made the same mistake in spelling Ms. Cummins' name.) The false signatures were affixed during 1982 and 1983. Several of the signatures were affixed between February 24, 1983, and April 11, 1983, for the apparent purpose of satisfying Ms. Stayments' February 24, 1983, criticism of unsigned or missing IEP review forms. Respondent's IEP annual review records also contain the false and unauthorized signature of George Moonschiene, a math teacher, on the IEP records of John Dubois, one of her exceptional education students. The false signatures indicated that Mr. Moonschiene had attended an annual IEP review conference concerning this student on October 19, 1982. He had not. On February 24, 1983, Ms. Stayments had complained to respondent that this particular student's IEP form had no signatures. By April 11, 1983, the form contained the unauthorized and forged signature of Mr. Moonschiene. Respondent's IEP records also contain the false and unauthorized signature of Gerald Schuman, an English teacher, on the IEP review forms of at least four exceptional education students: James Morrow, Debra Hollis, Greg Burress, and Richard Schaefer. The false signatures indicated that Mr. Schuman, as a mainstream teacher, attended IEP review meetings on these students. In fact, these were not his students and he did not attend any IEP review meetings concerning them. On February 24, 1983, Ms. Stayments had pointed out to respondent deficiencies in the IEP records of each of these students. Respondent's IEP records also contain the false and unauthorized signature of Linda Alexander, a guidance counselor at Crystal River who was expected to participate in IEP annual reviews. Her signature was forged on the IEP review forms for at least five exceptional education students: Debra Hollis, John DuBois, David Lenhard, James Marrow and Ronald Parker. The forged signature indicated that she had attended annual IEP review meetings on these students; she had not. At the February 24, 1983, meeting with respondent, Ms. Stayments pointed out deficiencies in the IEP records of four of these five students. The deficiencies in three of the forms involved missing signatures. John Dubois' IEP review record had no signatures. At least in his case, the forged signature was added between February 24, 1983, and April 11, 1983. Respondent's IEP annual review records for Doran Mulder also contain the forged and unauthorized signature of his parent, Calvin Mulder. The forged signature falsely indicates that Mr. Mulder attended his son's IEP annual review. A handwriting analyst employed by the Florida Department of Law Enforcement compared respondent's handwriting with the forged signatures of Ann Cummins, Jerald Schumann, Linda Alexander, and George Moonschiene. His resulting report was inconclusive: There are some similarities between the known writing of Marion F. [sic] Strange (K-1 thru K-21) and portions of the questioned signatures in the names of "Ann S. Cummings" and "Linda Alexander" on the above mentioned exhibits; however, there are differences present which cannot be reconciled on the basis of the material at hand. Therefore, no definite opinion can be reached with respect to whether or not Marion F. [sic] Strange (K-1 thru K-21) executed any of the questioned signatures on Exhibits Q-1 through Q-21. (Respondent's Exhibit No. 3) The evidence forcefully, and convincingly, supports the inference, now drawn, that respondent either alone or in combination with another--forged the signatures of Ann Cummins, Jerald Schumann, Linda Alexander, George Moonschiene and Calvin Mulder on the IEP annual review forms described above. She forged these signatures to make it appear that these persons had participated in annual IEP review meetings, when they had not; and that the students involved had received IEP reviews in accordance with local, state, and federal law, which they did not. She intended to deceive her supervisors into believing that she was conducting IEP reviews and keeping IEP review forms, as required. These inferences are based on circumstantial evidence which is compelling. No other theory or hypothesis has been posited which is plausible, or even rational. The falsified forms were in respondent's control and it was her duty to see that they were complete and accurate. It was also her duty to arrange for and convene the annual IEP review meetings for her exceptional education students. Her tenure and, conceivable, even her job were in jeopardy because of her seemingly chronic inability to comply with IEP annual review requirements, including record keeping and documentation. She had been formally reprimanded, and placed on a deadline for bringing her records into compliance. As of February 24, 1983, her records were replete with error and omissions; the deadline for compliance was fast approaching, little more than a month away. Under the pressure of these events, she had not only the opportunity but a clear motive to "correct" her records by forging, either alone or in concert with another, the required signatures. Many of the forged signatures were added to the documents between February 24, 1983, and April 11, 1983, when they were discovered by Mr. Weiss. There is no evidence that anyone, other than respondent, had anything to gain from falsifying the records in question. By forging signatures and falsifying important student records, respondent breached the trust which her employer, her students and their parents place din her as a school teacher. She misled her supervisors and deprived some exceptional students of the annual IEP review to which they were lawfully entitled. To this extent, her students were adversely affected by her actions. Her integrity and honesty are now in doubt; her supervisor has lost confidence in her. Her effectiveness as an employee of the School Board has been seriously reduced. She is no longer able to serve effectively as an employee of the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's continuing contract with the School Board of Citrus County be terminated by the School Board; and That her Florida teacher's certificate No. 296394, be permanently revoked by the Education Practices Commission. DONE and ORDERED this 20th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Wilson Jerry Foster, Esq. Suite 616 Lewis State Bank Bldg. Tallahassee, Florida 32301 Richard S. Fitzpatrick, Esq. 213 N. Apopka Avenue Inverness, Florida 32650 Philip J. Padovano, Esq. Post Office Box 873 Tallahassee, Florida 32302 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald Griesheimer, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Roger Weaver, Superintendent School Board of Citrus County 1507 W. Main Street Inverness, Florida 32650 ================================================================= AGENCY FINAL ORDER ================================================================= RALPH D. TURLINGTON, as Commissioner of Education Petitioner, vs. CASE NO. 83-2889 MARION C. STRANGE, Respondent. /
Findings Of Fact Respondent is a tenured language arts teacher within the Duval County School District of approximately 21 years service, 17 of those years as a senior high school teacher. At times relevant to this inquiry, the Respondent was a language arts teacher at the senior high school level in the Duval County School District. As such, she was responsible for carrying out the requirements of the Jack Gordon writing program set forth in Section 236.1223 Florida Statutes. The purpose of the Jack Gordon writing program is expressed at Sections 236.1223(2), 3 (a) and (4), Florida Statutes, where it states: Any school district which establishes a separate course for teaching writing skills, or which demonstrates that teaching writing skills is a primary emphasis in English courses included in its existing curriculum and required as a prerequisite for graduation, may receive categorical funds as provided in this section in addition to the funds it receives from the Florida Education Finance Program. To be eligible to receive funds under this section, a school district shall certify to the Department of Education: That instruction in writing skills is provided in classes which contain no more than 28 students per teacher and that no teacher who teaches writing skills as part of the instruction in an English class that is a class required by the school district as a prerequisite for graduation teaches more than 100 students per day; however, the Commissioner of Education may approve alternative staffing plans, on an annual basis, submitted by a local district for those schools wherein there is a demonstrated lack of classroom space or a showing is made that the total instructional program requires teaching to instruct classes in English and another subject or subjects; * * * The Commissioner of Education shall establish criteria for determining whether the teaching of writing skills is a primary emphasis in an existing English course which a school district has required to be a prerequisite for graduation. Included in the criteria shall be a requirement that a student in such course write not less than one essay, report, story, or other work product each week of class. Having opted to participate in the Jack Gordon writing program, the Duval County School District has established its own guidelines and expectations of those teachers including Respondent who are responsible for the implementation of the program. Petitioner's Exhibit No. 32 admitted into evidence describes the duties of the Duval teachers who participate in the program. It reiterates the requirement of the one essay, report, story or work product for each week of class found in the statute. It makes it incumbent upon the teacher to design a lesson plan for each of the writing assignments and suggests ideas for those writing assignments. It requires the teacher to evaluate the product in a constructive manner and provide substantial assistance in developing writing confidence. It speaks in terms of a master log of writing assignments kept by the teacher or the requirement for students to keep a log. The system that was employed in this case was one in which the student maintained the writing log. The teacher is expected to keep records of the assigned products and methods of evaluation. The teacher is called upon to retain one student folder developed in the year as well as class papers written during the first quarter and fourth quarter and to be prepared to submit for audit purposes sample student folders and two sets of class papers. Under the category of guidelines more specific discussion is made concerning writing assignments. In addition, Respondent and other language arts teachers involved in the program were expected to ensure that the student logs were maintained reflecting the writing assignments and updated to coincide with the requirement for one writing assignment for each school week. The teachers were to identify the writing assignments in their lesson plans and were called upon to record the grades which the students received on the individual writing assignments in their grade books. Under the circumstances, it is inferred that contemporaneous provision of assignment to the students, preparation of the writing paper by the student, grading of the student paper, placement of the grade on the student log and grade book and placement of the paper in the student folder was anticipated. In this connection at times relevant to the inquiry the Duval County School District used a quarter system with nine weeks in each grading period for a total of 36 weeks. Consequently, 36 writing assignments were to be prepared under the auspices of the program. As identified by Carlotta Ray, Director of Language Arts for the Duval County School Board, and the person responsible for monitoring the Jack Gordon writing program in that system, custom and practice allows the language arts teachers as much as two weeks time beyond the week of an assignment to grade and return the student paper. Beyond that time efforts on the part of the teacher are considered to be out of compliance with the requirements of routine assignments and grading contemplated by the program. Respondent was aware of her obligations as a language arts teacher carrying forth the Jack Gordon writing program. The problems which she encountered in performing those tasks, which will be discussed, were not associated with a lack of understanding of the requirements nor an inability to perform at an acceptable level in carrying out her duties of preparing an assignment, grading