95-005127 Rochard Lamothe vs. Department Of Education Status: Closed Recommended Order on Friday, January 19, 1996.

Summary: Score of examinee who cheated on subtest of Florida teacher certification examination by copying answers from another examinee should be invalidated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROCHARD LAMOTHE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5127

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December

19, 1995, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly

designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rochard Lamothe, pro se

4951 Rothschild Drive

Coral Springs, Florida 33067

For Respondent: Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

Whether the Department of Education (hereinafter referred to as the

"Department") should invalidate the score that Petitioner attained on the August

5, 1995, Professional Education Subtest of the Florida Teacher Certification

Examination on the ground that Petitioner was guilty of cheating on the

examination, as alleged in the Department's September 18, 1995, letter to

Petitioner?

PRELIMINARY STATEMENT

By letter dated September 18, 1995, the Department advised Petitioner of

its intention to invalidate the score that Petitioner had attained on the August

5, 1995, Professional Education Subtest of the Florida Teacher Certification

Examination (which Petitioner had taken at the North Campus of Broward Community

College) on the ground that Petitioner had cheated on the examination. By

letter dated September 28, 1995, Petitioner requested a formal hearing on the

Department's proposed action. On October 24, 1995, the matter was referred to

the Division of Administrative Hearings (hereinafter referred to as the

"Division") for the assignment of a Division hearing officer to conduct the

formal hearing Petitioner had requested.

At the hearing, which was held on December 19, 1995, the Department

presented the testimony of five witnesses: Kenneth Loewe, Ph.D.; 1/ Dotlyn

Lowe; Greta Jackson; Consuelo Johnson; and Marcia Cadogan. Dr. Loewe is the

director of the Department's professional certification examination program.

Lowe, Jackson, Johnson and Cadogan all played roles in the August 5, 1995,

administration of the Professional Education Subtest at the North Campus of

Broward Community College. Lowe was the test site administrator. Jackson was

the test room supervisor. Johnson and Cadogan were test room proctors. In

addition to the testimony of these five witnesses, the Department offered, and

the Hearing Officer received, seven exhibits (Agency's Exhibits 1 through 7)

into evidence. Petitioner testified briefly on his own behalf. He presented no

other evidence.

At the close of the evidentiary portion of the formal hearing on December

19, 1995, the Hearing Officer announced on the record that post-hearing

submittals had to be filed no later than January 8, 1996. On January 8, 1996,

the Department timely filed a proposed recommended order containing, among other

things, what the Department has labelled as, "findings of fact." The

Department's proposed recommended order has been carefully considered by the

Hearing Officer. The "findings of fact" set forth in the proposed recommended

order are specifically addressed in the Appendix to this Recommended Order. To

date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. The Professional Education Subtest (hereinafter referred to as the

"Subtest") of the Florida Teacher Certification Examination tests the examinees'

mastery and knowledge of general teaching methods and strategies. It is offered

four times a year.

2. The Subtest consists of approximately 130 to 135 multiple choice

questions (each with four choices from which the examinees must choose the

correct answer).

3. The questions are printed in a question booklet.

4. There is a separate answer sheet on which examinees record their

answers to these questions by blackening, with a pencil, the appropriate bubble.

5. Examinees are given two and a half hours to complete the Subtest.

6. The Subtest is a criterion referenced test as opposed to a norm

referenced test. To pass the Subtest, an examinee must attain a scaled score of

200.

7. The Subtest is administered by the Office of Instructional Resources of

the University of Florida (hereinafter referred to as "OIR") pursuant to a

contract that OIR has with the Department. Dr. Sue Legg is the head of OIR.

Pat Dovall is one of her assistants.

8. Among OIR's responsibilities is the development, in cooperation with

the Department, of a Test Administration Manual for the Subtest (hereinafter

referred to as the "Manual") to guide and assist test site administrators, test

room supervisors and test room proctors in discharging their duties at the test

administration sites.

9. The Manual developed by OIR provides that the following procedures

should be followed in the seating of examinees:

3. Procedures for Seating of Examinees

- Seat examinees in the same seat they used

for the morning session. For retake candidates

testing only in the afternoon, follow the

procedures below.

- Place a test book receipt card on each desk

where an examinee will sit.

- Be certain you and your assistants have

unimpeded access to every examinee.

- Assign examinee to a specific row or column

of chairs. DO NOT ALLOW EXAMINEES TO SELECT THEIR

OWN SEATING POSITIONS.

