00-004352PL Charlie Crist, As Commissioner Of Education vs. Cheryl Mulhearn Status: Closed Recommended Order on Friday, April 20, 2001.

Summary: Respondent did not assist her students with answers to Florida Comprehensive Assessment Test questions; she failed to follow the established testing schedule but did not violate statutes or rules by doing so.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER )

OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 00-4352PL

) AMENDED AS TO THE COPIES

CHERYL MULHEARN , ) FURNISHED LIST

)

Respondent. )

_________________________________)

AMENDED RECOMMENDED ORDER

A formal hearing was conducted in this case on March 12,

2001, in Mary Esther, Florida, before the Division of

Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner : J. David Holder, Esquire

24357 U.S. Highway 3315

Santa Rosa Beach, Florida 32459

For Respondent : Mary Aspros, Esquire

Thomas W. Brooks, Esquire

Meyer & Brooks

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Sections

231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and

Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative

Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about August 21, 2001, Petitioner Tom Gallagher, as

Commissioner of Education (Petitioner) issued an Administrative

Complaint against Respondent Cheryl Mulhern (Respondent). Said

complaint alleged that Respondent violated testing procedures

when she failed to follow a testing schedule and when she

assisted her students with correct answers to test questions.

On September 26, 2000, Respondent filed an Election of

Rights form. Petitioner referred this case to the Division of

Administrative Hearings on October 24, 2000.

A Notice of Hearing dated November 14, 2000, scheduled the

case for hearing on January 17, 2001. Subsequently,

Administrative Law Judge Charles C. Adams granted two unopposed

motions for continuance.

The hearing commenced on March 12, 2001. Petitioner

presented the testimony of seven witnesses. Petitioner offered

nine exhibits, eight of which were admitted into evidence.

Respondent testified on her own behalf and offered no exhibits.

The Transcript of the proceeding was filed on March 21,

2001. Petitioner and Respondent filed their Proposed

Recommended Orders on March 30, 2001.

FINDINGS OF FACT

1. Respondent holds Florida educator's certificate

No. 539913. This certificate authorizes Respondent to teach

art, early childhood education, and elementary education.

Respondent's certificate is valid through June 30, 2002.

2. Respondent has thirteen years of experience as a

certified fifth-grade teacher at Florosa Elementary School in

Okaloosa County, Florida. At the time of the hearing, the

Okaloosa County School District employed Respondent under a

continuing contract.

3. The Florida Comprehensive Assessment Test (FCAT)

currently is administered to third, fourth, and fifth grade

students once each year. The test is designed to determine

whether students meet certain academic levels in Florida's

Sunshine State Standards, which range from level 1 as the lowest

below-average score to level 5 as the highest above-average

score. The test is also used to provide a "report card" for

each school, based upon the number of students who score level 3

or above. At all times relevant here, student performance on

the FCAT had no positive or negative consequences for individual

teachers.

4. Respondent participated in the administration of the

FCAT in 1998 as a field test. Neither the school nor the

students received the test results in 1998. Respondent also

participated in administrating the FCAT in 1999 , the first year

that fifth-grade students received their scores.

5. Susan Lowery was the school district's Director of

Student Services for the 1998-1999 school term. Ms. Lowery's

position included serving as the district's Director of

Assessment Testing. As such, she was responsible for ensuring

that each school site followed correct testing procedures.

6. Prior to the administration of the FCAT in 1999,

Ms. Lowery attended training sessions at the state level to

learn the proper testing procedures for the FCAT. Upon her

return to the district, Ms. Lowery trained the individual school

test coordinators on the FCAT testing procedures.

7. Sonia Weikel was the school counselor at Florosa

Elementary School for the 1998-1999 school year. Her duties

included serving as the school's testing coordinator.

Ms. Weikel first participated in Ms. Lowery's FCAT training

session then conducted a training session at Florosa Elementary

School for all the classroom teachers, including Respondent.