an assignment, and the affiliated functions of records keeping by her students and the Respondent. Her difficulties were based upon a failure to perform the duties assigned in the program. In defending her recalcitrance in meeting her responsibilities, Respondent attributes her performance to health problems both mental and physical and to a lack of sensitivity and cooperation by administrators in the school system in helping her to redress her inadequate performance. For reasons that will be described, her performance was gravely below that of what was expected of her in carrying out the Jack Gordon writing program and her attempts to explain these inadequacies are not redeeming. Until the school year 1986-87, Respondent had performed satisfactorily as a language arts teacher. In that school year Respondent was teaching at Ribault Senior High School. On March 13, 1987 Pat Cascone, a resource teacher who was assigned as a program representative for language arts and reading made a spot check of the Jack Gordon writing program student folders at Ribault. Ms. Cascone was accompanied by Ms. Ray as part of the school district's activities in monitoring the Jack Gordon program. On the date in question Ms. Ray had requested that all student folders be placed in a single room to allow Ms. Cascone and Ms. Ray to examine them. All language arts teachers complied, save two. One of the teachers who did not comply was the Respondent. When the principal at Ribault, James Williams, Jr., learned that the Respondent had not provided the student folders for examination by Ms. Cascone and Ms. Ray, he inquired of the Respondent where the folders might be found. Upon learning that the folders were at home, according to Respondent, he told the Respondent to go home and retrieve those folders. Inexplicably Respondent refused to honor his instruction. She would have had ample time to go to her home and return with the folders before Ms. Ray and Ms. Cascone departed the school. Rather than provide the folders for examination, Respondent went to the room where Ms. Ray and Ms. Cascone were checking the student folders and made some attempt at explaining herself. At this time she became very emotional and made some remarks concerning incompetency in her personal and professional life which she was trying to correct. She wrote a note, a copy of which may be found as Petitioner's Exhibit No. 33, describing what she said was incompetency in her personal life as well as "here", taken to mean at school. In the note she talked about trying very hard to correct "all" and the idea that she would have things ready for the auditors. In the final analysis, Respondent did not present any information concerning students within the Jack Gordon writing program for whom she was responsible, thereby denying Ms. Ray and Ms. Cascone the ability to ascertain the progress of those students and Respondent's compliance with the requirements of the program. Respondent's explanation concerning her situation at about the time that the March 13, 1987 spot check of the Jack Gordon writing materials was made at Ribault High School does not suffice as an excuse for her noncompliance with the requests of the district officials who monitor the program and the instructions of her principal to bring those materials to the room were the inspection was taking place. Respondent also missed a meeting on March 16, 1987, called to discuss the problems that had been encountered at the time of the March 13, 1987 spot check performed by Ms. Cascone and Ms. Ray concerning the program. As a consequence of the problems that were encountered on March 13, 1987, Respondent received diminished scores on her annual evaluation as compared with the two prior years. Nonetheless, she was rated as satisfactory in the evaluation performed on March 17, 1987. A comparison of evaluations for March, 1985; March, 1986 and March, 1987 may be made by examining Petitioner's Exhibit Nos. 34, 35 and 37 respectively. The former two evaluations depicted satisfactory in each category whereas the latter evaluation had four deficiency areas. In presenting the evaluation of March 17, 1987, Mr. Williams reminded Respondent of the serious nature of the Jack Gordon writing program and the need to comply with all applicable rules and regulations. The problems experienced in the annual evaluation of March 17, 1987, constituted the first occasion at which Respondent had been criticized in her annual evaluation in any category. Within the school year 1986-87, Respondent acknowledged that all student work may not have been in the sequence that was contemplated by the Jack Gordon Program; however, she testified that the materials had been caught up and submitted by the end of that year. On a related topic, she acknowledged that contrary to school policy she had taken the Jack Gordon student folders home. Respondent's teaching assignment for the school year 1987-88 was to Ribault Senior High as a language arts teacher. On November 12, 1987, Ms. Ray did a further spot check at Ribault High School. She discovered that the same two teachers who had had problems before in the March 13, 1987 evaluation presented problems on this occasion. Those persons were the Respondent and Elaine Dealing. Unlike Respondent, Ms. Dealing had an excuse for noncompliance in that she had been on leave for the quarter and the failure to meet requirements of the Jack Gordon Program were attributable to one or more substitute teachers taking over her classes. As seen in Respondent's Exhibit No. 1, a monitoring form used by Ms. Ray, Respondent did not present any folders for examination. The only items which were available were eight personal letters as part of a writing assignment. The grading which was done by Respondent concerning those papers was sufficient. The unavailability of folders was not acceptable and Ms. Ray commented on that problem reminding the Respondent to make completion of those folders a priority. Respondent in her testimony says that when she was made aware of the request by Ms. Ray to audit Jack Gordon program materials, all she had available to her, that she could put her hands on real fast, were the personal letters. She turned these materials over to a Ms. McAfee to present to Ms. Ray. No contact was made between the Respondent and Ms. Ray on the occasion of this inspection. Mr. Williams memorialized the November 12, 1987 incident with Ms. Ray through a memorandum of November 17, 1987 directed to Respondent and signed as received by Respondent. A copy of that memorandum may be found as Petitioner's Exhibit No. 2. It comments to the Respondent that she did not have any folders available on November 12, 1987 and reminds her that this was the second straight year in which she was not in compliance with Jack Gordon requirements. The memorandum refers to the idea that further noncompliance would be reflected in the annual evaluation. On January 29, 1988, Mr. Williams wrote the Respondent and advised her of his intentions to rate her less than satisfactory in the upcoming March 15, 1988 annual evaluation. The reason for this decision was principally related to Respondent's problems in the Jack Gordon writing program. Contrary to the requirements of maintaining the Jack Gordon writing program student folders at school, between January 29, 1988 and the date of the annual evaluation of that year, on any occasion of a visit by Mr. Williams to examine the folders, the folders were not present at school. Mr. Williams attributed the failure to maintain the folders at school as a matter of personal stubbornness on the part of the Respondent. Having considered the explanations by Respondent at hearing, the failure to maintain the folders at school as required certainly can be characterized as stubbornness. Consequently on March 21, 1988, Respondent received an unsatisfactory annual evaluation form Mr. Williams as may be seen in a copy of that evaluation, Petitioner's Exhibit No. 39. Respondent was rated less than satisfactory because of problems with her compliance with the Jack Gordon writing program. Respondent offered no specific contest to the finding of unsatisfactory in her 1988 evaluation. Respondent's suggestion concerning the 1987-88 school year in which she says that her Jack Gordon writing program work was current through the end of that school year is not accepted. Following the finding of unsatisfactory performance in March, 1988, Mr. Williams did not see any of the student folders of Respondent. He had required that all Jack Gordon teachers turn in those folders as part of their year end checkout from school. Respondent did not submit her folders at the time of checkout and had her salary payment delayed as a consequence. Contrary to policy she had taken those folders home with her at the end of the school year and did not turn them in until late July or early August, much beyond the end of the 1987-88 school year. Although Respondent did not request reassignment, she was transferred to Andrew Jackson High School for the school year 1988-89. Following that assignment she did not contest the decision of the school board to place her in that position. Her principal for the 1988-89 school year was Jack Shanklin. He was aware of the prior less than satisfactory rating Respondent had received in the school year 1987-88 related to noncompliance with the requirements of the Jack Gordon writing program. Mr. Shanklin met with the Respondent in preplanning at the beginning of that school year and discussed those prior circumstances and offered help to her if she felt it was needed. In reply, Respondent stated that she understood what the problem was, without specifically mentioning what she meant by that remark and indicated that she would not allow it to happen again. Mr. Shanklin reminded Respondent that if she would comply with the Jack Gordon program requirements she would not have a problem in getting along with Mr. Shanklin. Respondent gave her further assurance to Mr. Shanklin that she was going to comply with that program and would let him know if she was having any difficulties and that she just wanted to get a fresh start. To monitor Respondent's performance Mr. Shanklin appointed Barbara Short, Assistant Principal for Curriculum at Andrew Jackson High School, to act as supervisor of the Respondent related to compliance with the Jack Gordon writing program. In November, 1988, Ms. Ray made a limited check of Jack Gordon student folders at Andrew Jackson High School. This representative sampling included five folders from the Respondent and they were in compliance with requirements. Ms. Ray made Mr. Shanklin aware that the folders submitted were satisfactory and how pleased she was with Respondent's improvement compared to previous surveys. Mr. Shanklin followed this up by making Respondent aware of his pleasure with her apparent performance. As is contemplated with a teacher who has been found unsatisfactory in a previous academic year, a midyear evaluation was made in December, 1988. In preparing this evaluation Mr. Shanklin observed Respondent's classroom performance as well as being aware of the apparent compliance with the Jack Gordon writing program as evidenced in the November, 1988 spot check by Ms. Ray. Respondent was found to be progressing satisfactorily. The school district scheduled and performed a full audit of the Jack Gordon writing program at Andrew Jackson High School on February 21, 1989. Respondent had been made aware of the pending audit approximately a week before. Leading up to the audit Respondent had told Ms. Short, Ms. Cascone and Mark Nichols, the Language Arts Department Chairman at Andrew Jackson High School, that she would be prepared for the audit. At a Saturday morning meeting with Mr. Nichols three days before the scheduled audit Respondent assured him that she would be ready. Prior to the audit Respondent had never told anyone that she was having any difficulty getting ready for the audit or that she needed any assistance in preparing for the audit or had experienced any difficulty with compliance with the Jack Gordon writing program since coming to her new school. On the day of the audit Respondent's folders were not ready. Respondent acknowledges that her folders were out of compliance at that time. She did not present her folders to the auditor at the designated time and place. When Ms. Short inquired of Respondent at Respondent's room concerning the student folders Respondent told her that she only needed 10 to 15 minutes to have them ready for the