- Arrange seating in a manner which will separate

those who are obviously acquainted.

- Seat examinees so they cannot see their neighbors'

responses or exchange information.

- Fill in appropriate chairs in each row or column

in order to expedite distribution and collection of

test materials.

- Place left handed examinees in a separate row

or in the last seat or each row of right-handed

examinees. If use of chairs with right-handed

tablet arms cannot be avoided, seat left-handed

examinees with vacant chairs to their left for

use as writing surfaces.

- If an examinee objects to his seating assign-

ment, the room supervisor should make every

attempt to work out a satisfactory solution.

If this is not possible, the center supervisor

should discuss the problem with the examinee.

4. Seating Arrangements

- Level Seating Arrangements:

Seat examinees directly behind one another,

facing in the same direction. Maintain a

three-foot separation.

- Inclined Seating Arrangements:

Maintain a three-foot separation front and

rear and side-to-side.

10. With respect to the subject of "individual examinee irregularities,"

the Manual states the following:

1. Report on the Irregularity Report

- name

- social security number

- test name

- time by reset watch

2. Misconduct

Defined as any of the following: creating a

disturbance; giving or receiving help; using

notes, books, calculators; removing test materials

or notes from the testing room; attempting to take

a test for someone else.

ANY EXAMINEE MAY BE DISMISSED WHO IS ENGAGING IN

ANY MISCONDUCT AS DEFINED ABOVE:

- Two witnesses (or more) must observe the misconduct.

The test center supervisor or room supervisor must be

one of the witnesses.

- A full written report, signed by all witnesses,

must be sent to OIR immediately.

3. Cheating

Defined as an examinee giving or receiving assistance

during a testing period.

- Dismiss examinee from the testing areas if either

of the above occurs. Examinee may not return.

- Dismiss examinee who repeatedly, after warning,

continues to work on a test after time has elapsed.

- Dismiss examinee who uses prohibited aids.

- Include the following on the Irregularity Report:

A. Examinee's identification

B. Type of "cheating" and details of activity

C. Warnings given

D. Time on the reset watch

E. Test section

F. Degree of certainty

G. Name of persons confirming the information

H. Information given to the examinee at the time

of the incident

Attach examinee's answer folder to the

Irregularity Report and return to OIR.

4. Suspected Cheating

- Record name of examinee suspected.

- Record name of persons from whom you suspect

the examinee was copying.

- Warn the examinee that you suspect cheating.

- Move examinee to provide further separation.

5. Disturbances

Defined as behavior of examinee during testing

that disturbs others; loud noises or other

conditions that lead to complaints by the examinees.

- Individual disruptive behavior

A. Warn examinee that dismissal will result

if behavior continues.

B. Report the incident on the Irregularity Report.

- Outside disturbance

A. Stop test.

B. Have examinees close test books with answer

folders inserted.

C. Note time on the reset watch.

D. Adjust time when test is resumed to ensure a

full test period.

11. OIR is also responsible for the selection of test administration

sites, subject to the approval of the Department.

12. The North Campus of Broward Community College (hereinafter referred to

as "BCC") was selected by OIR and approved by the Department as one of the test

administration sites for the August 5, 1995, Subtest.

13. For the August 5, 1995, Subtest at BCC, Dotlyn Lowe was the OIR-

slected test site administrator, Greta Jackson was the test room supervisor, and

Consuelo Johnson and Marcia Cadogan were the test room proctors. Each had

served in similar capacities for prior examinations and, having previously

reviewed the Manual, 2/ each was aware of its contents at the time of the

administration of the August 5, 1995, Subtest.

14. The August 5, 1995, Subtest at BCC was administered in a classroom

which had approximately 50 seats arranged in eight or nine rows. Each seat had

a right-handed tablet arm for use as a writing surface.

15. Petitioner was one of the approximately 35 examinees who took the

August 5, 1995, Subtest at BCC.

16. He sat in the last occupied row of seats (in Seat Number 42). 3/

Seated immediately to his left, approximately two to two and half feet away (in

Seat Number 41), was another examinee, George Sauers.

17. On various occasions during the Subtest, Petitioner looked at Sauers'

answer sheet to see Sauers' answers. 4/

18. Jackson, Johnson and Cadogan all witnessed Petitioner engage in such

conduct.