8. During her FCAT training ses sion for the 1998-1999

school year, Ms. Weikel explained to Respondent and her

colleagues that they could answer questions concerning test

instructions but they were not to assist students in answering

questions on the test. Specifically, the classroom teachers

were not supposed to interfere with the natural responses of the

children during the test.

9. Ms. Weikel directed the teachers to inform the students

of the test schedule, and the specific start and stop times.

This was necessary because the fifth-grade test consisted of two

45-minute sessions on the morning of the first day and two 40-

minute sessions on the morning of the second day. A short break

between the two test sessions was also scheduled. However, if

all the students finished a particular test session in less than

the allotted time, the break time for an individual class could

be adjusted as long as testing in other classrooms was not

disrupted.

10. Ms. Weikel instructed the teachers to maintain test

security by making sure that students did not look at each

other's test booklet. The students' desks were supposed to be

at least three feet apart.

11. Ms. Weikel told the teachers to make sure that the

students were working in the correct test booklet. As the

teachers scanned the room, they were advised to ensure that the

students were following prescribed directions.

12. During the training session, the teachers were

reminded that it was a crime to interfere with a student's

responses. This information was contained in the testing manual

and the security paper that individual teachers, including

Respondent, were required to sign. 1 See Section 228.301, Florida

Statutes, and Rule 6A-10.042, Florida Administrative Code.

13. Ms. Weikel used a hand-out containing an outline of

the testing procedures for the 1998-1999 FCAT. The outline

stated as follows in relevant part:

TEST SECURITY-PROHIBITED ACTIVITIES:

1. Copying or reading the student responses

during testing or after testing.

2. Mishandling of secure material--Breaks

in number codes, Destruction of materials.

3. Reading test items.

4. Interpreting a test passage or item from

the test.

The outline also reminded the teachers to read certain pages in

the testing manual regarding test modifications for special

students and test booklet directions.

14. Sometime prior to Ms. Weikel's training session, the

teachers at Florosa Elementary School were given a copy of the

testing manual. This was done so that the teachers could

familiarize themselves with the specific testing procedures and

student instructions set forth by the developers of the FCAT. 2

15. Based on the instructions she received from

Ms. Weikel, and after having read the teacher's instructions in

the testing manual, Respondent understood that she was

responsible for the following: (a) circulating around the room

to ensure that the children were working in the right section;

(b) making sure that the students followed and understood the

test and the test instructions; (c) making sure that the

students were bubbling in the answers in the correct manner and

not indiscriminately; (d) ensuring that a student was not

falling too far behind other students; (e) making sure that a

student was not spending too much time on one item; and (f)

ensuring that a student was not hurrying through the test.

16. Each classroom was assigned a parent volunteer to act

as a proctor for the 1998-1999 FCAT. Kimberly Clark was the

proctor assigned to Respondent's classroom. Ms. Clark assisted

Respondent in administering the FCAT on the first day,

February 2, 1999, and for the first 40-minute test session on

February 3, 1999.

17. Some of Respondent's students requested assistance as

Respondent circulated around her classroom during the test on

February 2, 1999, and during the first test session on

February 3, 1999. Respondent told the students that she could

not help on the test. However, she verbally encouraged the

students with comments such as "you can do it," "go ahead," "go

back and reread it."

18. Respondent used non- verbal cues when communicating

with students during the test. These cues included gesturing

and pointing with her hands to redirect the students to the test

booklet. In addition to gesturing with her hands, Respondent

would nod her head when encouraging students and shake her head

when telling students that she could not help them.

19. On a few occasions, Respondent pointed toward a

particular question in the booklet that some students had

inadvertently passed over because of its placement on the page.

The question was small in size and placed at the top of the

page. The remainder of the page was filled entirely by another

question. Respondent circulated in the room and alerted several

students to the question that was skipped, telling them to go

back and not skip it.