auditors. Respondent then went to the auditors without her folders and as she describes it, "fell apart with them." On the day following the audit, Mr. Shanklin met with the Respondent and asked her if there was a reason why she was unable to provide the student folders to the auditors and why she was not ready for the audit, especially since she had told other personnel prior to the audit that she would be ready. Respondent had no explanation. She did say that she had her Jack Gordon writing program assignments at home. Mr. Shanklin advised her to bring them to school on the following day. On February 23, 1989, Respondent produced for her principal a disorganized stack of classroom papers for her five periods of Jack Gordon writing program classes. The detailed examination of these materials made by Ms. Short revealed that with the exception of one class period that had been reviewed in November, 1988 by Ms. Ray, the Respondent's Jack Gordon materials were not in compliance with requirements. Some of the class assignments in the Jack Gordon writing program had not been graded since the beginning of the school year. Respondent acknowledges that between November 1988 and February 1989 a number of student folders were at her home on a rotating basis. Again this is contrary to school district policy. While Respondent and others have identified the fact that a certain amount of time outside the school day was necessary to comply with the dictates of the Jack Gordon writing program, this did not justify carrying the student folders home. The folders could have been left at school and the individual papers graded at home and returned to the folders. Having been made aware of the extent of the problems, Mr. Shanklin gave Respondent until April 5, 1989, to bring her classes into compliance with the Jack Gordon writing program requirements. He placed her on a specific schedule for updating her folders as described in Petitioner's Exhibit No. 9 which is a memorandum to Ms. Thompson concerning the schedule. In addition, he extended the date of her annual evaluation until April 14, 1989 and advised her that if she failed to adhere to the compliance schedule which he was establishing he would find her to be unsatisfactory in the annual evaluation. Ms. Short was assigned to follow Respondent's progress in carrying out the requirements for gaining compliance. In an attempt to assist the Respondent in bringing her work into compliance, she was released from her cafeteria duty in one of the time blocks in the daily schedule. This was an opportunity unique to the Respondent compared to other teachers. Under the schedule for achieving compliance with the updates contemplated by Mr. Shanklin, Respondent was to have concluded those items related to her first period class on or before March 3, 1989. Her success in that endeavor is commented on in the Petitioner's Exhibit No. 12, a memorandum from Ms. Short to Mr. Shanklin. Leading into those comments, Ms. Short established that in her review of the Respondent's materials it was discovered that although the school year was in its third quarter at the time of the February 21, 1989 audit, Respondent had not graded any first period assignments since the end of the first quarter. Between February 23, 1989 and March 3, 1989, Respondent did catch up with some of the materials; however, folders for Wanda Massey and Katrina McClain were empty and no work had been graded for the year for those students and no student logs maintained. Sharon Batson and Jack Morris had been given credit in the grade book for completing two assignments, although their folders were devoid of any evidence of that. Nothing had been graded for 10 of the students in that class for the third nine weeks. For those 10 students, out of the 24 assigned to the class, at least four assignments should have been graded in the third quarter, even taking into account a two week leeway for grading as referred to before by Ms. Ray and as described in the facts. Concerning the second period class of the Jack Gordon Program, 14 students were enrolled in the program and Respondent had until March 10, 1989 to upgrade the work. Having considered the criticisms directed to Respondent's attempt at compliance with Mr. Shanklin's deadline for period two, as mentioned in Petitioner's Exhibit No. 14, a memorandum from Ms. Short to Mr. Shanklin, in the context of Respondent's explanations, only the remark concerning the fact that one student had two assignments missing from his folder is found to be an item for which Respondent is answerable. As contemplated by the schedule, Respondent was to have updated materials for her third period class on or before March 17, 1989. She was unable to turn in those materials on March 17, 1989, because of automobile problems and the work was subsequently submitted on March 20, 1989. This allowed the Respondent an additional opportunity over the intervening weekend to do work on that class. Fifteen students were enrolled in that class and none of the folders were found out of compliance when submitted on March 20, 1989. The schedule called for submission of information concerning the sixth period by March 23, 1989. This was a class in which 26 students were enrolled at the time of the attempt at remediation of Respondent's performance. At the due date this class continued to have a substantial number of problems concerning Respondent's performance in the Jack Gordon writing program. Respondent had not done a great deal between February 21, 1989 and March 23, 1989 to catch this class up. Related to the student Joseph Adams, no assignments or log could be found for his work in the second semester. For the student John Arwood the grade book showed credits given for assignment no. 17, but the assignment was missing from the folder and no assignments or log could be found for the second semester. For the students Anthony Barreras, Rollins Burk and Sherria Gadsden the folders contained graded work in the first semester; however, the grades were not posted in the grade book and no assignments or logs were found for the second semester. The student Denise Coakley was shown as being enrolled in the third nine weeks roll; however, no assignments or log were available for this student. Where the student Michelle Cook is shown in Petitioner's Exhibit No. 17, the report from Ms. Short to Mr. Shanklin concerning compliance with the deadlines for updating the six period class, that reference should be to Michael Cook. That student did not have grades posted for the first semester. The student Kelly Cone appeared in the second nine weeks roll; however, no folder or grades were posted in that period nor was any information found concerning this student in the second semester. Concerning the students Zachray Evans and Diana Stallworth, there was work from the first semester in the folders but no grades had been posted. For the students Michael Howard, Jerris Johnson, and Jason Kent, the student folders were empty, no grades were posted and no logs were found. For the student Arquilla McCoy, there was no student log or assignments for the first semester. For the student Cheree Odom, whom Ms. Short said was on the roll for the entire year, nothing had been placed in her folder for the first semester. Respondent explained that the first three or four weeks of the first semester Cheree Odom had been in the wrong class; however, this does not explain the lack of entries beyond that first three or four weeks. Respondent had until April 5, 1989 to bring her work into compliance related to the Jack Gordon Program for the seventh period. Petitioner's Exhibit No. 18 is a report from Ms. Short to Mr. Shanklin concerning Respondent's success in that attempt. Twenty students were enrolled in period seven at the time of the memorandum. For the students Roger Bearden, Katra Davis, Bo Browning, Micheal Liddell and Ted Myer there was no log or work in the folders for the second semester. For the student Richard Jenkins there was no log in the folder and he was missing 12 assignments; however, Respondent indicated that the student was often suspended. The students Charlie Johnson and Ron Morris had nothing in their folders for the second semester and were missing one or more assignments related to the first semester. Sonia Price, James O'Quinn, Charles Toliver, Erskin Townsend, Douglas Tyus and Anthony Wade had no assignments for one or more of the required assignments. Tonya Simmons was missing a student log for her assignments. Athena Snipes and Sabrina Souls had no work in their folders for the first semester, although grades were posted in the grade book in that semester. Having concluded the check of the individual class periods, Ms. Short made a further overall assessment of Respondent's compliance with the requirement to keep current with the work in the Jack Gordon Program beyond the deadlines imposed for checking the individual classrooms. A memorandum of her findings concerning this further evaluation may be found as Petitioner's Exhibit No. 20 which was prepared on April 12, 1989 and submitted from Ms. Short to Mr. Shanklin. What it finds is that Respondent, associated with the first period class after the folders had been checked on March 3, 1989, had not kept them current beyond that date. As of April 12, 1989, none of Respondent's first period Jack Gordon folders contained any assignment or log entry subsequent to writing assignment no. 24. Effective April 12, 1989, assignment 29 should have already been given and the next day assignment no. 30 would have been given. Using the two-week grace period identified by Ms. Ray, all activities in the program assignments should have been completed through assignment no. 27. In a similar vein, Respondent's second period folders which were checked a week later than the first period folders contain assignments up through no. 25 and the third and sixth periods had assignments up through no. 26 while the seventh period had assignments through no. 27. Therefore, period seven is the only one of the class periods which could said to be in compliance. In the memorandum which is Petitioner's Exhibit No. 20, Ms. Short noted that in reference to earlier reports made to Mr. Shanklin concerning individual class periods some of the folders still remained incomplete regarding logs and missing assignments. Respondent's testimony, to the effect that the observations in Petitioner's Exhibit No. 20 are questionable because Respondent was unable to place information into the folders due to Ms. Short's comment that the folders could not be touched unless Mr. Shanklin gave his permission, is not credited. Petitioner's Exhibit No. 20 describes the fact that between April 5, 1989 and April 12, 1989 Respondent had not taken advantage of the use of all folders in her free periods at school to do work in the folders. As evidenced in a memorandum from Respondent to Ms. Short a request was made to work on the folders at school on the weekend following April 14, 1989. This request was denied because of the lack of security control at the school over the weekend. On April 20, 1989, Mr. Shanklin wrote to the Respondent to advise her that the folders which had been maintained in Ms. Short's office during the monitoring activities following the February 23, 1989 schedule of compliance directed by Mr. Shanklin could be removed from Ms. Short's office during the day. This did not allow the Respondent to take the folders home over night or on the weekend. The memorandum advised the Respondent that, as had been case in the entire episode, Respondent was at liberty to take home sets of assignments for purposes of grading. Nothing in any of the arrangements made by Mr. Shanklin following his decision to order specific compliance after February 23, 1989, were so inhibiting that they did not allow Respondent to honor Mr. Shanklin's instructions. In a more general sense, nothing done by any of the administrators in the relevant period of discussion kept the Respondent from performing her duties related to the Jack Gordon writing program. Other teachers were able to comply and Respondent should have been able to do so as well. Petitioner's Exhibit No. 25 is the memorandum of April 20, 1989. It was entered in response to Respondent's request to have the opportunity to take the folders out and work on them. On April 13, 1989, Respondent sent a memorandum to Mr. Shanklin asking that he make arrangements to have Ms. Ray and Ms. Cascone review her Jack Gordon materials. She also requested that Mr. Nichols be in