19. Jackson first noticed such conduct approximately an hour after the

Subtest had begun. From her vantage point, she saw that Petitioner, instead of

facing straight ahead toward the front of the room, was sitting with his body

angled to the left in a position that enabled him to look at Sauers' answer

sheet and see Sauers' answers without having to turn his head. 5/ Petitioner's

left leg was crossed over his right leg and his left ankle was resting on his

right knee. Petitioner had placed his question booklet on his left knee, but he

was not looking at the booklet. Rather, his eyes were focused on Sauers' answer

sheet.

20. Jackson continued to watch Petitioner for another ten to twenty

minutes from various parts of the classroom. During that time, she observed him

repeatedly shift his eyes toward Sauers' answer sheet and then mark answers on

his own answer sheet.

21. Jackson then asked the two test room proctors, Johnson and Cadogan, to

observe Petitioner. Johnson and Cadogan complied with Jackson's request. For

the next fifteen to twenty minutes Johnson and Cadogan watched Petitioner and

saw him engage in the same conduct that Jackson had observed. They then

reported their observations to Jackson.

22. Jackson thereupon consulted the Manual, specifically that portion

dealing with the subject of "individual examinee irregularities," to determine

what action she should take. Although she was certain that Petitioner had

copied answers from Sauers' answer sheet, she was uncertain as to whether the

provisions of the Manual relating to "cheating" or those relating to "suspected

cheating" applied to such conduct.

23. It was Jackson's understanding that an examinee who copied answers

from another examinee's answer sheet was guilty of "cheating," as opposed to

"suspected cheating," as those terms were used in the Manual, only if the

"copying" examinee was knowingly helped by the examinee from whom he had copied,

which did not appear to be the situation in Petitioner's case. Jackson,

however, was not sure that this interpretation of the Manual was correct. She

therefore dispatched Cadogan to seek guidance from Lowe, the test site

administrator.

24. Lowe sent her assistant, Jacqueline Edwards, to speak with Jackson.

25. Edwards and Jackson determined that the provisions of the Manual

relating to "suspected cheating" should be followed in dealing with Petitioner's

conduct.

26. Petitioner therefore was not removed from the test site. Rather,

after being told that he was suspected of cheating, he was asked to change his

seat (which he did without any argument) and allowed to remain in the classroom

to finish the Subtest.

27. In his new seat, Petitioner sat facing forward and had his test

materials in front of him. He made no apparent effort to look at any of his new

neighbors' answer sheets.

28. Petitioner handed in his answer sheet before the expiration of the two

and a half hours the examinees were given to finish the Subtest.

29. Later that same day, following the administration of the Subtest,

Jackson prepared and submitted a written irregularity report concerning

Petitioner's "suspected cheating." 6/

30. Subsequently, on August 10, 1995, and again on August 28, 1995,

Jackson sent memoranda to OIR accurately describing the incident. The memoranda

were signed not only by Jackson, but also by Johnson and Cadogan, who did so to

indicate that the information contained in the memoranda was accurate to the

best of their knowledge.

31. The August 28, 1995, memorandum was the most detailed of Jackson's

three written statements 7/ concerning the incident. It read as follows:

On Saturday, August 5, 1995, during the

Professional Education Examination, I observed

Mr. Lamothe looking at another examinee's

(George Sauers) answer sheet.

I observed Mr. Lamothe at his desk with one leg

[a]cross the other and his test booklet approxi-

mately 1 ft. away from him, resting on his crossed

leg. However, Mr. Lamothe's pupils were in the

extreme left corner of his eyes, looking onto Mr.

Sauers' desk. Mr. Lamothe would then look up and

once looked directly at me, pause as though he

was thinking and then marked an answer on his

answer sheet.

I observed this incident, within an hour of the

test, over a period of 15-20 minutes[.] I then

asked the proctors (Consuelo Johnson and Marcia

Cadogan) to also watch the examinee. After

approximately 15-20 minutes, the proctors

confirmed that they also observed Mr. Lamothe

cheating. I sent Ms. Cadogan to the Test Center

Supervisor, Dotlyn Lowe, for advice. Mr. Lamothe

was not dismissed from test room, due to our

interpretation of the Test Manual instructions

on page 14, number 3 (that defines cheating as

giving or receiving assistance, which was not

the case). Therefore, we preceded as per the

Test Manual instructions on page 15, number 4.

I then informed Mr. Lamothe that he was

observed/suspected of cheating and asked him

to change his seat. Mr. Lamothe got his

belongings together and moved to the front

of the room. Mr. Lamothe finished his exam

without further incident.