20. A new student was placed in Respondent's class on or

about February 3, 1999. This student had never taken the FCAT

and was not prepared to take it on the date in question.

Throughout the administration of the FCAT, this student would

frequently close his test booklet and stop working. Respondent

used verbal and non-verbal means of communication, repeatedly

telling the student to go back in his book, to reread the

questions, and keep working.

21. Prior to the break in testing between the two 40-

minute test sessions on February 3, 1999, Ms. Weikel visited

Respondent's classroom several times, observing no testing

irregularities. On each such occasion, Ms. Clark signaled to

Ms. Weikel that everything was fine.

22. On February 3, 1999, Ms. Weikel visited Respondent's

classroom during a time that appeared to be an early break

between the two 40-minute test sessions. Ms. Clark informed

Ms. Weikel that everyone had finished the test and that the

proper times had been observed.

23. Respondent did not post the stop and start times for

the test on the blackboard as required by the testing manual.

Instead, she posted the testing schedule on a legal size paper.

She also wrote "10 minutes" and "5 minutes" on the blackboard as

appropriate to remind her students of the time remaining to

complete each test session.

24. Respondent knew that the children could not rely on

the school clocks to follow the prearranged test schedule

because the clocks were not synchronized. Therefore, she used

an egg timer to time the FCAT test sessions, ensuring that her

students would be provided the correct amount of time to

complete the FCAT.

25. If students are not allowed the correct amount of time

for a section of the test, their tests must be invalidated.

None of the tests in Respondent's class were invalidated for

timing irregularities. Additionally, none of the tests in the

surrounding classes were compromised because Respondent's class

started or stopped a testing session a few minutes earlier than

scheduled.

26. While Ms. Weikel was visiting Respondent's classroom

during the break between the two 40-minute test sessions on

February 3, 1999, Ms. Clark reported a suspicion that Respondent

appeared to be assisting students on the test. Ms. Clark's

suspicions were based on her observations of the physical

movements and gestures of Respondent.

27. Assisting a student with a question on the FCAT is

considered cheating. Such assistance would require invalidation

of the student's test. None of the tests in Respondent's class

were invalidated for cheating.

28. After hearing Ms. Clark express her suspicions,

Ms. Weikel sought the assistance of Kathleen Ball, the assistant

principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly.

Ms. Ball then decided to relieve Ms. Clark of her duties and to

serve as Respondent's proctor for the last 40-minute test

session.

29. When Ms. Ball entered Respondent's classroom,

Respondent informed Ms. Ball about the question that several

students had overlooked at the top of one page. Respondent told

Ms. Ball that she had told the students to go back to the

question. 3

30. Ms. Ball stood in the back of Respondent's class when

the testing resumed. Ms. Ball observed Respondent walk up to a

student's desk and bend over, putting one hand on the back of

his chair and one hand flat on his desk. Respondent gave the

appearance that she was reading a test question. Ms. Ball

approached Respondent and said, "Ms. Mulhearn, we're not allowed

to read the test questions on standardized testing." Respondent

then left the area, stopped circulating among the students, and

went to sit at the front of the room for the duration of the

test.

31. During the hearing, Ms. Weikel testified that it was

appropriate for a teacher to point out a question that a student

had overlooked or skipped on the test. According to Ms. Weikel,

the FCAT testing procedures have been tightened considerably in

recent years, with increased restrictions on the amount of

assistance that teachers can give to students.

32. During the hearing, Ms. Ball testified that it is

recommended for a teacher to circulate during a test to make

sure the students are moving through the test and not stopping

and spending too much time on one item. According to Ms. Ball,

if a child spends too much time on one question, the teacher

should tell the child to keep working or not to stop.