attendance in this review. Mr. Shanklin was unwilling to allow Mr. Nichols to leave his duties to attend a review. He did honor the request to contact Ms. Ray and Ms. Cascone. In this matter, Mr. Shanklin did not encourage the Respondent to have this assessment made by Ms. Ray and Ms. Cascone. In fact, he told Respondent that it would not help and more than likely would be adverse to her position. Respondent persisted in her request. This arrangement came about at a time when the annual evaluation of April 14, 1989 was imminent. Prior to the visit by Ms. Ray and Ms. Cascone Respondent received her annual evaluation of April 14, 1989. A copy may be found as Petitioner's Exhibit No. 41. It was unsatisfactory based upon the problems that had occurred in Respondent's performance related to the Jack Gordon writing program. This was a performance for which she had no reasonable explanation. The evaluation was correct in the portrayal of the unsatisfactory performance. On April 25, 1989, Ms. Ray and Ms. Cascone reviewed the Respondent's Jack Gordon student folders. The review showed that the Respondent's folders were not in compliance with the requirements of that program. At the time of the review assignment no. 31 should have already been given. Allowing the two assignment leeway for compliance, assignment no. 29 should have been completed. Ms. Ray rendered a report to Mr. Shanklin on April 27, 1989 concerning her findings in the evaluation of Respondent's Jack Gordon program materials. A copy of that report may be found as Petitioner's Exhibit No. 26. She found graded student papers through assignment 30 in two periods, assignment 29 in one period and assignment 26 in two periods. She found student logs through April 13, 1989 in one period, through March 17, 1989 in one period, through March 6, 1989 in two periods and through March 2, 1989 in one period. Obviously, Ms. Ray's comment that the folders as of April 25, 1989 should contain a minimum of 31 writing assignments do not take into account the two-week leeway that Ms. Ray identified at hearing. This would also have an affect on her opinion that the student logs should have been updated through April 21, 1989. The actual date of updating which was incumbent upon Respondent was April 7, 1989. This is the most recent date using the two-week leeway. Ms. Ray noted that the written comments that Respondent had provided to the students were thoughtful and in many cases thorough, a further indication that the problems the Respondent had were not related to her lack of understanding of the requirements of the program. In her remarks in the memorandum and in her testimony at hearing Ms. Ray expressed her concern that the lack of timeliness in returning the papers to the students had caused Respondent's comments to lose their intended instructional effectiveness and a concern that the problem with timeliness had possibly led to an alarming number of student folders where assignments were not completed. Ms. Ray also remarked on her concern about the lack of integration of writing assignments into the total program of language arts instruction. All these observations are valid. On May 17, 1989, as reflected in Petitioner's Exhibit No. 27, a copy of a memorandum from Ms. Short to Mr. Shanklin, where Ms. Short observed that Respondent was still not in compliance as exemplified by the fact that in the grade book there were grades posted through assignment no. 32; however, there was no proof that any work had been done. The folders and logs were still in the same state that they had been at the time of the April 25, 1989 inspection by Ms. Ray and Ms. Cascone. The Ray and Cascone inspection and the report of Ms. Short of May 17, 1989, took place on dates succeeding the date upon which Respondent was able to retrieve folders from Ms. Short's office. On May 19, 1989, Mr. Shanklin wrote a memorandum to the Respondent attaching a copy of the May 17, 1989 memorandum from Ms. Short. Mr. Shanklin, through his memorandum, directed the Respondent to make use of her two-hour block of free time in bringing the materials current by May 26, 1989. At the end of this school year as reflected in Respondent's Exhibit No. 1, certain materials were to be turned over from Respondent to Mr. Nichols, her department chairman. These items were select papers from periods one, two or three for the first nine weeks and from period six for the fourth nine weeks, together with one complete student folder. Petitioner's Exhibit No. 45 is a box of materials which Respondent indicates were given to Mr. Nichols in conformance with this requirement. A further indication of this arrangement is found in a note from Ms. Short to Respondent dated June 12, 1989, Petitioner's Exhibit No. 29, which says that all materials not given to Mr. Nichols should be given to Ms. Short. The student folders, devoid of the materials that had been given to Mr. Nichols are said to be found as Petitioner's Exhibit No. 46. Evidence of these latter abridged materials being turned over is found in Petitioner's Exhibit No. 30, indicating that a check was issued by Ms. Hodge, the vice- principal, in return for the receipt of the folders for the various periods. Respondent's Exhibit No. 2 is a further checkout list that shows that Jack Gordon program materials had been turned in as evidenced by the signature of Mr. Nichols. Petitioner's Exhibit No. 45 appears to contain more than what was requested in Respondent's Exhibit No. 1. In addition to the materials that had been submitted to Mr. Nichols and Ms. Short, found in Petitioner's Exhibit Nos. 45 and 46 respectively, there was a folder of ungraded materials, Petitioner's Exhibit No. 44, which Respondent has no explanation for other than a vague reference that someone must have removed them from her control without permission. Upon reflection, it is found that these items were papers which Respondent was responsible for and failed to take appropriate action on. These papers have been compared to the grade books which are part of Petitioner's Composite Exhibit No. 47 and to the materials, Petitioner's Exhibit Nos. 45 and 46. This examination points out the continuing disarray in the materials beyond the point at which Respondent claims to have brought all student folders into compliance. Petitioner's Exhibit No. 44 exemplifies the fact that papers were not graded and no grades were received or the papers were not graded and grades were received. In comparing the papers found within the Petitioner's Exhibit No. 44 to Petitioner's Exhibit Nos. 45, 46 and 47, it also revealed that there were instances of noncompliance forms sometimes signed by the students and sometimes not and dated beyond the appropriate date for the assignment where Petitioner's Exhibit No. 44 demonstrated that the assignments had been carried out. Although there was no obligation by the Respondent to maintain noncompliance forms as a mandatory requirement from the school district, the appearance of the noncompliance forms which is designed to evidence the student's refusal to carry out the assignment when the student has actually completed assignment is an indication of Respondent's confusion if not outright duplicity. The pattern of this series of noncompliance forms containing the assignment number, the name of the assignment and incorrect date, appears to be written by one person with a signature being provided by another person, and in one instance no signature where the form contemplates the student signing his or her refusal to complete the paper. By a June 23, 1989 memorandum, a copy of which is Petitioner's Exhibit No. 31 from Ms. Short to Mr. Shanklin, Respondent remarks about the existence of a folder of ungraded work left with Mr. Nichols which is most likely the folder which is Petitioner's Exhibit No. 44. For Val Custis, a student in period one, Petitioner's Exhibit No. 44 contains ungraded assignments 28, 30, 33, 34 and 35. These papers were dated March 23, 1989; April 13, 1989; May 4, 1989; May 11, 1989 and May 25, 1989 respectively. In Petitioner's Exhibit No. 46, the student folder with log, this student received zeros in the log and the folder had noncompliance forms apparently signed by the student with the dates April 6, 1989 for assignment 28; April 18, 1989 for assignment 30; May 8, 1989 for assignment 33; May 15, 1989 for assignment 34 and May 22, 1989 for assignment 35 written with a different pen than the signature. The expected dates for those assignments respectively were March 23, 1989; April 13, 1989; May 4, 1989; and May 11, 1989 and May 18, 1989. In Petitioner's Composite Exhibit No. 47 the student did not receive a grade in the grade book for these assignments. For the student Heather Allen who was in the first period, Petitioner's Exhibit No. 44 showed assignments being prepared for numbers 33 and 34 dated May 4 and 10, 1989. Those assignments were not graded. In Petitioner's Exhibit No. 47, the grade book, it looks as if certain entries had been made assigning the grade as zero and erased. In Petitioner's Exhibit No. 46 noncompliance forms were shown as having been signed by the student and dated on May 8, 1989 and May 15, 1989 respectively, with the grades of zero being shown in the student log. Joseph Adams, who was in the sixth period class and who had an ungraded assignment 17 found within Petitioner's Exhibit No. 44, received a zero in the grade book, Petitioner's Composite Exhibit No. 47. The expected date of the assignment was December 15, 1988. In Petitioner's Exhibit No. 46 Adams received a zero on his student log and there is a noncompliance form with his signature and a date January 12, 1989. By contrast, Rollins Burks has an ungraded assignment no. 17 in Petitioner's Exhibit No. 44. In the grade book he received the maximum score of 50, Petitioner's Exhibit No. 47. In his folder, Petitioner's Exhibit No. 46, the student log reflects the same grade. The folder contains no other information about this assignment. Anthony Barreras was a student in the sixth period class. He has ungraded assignments no. 17, 32 and 34 found within Petitioner's Exhibit No. 44. They are dated April 26, 1989; June 8, 1989 and June 8, 1989. He received a 50 in the grade book, for assignment no. 17. Within Petitioner's Exhibit No. 46, his folder, his student log shows a grade of 50. There is no other information in the folder about the assignment. Related to assignment 32 he received a 38 in the grade book for a paper which was supposed to have been assigned April 27, 1989, and was shown as being completed June 8, 1989. For this assignment, in Petitioner's Exhibit No. 46, his student log shows that he received a zero and there is a signed noncompliance form with a date of May 1, 1989. For assignment no. 34 there is a zero in the grade book. In Petitioner's Exhibit No. 46, there is a log entry of zero and a noncompliance form signed by the student with a date May 15, 1989. Dee Douberly was a student in the third period class who has an ungraded assignment no. 31 in Petitioner's Exhibit No. 44. The expected date of that assignment was April 20, 1989 and it was prepared on May 25, 1989. Petitioner's Exhibit No. 47, the grade book, does not contain a grade for this assignment. It appears that an entry was made and then erased. In the student log it says that the assignment was turned in, and in the log, which is part of Petitioner's Exhibit No. 45, it shows that the student received 46 out of a maximum of 50 points. The student log contains a noncompliance form which is unlike the other noncompliance forms which have been described in that it does not contain the student's signature. It does reflect a date of April 25, 1989. A review of the log associated with the student Douberly reflects that this student was a solid performer. In addition to the students whose names have been mentioned as having ungraded work in Petitioner's Exhibit No. 44, there are others as well. These examples point out the confusion in this process caused by Respondent's inattention to her duties and the possibility that Respondent was acting fraudulently, all at the expense of the students' opportunity to receive meaningful instruction. Respondent in her testimony acknowledged the effect of a student receiving a zero for work that they had done as having an influence on the grade he or she received. As mentioned, Respondent never explained herself concerning her failures in the Jack Gordon writing program when the administrators in her two schools were attempting to confront these problems. As it turned out, she