Mr. Lamothe was sitting in the back of the room

in Seat Number 42 and Mr. Sauers was sitting to

Mr. Lamothe's left in Seat Number 41.

32. Petitioner's scaled score on the August 5, 1995, Subtest was 215.

Sauers scored a 229. The mean scaled score of the 2478 examinees taking the

August 5, 1995, Subtest at all locations was 215.32. Of these 2478 examinees,

94.2 percent received a passing scaled score of 200 or above. 8/ 33. After

reviewing Jackson's August 5, 1995, irregularity report and her August 10, 1995,

and August 28, 1995, memoranda, 9/ Dr. Loewe consulted with his supervisor,

Dr. Thomas Fisher. Dr. Loewe and Dr. Fisher determined, based on the

information provided in these documents, that Petitioner's score on the August

5, 1995, Subtest should be invalidated. By letter dated September 18, 1995, Dr.

Loewe informed Petitioner of this determination. The letter read as follows:

This letter is in reference to your score on

the August 5, 1995 Florida Teacher Certification

Examination Professional Education test adminis-

tration.

At that administration test proctors witnessed

you repeatedly looking at the answer document of

another examinee. This constitutes cheating. As

a result your score will not count and no score

report will be mailed. 10/

If you dispute the material facts on which this

decision is based, you may request a formal hearing

by submitting a written request within 20 days of

the date of this letter to:

Dr. Thomas Fisher

Administrator, Student Assessment Services

Suite 701, Florida Education Center

 Florida Department of Educatio

Tallahassee, Florida 32399

Failure to timely request a hearing constitutes

waiver of administrative proceedings, subject

only to judicial review pursuant to Section

120.68, Florida Statutes.

If you wish to complete the teacher certification

testing requirements you will need to register

for and retake the Professional Education test

at a scheduled administration.

34. In response to Dr. Loewe's letter, Petitioner wrote the following

letter, dated to September 28, 1995, to Dr. Fisher:

This letter is in response to the memo that was

sent to me on Septemb[er] 18, 1995 in regard to

looking at the answer sheet of another examinee.

I am appalled by these allegations. I spent

several months studying for this exam and did

not expect a response such as this (only a

positive one).

I am most definitely disputing these allegations.

I request a formal hearing as soon as possible.

Please send me further information on a time and

place so I will be able to resolve this issue.

35. A comparison of Petitioner's answers with those given by Sauers and

the other examinees who took the August 5, 1995, Subtest lends further support

to the conclusion that Petitioner cheated on the examination, as alleged in Dr.

Loewe's September 18, 1995, letter to Petitioner.

36. Petitioner answered 37 of the 132 questions on the August 5, 1995,

Subtest incorrectly. Sauers answered 23 of the 132 questions incorrectly.

37. Twenty-one of the questions Petitioner answered incorrectly, Sauers

also answered incorrectly.

38. Petitioner and Sauers chose the identical incorrect response on 16 of

the 21 questions they both answered incorrectly. This exceeds what would be

expected based on random chance.

39. On 11 of these 16 questions where Petitioner and Sauers selected the

same incorrect answer, their answer was different than the answer most of the

examinees selected. This is highly unusual. For example, on Question 71, 77

percent of the 2478 examinees chose "C," which was the correct answer.

Petitioner and Sauers both selected "A," a choice made by only 5 percent of the

2478 examinees.

40. Petitioner took the Subtest again, for the fifth time, on October 28,

1995.

41. In addition to having taken the Subtest in August of 1995, he had also

previously taken the Subtest in April of 1994, August of 1994, and April of

1995.

42. On the April, 1994; August, 1994; and April, 1995 Subtests he had

received failing scaled scores of 192, 199 and 194, respectively.

43. On the October 28, 1995, Subtest, Petitioner received a failing scaled

score of 198. The mean scaled score of the 1744 examinees taking the October

28, 1995, Subtest at all locations was 213.11. Of these 1744 examinees, 95.4

percent received a passing scaled score of 200 or above.

44. Petitioner was among the 81 examinees who took the Subtest on both

August 5, 1995, and October 28, 1995.

45. Of these 81 examinees, 67 scored higher on the October 28, 1995,

Subtest than they did on the August 5, 1995, Subtest. Such an increase is

typical.