did not need assistance in having someone explain the methods to be employed in carrying out the program and did not request permission to absent herself from her duties if she believed that she was either physically or mentally unable to continue. At hearing she attempted to justify her inadequate performance by the use of depositions of Mr. Richard A. Fridemann, a clinical social worker, and Dr. David T. Murray, a medical doctor who specializes in internal medicine. Mr. Fridemann identified Respondent's emotional difficulties associated with depression. Having considered his remarks they do not adequately explain nor excuse her performance associated with the Jack Gordon writing program. Likewise, Dr. Murray, who has treated the Respondent for hypothyroid condition, a condition which she has experienced for a considerable length of time, was unable to explain Respondent's inadequate performance associated with the Jack Gordon writing program. While it is clear based upon Dr. Murray's remarks that the hypothyroid condition can impair functioning, the reported period in which Respondent suffered that condition, within the experience of Dr. Murray was September 30, 1986 through November 18, 1986 at which time she was undergoing treatment. From that latter date until May 16, 1989 Respondent had not presented herself to Dr. Murray for treatment concerning the hypothyroid condition. The period November 18, 1986 through May 16, 1989 encompassed the period in which her performance as a teacher was substandard. In this connection Respondent testified that, at the end of the school year 1988-89, medication which she was taking for hypothyroid was controlling that problem. Another health related problem associated with kidney and urinary track infection is not found to have influenced Respondent to the extent that she was unable to perform her duties at critical points in time and to be an excuse for her inadequate performance.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is, recommended that a Final Order be entered which dismisses the Respondent from her employment with the Duval County School Board. RECOMMENDED this 21st day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4131 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-35 are subordinate to facts found. The sub-parts A and B to Paragraph 36 are contrary to facts found. Paragraphs 37-39 are subordinate to facts found. Paragraph 40 is contrary to facts found in the suggestion that the current assignment should be no. 29. Paragraph 41 is contrary to facts found. Paragraph 42 is subordinate to facts found. Paragraph 43 is incorrect in the statement that the date is March 23, 1989 as opposed to February 23, 1989. Paragraph 44 is subordinate to facts found. Paragraph 45 is contrary to facts found. Paragraphs 46-49 are subordinate to facts found. Paragraph 50 is not necessary to the resolution of the dispute. Paragraphs 51-54 are subordinate to facts found. Respondent's Facts Paragraphs 1-6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraph 8 sets out claims made by the Respondent as to her condition and the inability to carry out her duties; however, these explanations are not corroborated by any medical evidence and having considered these contentions by Respondent in the context of the overall case are not accepted. The comments in Paragraph 9 concerning Respondent's medical condition although accepted as correct do not promote a contrary result in the recommended order but excusing Respondent's performance. Paragraph 10 is contrary to facts found. As to Paragraph 11 while it is accepted that Respondent was grief stricken about the death of students and co-workers, the dimensions of this grief as it might explain her performance was not sufficiently identified to form a justification for her performance. As to Paragraph 12 see the explanation related to Paragraph 11. Paragraph 13 is subordinate to facts found. Concerning Paragraph 14 and 15, while Respondent may have experienced problems with Mr. Williams her principal, this does not excuse nor justify her performance in the 1987-88 school year. Paragraph 16 is contrary to facts found. Paragraphs 17 and 18 are subordinate to facts found. As to Paragraph 19, this representation does not indicate that the transfer from Ribault High School to Andrew Jackson High School was inappropriate. As to Paragraph 20, although there may be some possibility of a transfer to a junior high school level where Jack Gordon writing requirements are not required, that topic was not sufficiently developed in this record to allow a recommendation to that affect. On balance, based upon record that was established dismissal as a teacher is the appropriate disposition. As to Paragraph 21, while it is accepted that the Respondent was a traveling teacher, this did not excuse her from carrying out her Jack Gordon Writing Program responsibilities. As to Paragraph 22, it is not accepted that the Respondent's problems in November, 1988 and February, 1989 were attributable to her illness. As to Paragraph 23 that Mr. Shanklin and Ms. Short were not aware of Respondent's health problems sufficient to allow Respondent to take leave and turn the duties of the Jack Gordon writing program over to another teacher. It would have been an inappropriate form of assistance or relief to allow Respondent to be at her duty assignment and have others responsible for conducting her work. Moreover, the way Respondent presented herself concerning these problems was such that she did not explain her difficulties with the program in answering inquiries about the reasons why she had not performed at an adequate level and she did not ask for relief from her duties at a time that may have saved her the embarrassment and protected the students against her substandard performance. As to Paragraph 24, while the folders were maintained in Ms. Short's office this did not preclude the Respondent from being able to carry out necessary updating. As to Paragraph 25, it is not accepted that the use of the noncompliance form aggravated Respondent's attempt at complying with the February 23, 1989 instructions of Mr. Shanklin. As to Paragraph 26, it is accepted that work was turned in at the end of the school year 1988-89, but as described in the recommended order the materials were not in an acceptable state. As to Paragraph 27, to the extent this is intended as an explanation for not grading the materials set out in Petitioner's Exhibit No. 44, it is not accepted. COPIES FURNISHED: Lee S. Carlin, Esquire Assistant Counsel Office of General Counsel 421 West Church Street 715 Towncentre Jacksonville, FL 32202 Albert S. Millar, Esquire 2721 Park Street Jacksonville, FL 32205 Larry L. Zenke, Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Stan Jordan, Chairman Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Betty Castor, Commissioner Department of Education 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The Commissioner alleges that Respondent, a teacher who became romantically involved with an adult woman who was a student of his, engaged in several types of sexual misconduct as defined in the disciplinary statutes and rules. If Respondent engaged in any such wrongdoing, it will be necessary to determine what disciplinary action, if any, should be taken against his educator certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order suspending Pleasant's educator certificate for a period of three years. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 3rd day of January, 2013.
The Issue The issue for determination is whether Petitioner’s challenge to the failing score she received on the essay section of the Florida Educational Leadership Examination (FELE) should be sustained.
Findings Of Fact Petitioner is a teacher. She received her undergraduate degree in education with a major in social studies from Bowling Green State University in 1996. Since earning her bachelor’s degree, she has taught history, psychology, and sociology over a 20-year span, at high schools in North Carolina, Ohio, and for the past three years, Florida. Petitioner holds a Florida teacher certificate. She did not have to take an exam for that certificate. She likely was issued her Florida teacher certificate on the basis of the Ohio teacher certificate she held when she moved to Florida. Petitioner aspires to add to her teacher certificate by attaining certification in educational leadership, which would require that she take and pass all subparts of the FELE. Petitioner testified that in the district where she is employed as a teacher, she would qualify for a raise in her teacher’s pay upon receiving a master’s degree in educational leadership followed by DOE certification in educational leadership. Petitioner accomplished the first step by receiving a master’s degree in educational leadership from Concordia University in Chicago, Illinois, in 2015.3/ She then initiated the process to take the FELE. Educational leadership certification would also make Petitioner eligible for a leadership position, such as principal, vice principal, or a school district administrative leadership position, if she chooses to go that route. However, Petitioner’s primary motivation in seeking this certification is for the additional compensation, and not because she wants an educational leadership position.4/ Respondent, Pam Stewart, as Commissioner of Education, is the state’s chief educational officer and executive director of DOE. §§ 20.15(2) and 1001.10(1), Fla. Stat. One of DOE’s responsibilities is to review applications for educator certification, and determine the qualifications of applicants according to eligibility standards and prerequisites for the specific type of certification sought. See § 1012.56, Fla. Stat. One common prerequisite is taking and passing an examination relevant to the particular certification. Respondent is authorized to contract for development, administration, and scoring of educator certification exams. § 1012.56(9)(a), Fla. Stat. Pursuant to this authority, following a competitive procurement in 2011, Pearson was awarded a contract to administer and score Florida’s educator certification exams, including the FELE. The State Board of Education (SBE) is the collegial agency head of DOE. § 20.15(1), Fla. Stat. As agency head, the SBE was required to approve the contract with Pearson. The SBE is also charged with promulgating certain rules that set forth policies related to educator certification, such as requirements to achieve a passing score on certification exams. DOE develops recommendations for the SBE regarding promulgating and amending these rules. In developing its recommendations, DOE obtains input and information from a diverse group of Florida experts and stakeholders, including active teachers and principals, district administrators, and academicians from colleges and universities. FELE Essay Development and Scoring DOE develops the FELE, as well as the other educator certification exams, in-house. The FELE is developed and periodically revised to align with SBE-promulgated standards for educational leadership, as well as SBE-promulgated generic subject area competencies. In addition, as required by statute, certification exams, including the FELE, must be aligned to SBE- approved student standards. Details about the FELE, such as the applicable generic competencies, the exam organization, and passing score requirements, are set forth in Florida Administrative Code Rule 6A-4.00821 (the FELE rule). The FELE rule has been amended periodically, but the current version includes a running history, setting forth FELE details that applied during past time periods, as well as those currently in effect. The FELE consists of three subtests. Subtest one is a multiple choice test covering the area described as “Leadership for Student Learning.” Subtest two, also a multiple choice test, covers “Organizational Development.” Subtest three covers “Systems Leadership,” and has two sections: a multiple choice section; and a written performance assessment, or essay, section. The FELE has contained an essay component for many years (as far back as any witness could remember). Before January 2015, the essay score was included in a single composite score given for subtest three. The multiple choice part accounted for most of the weight of the composite score (70 percent); the essay portion accounted for 30 percent of the composite score. Based on input from educators, academicians, and other subject matter experts, DOE recommended that the