46. Nine of the 81 examinees scored lower on the October 28, 1995, Subtest

than they did on the August 5, 1995, Subtest. Of these nine examinees, four

scored one point lower, one scored three points lower, two scored four points

lower and one scored six points lower. Petitioner was the other examinee who

scored lower on the October 28, 1995, Subtest. His scaled score on the October

28, 1995, Subtest was 17 points lower than his scaled score on the August 5,

1995, Subtest. Such a significant decrease in scoring is consistent with his

having cheated on the August 5, 1995, Subtest.

47. Because Petitioner cheated on the August 5, 1995, Subtest by copying

answers from Sauers' answer sheet, his score on that examination cannot be

considered a reliable and accurate indicator of the extent of his mastery and

knowledge of the general teaching methods and strategies covered on the

examination.

CONCLUSIONS OF LAW

48. Petitioner is seeking to be certified as a teacher.

49. The Department is the state agency responsible for certifying teachers

in the State Florida. Section 231.17, Fla. Stat.

50. "Each applicant for an initial professional certification [must]

demonstrate, on a comprehensive written examination or through such other

procedures as may be specified by the state board [of education], mastery of

those minimum essential generic and specialization competencies and other

criteria as shall be adopted into rules by the state board." Section

231.17(2)(a), Fla. Stat.

51. Subsections (2)(b), (2)(e), (2)(f), (2)(g) and (2)(h) of Section

231.17, Florida Statutes, also make reference to the written examination

candidates for teacher certification must take. They provide, in pertinent

part, as follows:

(b) The state board shall adopt rules that

specify the minimum essential generic and subject

matter competencies to be demonstrated by means

of the written examination and those to be

demonstrated by other means. . . . The

examination shall require a candidate to

demonstrate the following:

* * *

2. Mastery of professional skills and knowledge

of the standards of professional practice; . . .

(e) The commissioner, with the approval of the

state board, may assign to a university in the

state system the responsibility for printing,

administering, scoring, and providing appropriate

analysis of the written test required.

(f) The state board shall, by rule, specify the

examination scores the achievement of which shall

be required for the issuance of a professional

certificate and temporary certificates. Such

rules shall provide an alternative method by which

an applicant may demonstrate mastery of general

knowledge, including the ability to read, write,

or compute, shall define generic subject area

competencies, and shall establish uniform

evaluation guidelines. . .

(g) Provision shall be made for a person who

does not achieve the score necessary for certifi-

cation to review his or her completed examination

and bring to the attention of the department any

errors that would result in a passing grade.

(h) The department and the board shall maintain

confidentiality of the examination, developmental

materials, and workpapers, and the examination,

developmental materials, and workpapers shall be

exempt from the provisions of s. 119.07(1). This

exemption is subject to the Open Government Sunset

Review Act in accordance with s. 119.14. The board

shall adopt such rules as may be necessary to

accomplish this purpose.

52. The state board of education has adopted Rule 6A-4.0021, Florida

Administrative Code, to implement the foregoing statutory provisions. The rule

provides, in pertinent part, as follows:

(1) This rule governs the written examination

for teacher certification. Additional require-

ments for certification are specified in Chapter

6A-4, FAC.

(2) Description of the examination and com-

petencies to be demonstrated.

(a) The Florida Teacher Certification Exami-

nation shall be developed by the Commissioner

of Education.

(b) The written examination shall include

subtests of reading, writing, mathematics,

professional skills, and subject area specialty.

These subtests may contain multiple choice

questions and questions requiring the examinee

to write an answer or demonstrate a proficiency.

. . .

(3) Administration of the examination.

(a) The examination shall be administered by

a test administration agency or agencies under

contract with the Florida Department of Education.

(b) The examination shall be administered at

least four (4) times each year. The Commissioner

of Education shall establish examination dates

each year which may include supplemental test

administrations. The Commissioner of Education

shall designate the registration deadlines,

administration sites, and tests available for

the supplemental administrations.

(c) The examination shall be administered

at centers designated by the Commissioner of

Education. . . .

(7) Scoring of the reading, writing,

mathematics, and professional skills subtests.

(a) A passing score on each of the multiple-

choice subtests shall be a scaled score of at

least 200. . . .

(11) Score reports for the reading, writing,

mathematics, professional skills, and subject

area subtests.

(a) A properly authenticated score report

is defined as the original score report issued

directly by the test administration agency

without any qualification, reservation, or

irregularity.

(b) The examinee shall be sent two (2)

authenticated score reports as described in

Rule 6A-4.0021(11)(a), FAC. . . .

(c) Official documentation of scores earned

on each subtest of the examination for a temp-

orary or for a professional certificate shall

be the original authenticated score report as

described in Rule 6A-4.0021(11)(a), FAC., or a

duplicate authenticated score report as described

in 6A-4.0021(11)(e), FAC.

(d) Scores shall be reported as Pass or Fail

for each subtest of the examination. The

Commissioner of Education may provide additional

score information to the examinee.

(e) An examinee may obtain a duplicate

authenticated score report for a test

administration by filing a written request and

a fee. . . .

(12) Review

(a) An examinee who fails one (1) or more

subtests of the examination may file a written

request with the test administration agency for

handscoring of the reading, mathematics, English

language skills, subject area, or professional

skills subtest that was failed. . . .

(b) An examinee who fails one (1) or more

subtests of the examination may review each

subtest that was failed and bring to the Florida

Department of Education's attention any scoring

errors which may result in a passing score. . .

53. In the instant case, Petitioner did not receive a "properly

authenticated score report," as that term is used in Rule 6A-4.0021, Florida

Administrative Code, for the August 5, 1995, Subtest because there had been an

"irregularity" reported. The "irregularity" involved his alleged cheating on

the examination by copying answers from the answer sheet of another examinee.

54. Petitioner challenged the allegation that he had cheated on the August

5, 1995, Subtest and requested a formal Section 120.57 hearing on the matter.

55. The evidence adduced at the formal Section 120.57 hearing that was

held at Petitioner's request clearly and convincingly establishes that

Petitioner cheated on the August 5, 1995, Subtest, as alleged. 11/

56. Because of such cheating, the score he attained on the examination is

not a reliable and accurate measure of the extent of his mastery and knowledge

of the general teaching methods and strategies covered on the examination and

therefore it should be invalidated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

hereby

RECOMMENDED that the Department of Education enter a final order

invalidating the score that Petitioner attained on the August 5, 1995, Subtest

because he cheated on the examination by copying answers from the answer sheet

of another examinee.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of

January, 1996.

___________________________________

STUART M. LERNER, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January, 1996.

ENDNOTES

1/ Dr. Loewe testified as both a fact witness and as an expert in the

interpretation, analysis and evaluation of standardized tests in general and the

Florida Teacher Certification Examination in particular.

2/ Jackson, Johnson and Cadogan participated in a final, group review of the

Manual's contents on the morning of the August 5, 1995, Subtest.

3/ The last row was unoccupied.

4/ In making this finding, the Hearing Officer has considered, but rejected as

unworthy of belief in light of the more credible testimony to the contrary,

Petitioner's testimony that he did not engage in such conduct.

5/ Petitioner was close enough to Sauers' answer sheet to see the answers

Sauers had marked on the sheet.

6/ Earlier, during the administration of the Subtest, in accordance with the

provisions of the manual relating to "suspected cheating," Jackson had made a

written notation that Petitioner was suspected of copying from Sauers' answer

sheet.

7/ These statements contained varying amounts of detail, but were consistent

with one another.

8/ Typically, a high percentage of examinees taking the Subtest receive a

passing score.

9/ OIR, which serves as a conduit for communications between test site

administrators and the Department, provided Dr. Loewe with these documents.

10/ Ordinarily, a score report is mailed to the examinee and the Department's

Bureau of Teacher Certification.

11/ Where an otherwise qualified applicant for certification, registration or

licensure is preliminarily denied such certification, registration or licensure

by the licensing agency based upon alleged wrongdoing on the applicant's part,

the licensing agency bears the burden of proving such wrongdoing by clear and

convincing evidence. See Osborne Stern and Company v. Department of Banking and

Finance, Division of Securities and Investor Protection, 647 So.2d 245, 249

(Fla. 1st DCA 1994).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5127

The following are the Hearing Officer's specific rulings on the "findings

of fact" proposed by the Department in its proposed recommended order:

1-5. Accepted and incorporated in substance, although not necessarily

repeated verbatim, in this Recommended Order.

6. First and second sentences: Accepted and incorporated in substance;

Third and fourth sentences: Not incorporated in this Recommended Order because

they would add only unnecessary detail to the factual findings made by the

Hearing Officer.