FELE subtest three be changed by establishing separate passing score requirements for each section, thereby requiring examinees to pass each section. The SBE adopted the recommendation, which is codified in the FELE rule, and has applied to FELE scoring since January 1, 2015. The effect of the change is that an examinee not as proficient in effective written communications can no longer compensate for a weak essay with a strong performance on the multiple choice section. To a lesser extent (given the prior 70:30 weight allocation), the reverse is also true. The policy underlying this scoring change is to give more emphasis to testing writing skills, in recognition of the critical importance of those skills. By giving heightened scrutiny to writing skills, the FELE better aligns with increasingly rigorous SBE-approved student standards for written performance. This policy change is reasonable and within the purview of the SBE; in any event, it is not subject to debate in this case, because Petitioner did not challenge the FELE rule. The generic competencies to be demonstrated by means of the FELE are set forth in the publication “Competencies and Skills Required for Certification in Education Leadership in Florida, Fourth Edition 2012,” adopted by reference in the FELE rule and effective as of January 1, 2014. The competency and skills generally tested by the FELE written performance assessment are: Knowledge of effective communication practices that accomplish school and system- wide goals by building and maintaining collaborative relationships with stakeholders Analyze data and communicate, in writing, appropriate information to stakeholders. Analyze data and communicate, in writing, strategies for creating opportunities within a school that engage stakeholders. Analyze data and communicate, in writing, strategies that increase motivation and improve morale while promoting collegial efforts. This generic description provides a high-level view (aptly described as from the 30,000-foot level) of the competency and skills that an educational leader should possess, which are tested by the written performance assessment. DOE’s job is to distill those qualities down to a test. As reasonably summarized by DOE’s witnesses, the purpose of the FELE written performance assessment, as established by the SBE, is to test for effective written communication skills, and data analysis that drives appropriate strategies for improvement. These overall concepts are built into the general FELE rubric which serves as a guide to scoring, the individual essay prompts, and the supplemental rating criteria (essentially prompt-specific rubrics, making the general rubric specific to each essay prompt). The FELE rule sets forth requirements for how the “test scoring agency” (Pearson) must conduct the scoring of the written performance assessment: Raters Judges. The test scoring agency shall appoint persons to score the written performance assessment who have prior experience as educational leaders, instructional leaders, or school building administrators. Chief Raters. The chief raters shall be raters who have prior experience as educational leaders, instructional leaders, or school building administrators and have demonstrated success as raters. Pursuant to Pearson’s agreement with DOE, DOE retains the right to approve raters who will be scoring the written performance assessments. Therefore, Pearson proposes raters who meet the specified qualifications, and then DOE approves or disapproves the proposed raters. Approved raters must undergo training before they are appointed by Pearson to conduct scoring. There is currently one chief rater for the FELE written performance assessment. The chief rater was a rater before being trained for, and assuming, the chief rater position. The chief rater was trained by Florida DOE chief raters when Pearson became the contractor and the scoring was transitioned to Pearson’s offices in Hadley, Massachusetts, during 2012 to 2013. Pearson employs holistic scoring as the exclusive method for scoring essays, including FELE written performance assessments (as specified in Pearson’s contract with DOE). The holistic scoring method is used to score essay examinations by professionals across the testing service industry. Pearson has extensive experience in the testing service industry, currently providing test scoring services to more than 20 states. Dr. Michael Grogan, Pearson’s director of performance assessment scoring services and a former chief rater, has been leading sessions in holistic scoring or training others since 2003. He described the holistic scoring method as a process of evaluating the overall effect of a response, weighing its strengths and weaknesses, and assigning the response one score. Through training and use of tools, such as rubrics and exemplars, the evaluation process becomes less subjective and more standardized, with professional bias of individual raters minimized, and leading to consistent scoring among trained raters. Training is therefore an integral part of Pearson’s testing services for which DOE contracted. In an intensive two-day training program conducted by the chief rater in Hadley, prospective raters are trained in the holistic scoring method used to score FELE essays. Pearson’s rater training program begins with a review of background about the holistic scoring method generally, including discussions about rater bias. From there, trainees are oriented to the FELE-specific training material. They thoroughly review and discuss the rubric, the score scale, the operational prompt raters will be scoring, and exemplars (other responses to the prompt that have been pre-scored). The rater candidates then employ these tools to begin independently scoring exemplars. Raters-in-training conduct many rounds of independent scoring sessions, interspersed with group discussions regarding how the essays should have been scored. The trainees then move into the calibration test phase, in which they independently score essay exemplars, paired with an experienced rater who independently scores the same exemplars. The trainees score essay after essay, then compare scores with the experienced rater, with the goal to achieve consistency in scores, by equaling or coming within one point of the other rater’s score. Ultimately, the raters must pass the calibration test by achieving scoring consistency to qualify for appointment as raters to score actual FELE essays. Each FELE essay is scored independently by two DOE- approved raters who meet the qualifications in the FELE rule and who have successfully completed training. Pairs of raters receive scoring assignments, one prompt at a time. The assignments are received anonymously; one rater does not know who the other assigned rater is. And neither rater knows anything about the examinee, as the essay is identified solely by a blind number. FELE essay raters work in one room, at individual computer terminals, in Hadley. Security of all testing information is vigilantly maintained, through confidentiality agreements and secure, limited, and protected computer access. For each scoring assignment, raters adhere to a step- by-step process that reinforces their initial training. Raters must first score sample responses to a historic prompt that is different from the assigned prompt, as a training refresher to invoke the holistic scoring mindset. From there, raters review the assigned prompt and the scoring guides (general rubric and supplemental rating criteria). Raters then must score an anchor set of six sample responses, one exemplifying each score category; the historic scores are not revealed until the raters complete their scoring. Raters compare their scores with the anchor scores, and work through any discrepancies. Raters then go through a calibration process of scoring 10 more sample responses to the same prompt. After scoring all 10 essays, the raters learn the scores deemed appropriate for those responses, and must work through any discrepancies until consistency is achieved. Only after scoring many sample essays and achieving success in scoring consistency are the raters permitted to turn to the assigned FELE essay for review and scoring. The chief rater supervises and monitors the raters while they are engaged in their scoring work. The chief rater is physically present in the same room with the raters, monitoring their work online in real time. As raters enter scores, those scores are immediately known by the chief rater, so that any “red flag” issues in scoring results and trends can be addressed immediately. As another tool, “ghost papers,” which are pre- scored essays, are randomly assigned to raters as if they are actual FELE essays. The chief rater monitors ghost paper scoring as another check on consistency with a predetermined measure. The scores of the two raters assigned to score a FELE essay are added together for the total holistic score. Thus, the total score range for a FELE essay is between two points and 12 points: the lowest possible score of two points would be achieved if each rater assigns a score of one point; and the highest score of 12 points would be achieved if each rater assigns six points. The sum of the two raters’ scores will be the score that the FELE essay receives unless the raters’ scores disagree by more than one point. If the two raters’ scores differ by more than one point, then the chief rater steps in to resolve the discrepancy. After FELE essays are scored, the examinee is informed of the final score of between two and 12 points, and the examinee is told whether the score is a passing or failing score. Seven points is a passing score, according to the FELE rule. Raters do not develop written comments as part of their evaluation of FELE essays. Their holistic evaluation is expressed by the point value they assign to the essay. Through the intensive training and the subsequent calibration and recalibration before each FELE essay scoring assignment, Pearson has achieved excellent consistency in rater scoring of the FELE written performance assessment. From September 12, 2016, through October 8, 2016, the four Pearson raters who were scoring FELE essays (including Petitioner’s essay) achieved a coefficient alpha index of 98 percent, meaning that 98 percent of the time, the scores assigned to an essay by a pair of raters were either identical or adjacent (within one point), and when adjacent, were balanced (i.e., each rater was as often the higher scorer as he or she was the lower scorer). This exceeds industry standards. A comparable, high coefficient alpha index was achieved by FELE essay raters for each month in 2015 and 2016. The lowest coefficient alpha index, still exceeding industry standards, was 93 percent in a single month (February 2015). In two months (December 2015 and July 2016), the coefficient alpha index was 94 percent, with the remaining 21 months at between 95 percent and 98 percent. Examinee Perspective: Preparation for the FELE Essay DOE provides detailed information and aids on its website regarding the FELE, including the essay section, for potential examinees. This includes a 40-page test information guide for the FELE. The test information guide contains all of the SBE-adopted competencies and skills, including the competency and skills tested by the written performance assessment. The guide also contains the general FELE essay scoring rubric, and a sample prompt that is representative of the essay prompts actually used. DOE also posts on its website three additional sample FELE essay prompts along with the supplemental rating criteria that correspond to those prompts. Petitioner does not challenge the appropriateness of these materials generally, which she accessed and used to prepare for the FELE written performance assessment. However, Petitioner complained that DOE does not provide more study guide materials or endorse specific vendors of study guide materials so as to more thoroughly prepare potential examinees for their essay tests. Petitioner also complained that when an examinee fails an essay test, DOE does not provide substantive explanations to help the examinee understand the reasons for the failing score and how the examinee can perform better. DOE appropriately responded to this criticism by reference to standards for testing agencies adopted by three authoritative bodies: the American Educational Research Association, the American Psychological Association, and the National Council of Measurement Education. These standards dictate that as testing