7. First, second and sixth sentences: Not incorporated in this

Recommended Order because they would add only unnecessary detail to the factual

findings made by the Hearing Officer; Third, fourth and fifth sentences:

Accepted and incorporated in substance.

8. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

9. Accepted and incorporated in substance.

10. First and second sentences: Accepted and incorporated in substance;

Third sentence: Not incorporated in this Recommended Order because it would add

only unnecessary detail to the factual findings made by the Hearing Officer.

11-17. Accepted and incorporated in substance.

18. First and second sentences: Accepted and incorporated in substance;

Third sentence: To the extent that this proposed finding states that "Lowe and

Edwards [as opposed to Jackson and Edwards] consulted," it has been rejected

because it lacks sufficient evidentiary/record support. Otherwise, it has been

accepted and incorporated in substance.

19-20. Accepted and incorporated in substance.

21. First and second sentences: Accepted and incorporated in substance;

Third sentence: To the extent that this proposed finding states that the

referenced correspondence was dated August 16, 1995 (as opposed to August 10,

1995), it has been rejected because it lacks sufficient evidentiary/record

support. Otherwise, it has been accepted and incorporated in substance.

22. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

23. First, second and third sentences: Accepted and incorporated in

substance; Fourth sentence: Rejected as a finding of fact because it is more

in the nature of a summary of, and commentary upon, testimony adduced at hearing

than a finding of fact. See T.S. v. Department of Health and Rehabilitative

Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)("Hearing Officer's "factual

findings" which "merely summarize[d] the testimony of witnesses" were

"insufficient").

24. Rejected as a finding of fact because it is more in the nature of a

summary of, and commentary upon, testimony adduced at hearing than a finding of

fact.

25-26. Accepted and incorporated in substance.

27. Rejected as a finding of fact because it is more in the nature of

legal argument than a finding of fact.

28. First and third sentences: Accepted and incorporated in substance;

Second sentence: Rejected as a finding of fact because it is more in the nature

of legal argument than a finding of fact.

29. Rejected as a finding of fact because it is more in the nature of a

summary of, and commentary upon, testimony adduced at hearing than a finding of

fact.

30. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Remaining sentences: Accepted and incorporated in substance.

31. First sentence: Rejected because it lacks sufficient

evidentiary/record support; Second sentence: Rejected as a finding of fact

because it is more in the nature of a summary of testimony adduced at hearing

than a finding of fact. Third and fourth sentences: Accepted and incorporated

in substance.

32. Accepted and incorporated in substance.

33. First and second sentences: Not incorporated in this Recommended

Order because they would add only unnecessary detail to the factual findings

made by the Hearing Officer; Third sentence: Rejected as a finding of fact

because it is more in the nature of a summary of testimony adduced at hearing

than a finding of fact; Fourth sentence: Rejected because it lacks sufficient

evidentiary/record support.

34. First and third sentences: Accepted and incorporated in substance;

Second, fourth and fifth sentences: Rejected because they lack sufficient

evidentiary/record support.

35. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Second, third, fourth and fifth sentences: Accepted and incorporated in

substance; Sixth sentence: Not incorporated in this Recommended Order because

it would add only unnecessary detail to the factual findings made by the Hearing

Officer.

36. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Second and third sentences: Accepted and incorporated in substance; Fourth and

fifth sentences: Not incorporated in this Recommended Order because they would

add only unnecessary detail to the factual findings made by the Hearing Officer.

37. First sentence: To the extent that this proposed finding states that

Petitioner's score dropped, it has been accepted and incorporated in substance.

To the extent that it states that it dropped 15 (as opposed to 17) points, it

has been rejected because it lacks sufficient evidentiary/record support;

Second sentence: Accepted and incorporated in substance.

38. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Second sentence: Accepted and incorporated in substance.

39. Accepted and incorporated in substance.

40. First sentence: Rejected as a finding of fact because it is more in

the nature of argument regarding the sufficiency of the evidence adduced at

hearing to prove the allegations of cheating made against Petitioner; Second

sentence: Accepted and incorporated in substance; Third sentence: To the

extent that this proposed finding states that Petitioner's score "should not

count," it has been rejected as a finding of fact because it is more in the

nature of legal argument. Otherwise, it has been accepted and incorporated in

substance.

COPIES FURNISHED:

Rochard Lamothe

4951 Rothschild Drive

Coral Springs, Florida 33067

Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Frank T. Brogan

Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

Barbara J. Staros

General Counsel

Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period of time within which to

submit written exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.