agency, DOE’s responsibility is to develop tests that evaluate whether individuals are prepared with the necessary skills. It is not DOE’s responsibility, and it would not be appropriate for DOE, as the testing agency, to prepare individuals to pass its tests, or coach individuals on how to perform better on tests they do not pass. The information DOE makes publicly available is appropriate and sufficient to explain the FELE essay exam and scoring process, and to allow an examinee to know what to expect in a prompt and what is expected of the examinee in a response. The DOE test information guide explains the FELE essay and scoring process, as follows: Your response will be scored holistically by two raters. The personal views you express will not be an issue; however, the skill with which you express those views, the logic of your arguments, the quality of your data analysis and interpretation, and the appropriateness of your implementation plans will be very important in the scoring. Your response will be scored on two constructs: communication skills, including ideas, focus, organization, and mechanics (capitalization, punctuation, spelling, and usage) and data analysis, interpretation, and evaluation, including data explanation, application, relevant implications, and analysis of trends. The raters will use the criteria on the following page when evaluating your response. The score you receive for your written performance assessment will be the combined total of the two raters’ scores. (R. Exh. 2 at 13 of 40). On “the following page” of the test information guide, the general FELE essay rubric is set forth in its entirety. The rubric is also available on the DOE website as a separate, stand- alone document. The rubric is simply a comparative description of the extent to which an essay demonstrates the generic competency and skills to be tested--effective written communication skills, with data analysis that drives appropriate strategies for improvement. For example, recognizing that part of effective written communication is use of proper grammar and syntax, the rubric describes that quality comparatively, differentiating between best, better, good, not-so-good, worse, and worst. Similarly, the rubric addresses whether proposed strategies are appropriate by comparing the extent to which the strategies are aligned with the data findings, relevant implications, and trends. But these are just parts--and not discrete parts--of the evaluation. As explained in the test information guide, holistic evaluation judges the overall effect of a response, considering all aspects of effective communication and data analysis, in a process of weighing and balancing strengths and weaknesses. Of course, DOE does not make publicly available those essay prompts being used in FELE tests, or the supplemental rating criteria for those prompts; these are protected, confidential testing material. It would be unreasonable for examinees to expect more from a testing agency than what DOE makes available. Score Verification An examinee who fails the written performance assessment (or any other FELE subtest or section) may request score verification, to verify that the failed exam was scored correctly. The score verification procedures are set forth in the FELE rule. The score verification rule provides that DOE makes the determination as to whether an examinee’s test was scored correctly. DOE is authorized to consult with field-specific subject matter experts in making this determination. In practice, though not required by the FELE rule, when a score verification request is directed to the score assigned to a FELE written performance assessment, DOE always consults with a field-specific subject matter expert known as a “chief reviewer.” Chief reviewers are another category of experts (in addition to raters and chief raters) proposed by Pearson pursuant to qualifications identified by DOE, subject to DOE approval. Once approved by DOE, prospective chief reviewers undergo the same rater training in the holistic scoring process as do all other raters, to gain experience in scoring essays and undergo calibration to achieve scoring consistency. In addition, chief reviewers are given training for the chief reviewer role of conducting review and scoring of essays when scores have been contested.5/ Unlike raters and chief raters, chief reviewers do not work at Pearson in Hadley, Massachusetts; they are Florida experts, actively working as principals of Florida schools. Chief reviewers only become involved when an examinee who failed the FELE written performance assessment invokes the score verification process. A chief reviewer is assigned to evaluate whether that essay was scored correctly. The chief reviewer conducts that evaluation by first going through the same step-by-step process as raters, following the same retraining and calibration steps that involve scoring many sample essays. Upon achieving success in the calibration test, the chief reviewer moves on to evaluate the assigned essay response independently, before reviewing the scores the raters gave to that essay. Upon reviewing the raters’ scores, the chief reviewer offers his or her view as to whether the essay score should stand or be changed, and provides a summary rationale for that opinion. This information is conveyed to DOE, which determines the action to take--verify or change the score--and notifies the examinee of the action taken. Petitioner’s FELE Attempts Petitioner took all parts of the FELE for the first time in the summer of 2015, in June and July. She passed subtest one, but failed subtest two and both sections (multiple choice and written performance assessment) of subtest three. FELE examinees can retake failed subtests/sections, and need only retake the parts failed. There are no limits on the number of retakes. The requirements for retakes are that at least 30 days must have elapsed since the last exam attempt, and that examinees pay the registration fees specified in the FELE rule for each retake of a failed subtest and/or section. On April 23, 2016, roughly nine months after her first attempt, Petitioner retook subtest two and both sections of subtest three. To prepare, Petitioner used the “very limited” resources on the DOE website, and purchased some “supplementals,” which she described as materials “on the market that supposed FELE experts sell.” (Tr. 33). She used the material to study and practice writing essays. Petitioner passed subpart two and the multiple choice portion of subpart three. However, she did not pass the written assessment section of subpart three. Petitioner retook the written performance assessment 33 days later (May 26, 2016), but again, did not pass. Petitioner did not invoke the score verification process to question the failing scores she received on her first three FELE essays. Those three failing scores stand as final, as she did not challenge them. Petitioner explained that she did not challenge them because she was embarrassed, because as a teacher, she believed that she would pass the test. However, while Petitioner has had many years of success as a teacher, the skills for teaching do not necessarily correlate to the skills required for educational leadership positions, as several DOE witnesses credibly attested. Nonetheless, Petitioner tried again, in an effort to qualify for the pay raise her district would provide. She retook the FELE essay section for the fourth time on September 28, 2016. Petitioner testified that, as she had done before, she reviewed the material on DOE’s website, such as the test information guide with its general rubric, and she practiced writing essays using the sample essay prompts and supplemental rating criteria. In what was described as a “eureka moment,” she also found what she described as “the rubric” on the website, which she proceeded to memorize. Rather than the rubric, however, what Petitioner memorized was the generic competency and skills tested by the written performance assessment. Petitioner made a point of incorporating words from the competency and skills document in her essay. Petitioner did not pass. Each of the four times Petitioner took the FELE written performance assessment, including the most recent attempt at issue in this case, both raters assigned to score her essay gave the essay three points, for a total score of six points. Since in each of her four attempts, Petitioner’s essay was scored the same by both raters, Petitioner’s essays were never reviewed by a chief rater, because there was never a discrepancy in the raters’ scores for the chief rater to resolve. Petitioner’s Challenge to Her Fourth Six-Point Essay Score When Petitioner was notified that her fourth essay attempt resulted in the same score--six, on a scale ranging from two points to 12 points--this time Petitioner took the next step, by requesting a score verification session. Following the procedures in the FELE rule for score verification, Petitioner registered, paid the required fee, and went to the designated Pearson site. There, she was able to review the essay prompt, as well as her written response. Petitioner testified that she prepared a “statement of specific scoring errors” (so named in the FELE rule--more aptly, in her case, a statement explaining why she thinks her essay score was erroneous), which she submitted to Pearson at the end of her session. By rule, the statement is then filed with DOE. The statement Petitioner prepared was not offered into evidence, apparently by choice, as Petitioner was looking for it at one point, stating that it was “part of the confidential stuff” (Tr. 78) that had been produced by DOE. Petitioner attempted to describe the statement of scoring errors that she recalls completing. She described it as primarily demonstrating where in her essay she addressed what she characterized as the “rubric” that she had found on DOE’s website and memorized. As noted previously, this was not the rubric, but rather, was the high-level description of the competency and skills tested by the FELE written performance assessment. As described, Petitioner’s statement explaining that she “memorized” the competency/skills ingredients, and showing where she included competency/skills buzz-words in her essay (e.g., “morale”; she also said “celebration,” but that word does not appear in the competency/skills), would not seem to be the sort of statement that would be persuasive as to a claim of an erroneous score. It would be a mistake to memorize and repeat words from the generic competency/skills without regard to whether they are used in a way that makes sense in the responding to the specific instructions of the essay prompt. DOE conducted its review, and the score was verified through a process consistent with DOE’s practice of consulting a chief reviewer retained by Pearson with DOE approval, who was qualified as a subject matter expert in the field of Florida educational leadership. The assigned chief reviewer was also qualified by Pearson training in the holistic scoring method and in conducting score verification reviews. The chief reviewer who undertook to verify Petitioner’s essay score did not review Petitioner’s statement explaining why she believed her essay score was erroneous. Instead, he independently evaluated Petitioner’s essay, following the same holistic method, including the step-by-step retraining and calibration process, used by all raters to score a FELE essay. Then the chief reviewer reviewed the scores separately assigned by the two raters who scored Petitioner’s essay. He concluded that the assigned scores of three were appropriate for Petitioner’s essay, and that no change should be made. The chief reviewer provided a summary rationale for his determination.6/ Petitioner complains that the chief reviewer should have been given her statement explaining why her score was erroneous, because that might have affected the chief reviewer’s decision. However, pursuant to the FELE rule, the chief reviewer’s role is consultative only; DOE makes the determination of whether Petitioner’s essay was scored correctly, which is why the rule provides that the statement of asserted scoring errors is filed with DOE. Petitioner presented no evidence proving that DOE did not consider Petitioner’s statement explaining why she believed her essay score was erroneous. No testimony was offered by a witness with personal knowledge of any review given to Petitioner’s statement; that review would have been done by a member of DOE’s “scoring and reporting team” (Tr. 260-261), none of whom testified. If Petitioner had proven that the statement was not considered by DOE, the failure to offer that statement into evidence would make it impossible to determine the import, if any, of such failure. Petitioner was notified by DOE that the “essay score that you questioned has been reviewed by a Chief Reviewer. As a result of this review, the Department has determined that the written performance section that you questioned is indeed scored correctly.” Petitioner was informed that if she was not satisfied with the outcome, she was entitled to dispute the decision pursuant to sections 120.569 and 120.57. Petitioner availed herself of that opportunity,7/ and was given the chance in a de novo evidentiary hearing to present evidence to support her challenge to her exam score. At the hearing, Petitioner offered only her own testimony as support for her challenge to the scoring of her essay. She isolated portions of the supplemental rating criteria and attempted to identify where her essay addressed the isolated portions, for which, in her view, she ought to have been awarded “a point” here or “a half-point” there. She also referred to isolated parts of the summary comments from the raters and chief reviewers, and attempted to identify the parts of her essay that did or did not do what the comment portions stated. Petitioner was not shown to be, tendered as, or qualified as an expert in either educational leadership or holistic scoring of essays. Her attempt to tally points by comparing isolated parts of the prompt-specific rubric to isolated parts of her essay is contrary to the holistic scoring approach used to score the FELE written performance assessment. Petitioner offered no comprehensive, holistic evaluation of her essay as a whole, nor was she shown to be qualified to do so. Besides being contrary to the holistic scoring method, Petitioner’s critique of the scoring of her essay was wholly unpersuasive. Without undermining the confidentiality of the ingredients of Petitioner’s testimony (the essay prompt, her essay, the supplemental rating criteria, and the historic anchors), overall, the undersigned did not find Petitioner’s critique credible or accurate. Although awkward to try to explain in code, some examples follow to illustrate the basis for this overall finding. As one example, Petitioner referred to data points that the prompt-specific rubric indicated should be identified in response to the prompt. If a “data point” that should have been identified was that A was consistently lower than B, Petitioner called attention to a part of her essay identifying A as low. She acknowledged that her essay did not expressly compare A to B at all, much less over time, but Petitioner argued that those comparisons were implicit. She said that she should have gotten at least a half-point for partially identifying the data point. That argument is rejected. The point that needed to be made was a comparative assessment over a time span. Where another data point called for identifying that two things were “substantially lower” than other things, Petitioner said that she sufficiently identified this point by saying that one of those two things was “lowest” (or “worst”). However, the point that needed to be made was not just that something was lowest or worst, but also, that another thing was also lower, and that the degree of separation between those two things and other things was substantial. Overall as to the data points, Petitioner failed to identify several significant trends, and failed to offer sufficient comparative analysis as to the trends she did identify. She reported data or averages of data without identifying the relevant implications of the data, as would have come from making the appropriate comparisons and identifying the appropriate trends. In terms of the competency/skills language, she did not analyze the data and communicate, in writing, appropriate information to the stakeholders identified in the prompt as the target audience. The data point failures were particularly problematic when taken to the next step of proposing specific strategies that would lead to improvement in the areas shown to be needed from the data points. For example, Petitioner’s failure to identify the second data point in the supplemental rating criteria resulted in Petitioner proposing action that was at odds with what the second data point showed.8/ Petitioner’s attempted critique of her essay score was riddled with other inconsistencies. For example, Petitioner acknowledged that she often failed to summarize specific data for each of the three years, choosing instead to provide three-year averages. Petitioner’s explanation was that she did not want to repeat data in the prompt because that would be condescending to her target audience. This is a weak rationale, one which is at odds with the instructions given with the prompt. Petitioner also said it should have been a positive that instead of just citing yearly numbers, she went to the trouble of calculating three-year averages. Instead, it appeared more negative than positive, by masking information needed to respond to the prompt. While Petitioner defended her omission of specific data because of the target audience she was instructed to address, Petitioner inconsistently sought to explain an odd statement using the word “celebrated” (Jt. Exh. 3 at 1, first sentence of second paragraph) as being directed more to certain other stakeholders than to the target audience. She did this because the “rubric” (i.e., the competency/skills), said to communicate to stakeholders, and also “talks about morale and celebration.” (Tr. 59). This is an example of Petitioner’s ineffective strategy of throwing out words from the competency/skills in ways that were contrary to specific instructions in the prompt. The target audience identified in an essay prompt may be certain stakeholders, instead of all stakeholders. For example, the sample prompt in the test information guide (R. Exh. 2 at 34), instructs the writer to prepare a memorandum for school advisory council members. The use of the word “stakeholders” in the competency/skills would not justify ignoring the essay prompt instructions by writing with a communication style more suited to a different audience of other stakeholders. Petitioner disagreed with the suggestion in both chief reviewers’ written comments that the essay’s responses to the third and fourth bullet points in the prompt (Jt. Exh. 1) were generalized, lacking specifics and examples. Petitioner failed to persuasively establish that her essay provided sufficient detail in this regard to avoid being fairly characterized as responding to these bullet points with “generalizations.” By failing to adequately analyze the data, relevant implications, and trends, Petitioner’s responses to these bullet points were either too general (e.g., research to find strategies), or in the one instance where specific action was described, the action was at odds with data points she missed. Her responses lacked appropriate specific action driven by data analysis. Petitioner admitted that her essay had a number of misspellings, grammatical errors, and punctuation errors. She acknowledged that this is an area that the raters are supposed to consider. It is a necessary part of effective written communication. In this regard, by the undersigned’s count, 29 of the 37 sentences in Petitioner’s essay suffer from one or more errors of grammar, syntax, punctuation, or misspellings. More than half of those sentences (at least 15 of 29) suffer from errors of grammar and syntax, such as pairing “neither” with “or” instead of “neither . . . nor,” using non-parallel structure, using plural subjects with singular verbs or singular subjects with plural verbs, and using conditional language (such as “would do” and “would be”) without a corresponding condition (e.g., that action would be appropriate, if the trend continues). In addition, the last sentence of the second paragraph on page one is not a complete sentence, ending in mid-word. Petitioner admitted that she ran out of time to complete the thought. As to this consideration, Petitioner’s essay appears to the undersigned to fall somewhere between the general rubric’s description for a “three” (“The writer demonstrates some errors in the use of proper grammar and syntax that do not detract from the overall effect.”), and the general rubric’s description for a “two” (“The writer demonstrates serious and frequent errors in proper grammar and syntax.”). Petitioner’s essay admittedly did not meet the general rubric’s description for a score of “four” (“The writer demonstrates satisfactory use of proper grammar and syntax.”). This does not automatically doom Petitioner’s essay to a score of three or less than three. However, it demonstrates the fallacy of Petitioner’s approach of seizing on isolated parts of the prompt-specific rubric (supplemental rating criteria) to compare to her essay, without approaching the scoring process holistically. Even if Petitioner had persuasively critiqued parts of the essay scoring, as Respondent aptly notes, it is not simply a matter of checking off boxes and adding up points. Petitioner failed to prove that the holistic scoring of her essay was incorrect, arbitrary, capricious, or devoid of logic and reason. She offered no evidence that a proper holistic evaluation of her essay would result in a higher total score than six; indeed, she offered no holistic evaluation of her essay at all. Petitioner’s critique of various parts in isolation did not credibly or effectively prove that her score of six was too low; if anything, a non-expert’s review of various parts in isolation could suggest that a score of six would be generous. But that is not the scoring approach called for here. Petitioner failed to prove that there was anything unfair, discriminatory, or fraudulent about the process by which the written performance assessment exam was developed, administered, and scored.9/ Petitioner pointed to the passage rate on the FELE written performance exam following the adoption of a separate passing score requirement. In 2015 and 2016, the passage rates for first-time test takers were 54 percent and 50 percent, respectively. The data is collected and reported for first-time test takers only, because that is considered the most reliable. Historically, performance on essay examinations goes down, not up, with multiple retakes. The passage rates reflect a mix of both examinees prepared in an academic educational leadership program geared to Florida standards, and those whose educational background does not include a Florida-focused program. Historically, examinees from academic programs aligned to Florida standards have greater success passing the FELE essay than those from out-of-state academic programs that are not aligned to Florida standards. Petitioner may have been at a disadvantage in this regard, as it does not appear that her master’s program at Concordia University was aligned to Florida’s educational leadership standards. The passage rates, standing alone, do not prove that the written performance assessment is unfair, arbitrary, or capricious. It may be that the SBE’s decision to increase scrutiny of the writing skills of FELE examinees results in fewer examinees achieving a passing score. Perhaps that is a good thing. Perhaps too many examinees achieved passing scores on the FELE in the past, despite weak written communication skills. In any event, the overall written performance assessment passage rates, standing alone, provide no support for Petitioner’s challenge to the score given to her essay. Petitioner failed to prove that the scoring verification process was unfair, arbitrary, capricious, or contrary to the procedures codified in the FELE rule. Petitioner pointed to evidence that essay scores are changed only on occasion, and that no scores were changed in 2016. Those facts, standing alone, do not support an inference that the score verification process is unfair, arbitrary, or capricious. An equally reasonable or more reasonable inference is that the scores to be verified were appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner’s challenge to the failing score she received on the written performance assessment section of the Florida Educational Leadership Exam taken in September 2016, and dismissing the petition in this proceeding. DONE AND ENTERED this 13th day of October, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 13th day of October, 2017.