Respondent's expert, Rebecca Spence, Okaloosa County School

District's Chief of Human Resources, expressed a similar

opinion.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

34. Petitioner must prove by clear and convincing evidence

that Respondent failed to follow the prescribed testing schedule

and assisted her students with correct answers to questions in

violation of Sections 231.28(1)(c) and 231.28(1)(i), Florida

Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a),

Florida Administrative Code. Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

35. Section 231.28(1), Florida Statutes (1997), states as

follows in relevant part:

(1 ) The Education Practices Commission

shall have authority to suspend the teaching

certificate of any person as defined in s.

228.041(9) or (10) for a period of time not

to exceed 3 years, thereby denying that

person the right to teach for that period of

time, after which the holder may return to

teaching as provided in subsection (4); to

revoke the teaching certificate of any

person, thereby denying that person the

right to teach for a period of time not to

exceed 10 years, with reinstatement subject

to the provisions of subsection (4); to

revoke permanently the teaching certificate

of any person . . . or to impose any other

penalty provided by law, provided it can be

shown that such person:

* * *

(c ) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(i ) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules . . . . 4

36. Section 228.301, Florida Statutes (1997), states as

follows in pertinent part:

(1 ) It is unlawful for anyone knowingly and

willingly to violate test security rules

adopted by the State Board of Education or

the Commissioner of Education for mandatory

tests administered by or through the State

Board of Education or the Commissioner of

Education to students . . . or, with respect

to any such test, knowingly and willfully

to:

* * *

(c ) Coach examinees during testing or alter

or interfere with examinees' responses in

any way;

* * *

(2 ) Any person who violates this section is

guilty of a misdemeanor of the first degree,

punishable by a fine of not more than $1,000

or imprisonment for not more than 90 days,

or both.

37. Rule 6A-10.042, Florida Administrative Code, provides

as follows in relevant part regarding maintenance of test

security:

(1 ) Test implemented in accordance with the

requirements of Sections 229.053(2)(d),

229.57, 231.087, 231.0861(3), 231.17,

233.011, 239.301(10), 240.107(8), and

240.117, Florida Statutes, shall be

maintained and administered in a secure

manner such that the integrity of the tests

shall be preserved.

* * *

(c ) Examinees shall not be assisted in

answering test questions by any means by

persons administering or proctoring the

administration of any test.

(d ) Examinees' answers to questions shall

not be interfered with in any way by persons

administering, proctoring, or scoring

examinations.

* * *

(2 ) Persons who are involved in

administering or proctoring the tests or

persons who teach or otherwise prepare

examinees for the tests shall not

participate in, direct, aid, counsel, assist

in, or encourage any activity which could

result in the inaccurate measurement or

reporting of the examinees' achievement.

38. Rule 6B-1.006, Florida Administrative Code, states as

follows in pertinent part:

(1 ) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2 ) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3 ) Obligation to the student requires that

the individual:

(a ) Shall make a reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(5 ) Obligation to the profession of

education requires that the individual:

(a ) Shall maintain honesty in all

professional dealings.

39. Rule 6B-4.009(6), Florida Administrative Code, states

as follows in pertinent part:

(6 ) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

40. In this case, the evidence is not clear and convincing

that Respondent is guilty of violating Sections 231.28(1)(c) and

231.28(1)(i), Florida Statutes (1997), or Rules 6B-1.006 (3)(a)

and 6B-1.006(5)(a), Florida Administrative Code. Respondent did

not assist her students with answers to test questions or

interfere in any way with the children's natural responses to

test questions.

41. Respondent did not make any attempt to conceal her

actions during the test from Ms. Clark, Ms. Weikel, or Ms. Ball.

She candidly told Ms. Ball prior to the last test session that

several of the children had overlooked one poorly placed test

question in particular. Ms. Ball did not take that opportunity

to inform Respondent that it was inappropriate to point out

skipped test items.

42. Respondent, like Petitioner's witnesses, believed it

was appropriate to encourage the children to keep working when

they fell behind and to tell them to reread questions that were

overlooked. If it was inappropriate for Respondent to use

verbal and/or non-verbal cues to tell students that she could

not provide them with answers or to encourage them to keep

working or to point out an overlooked question, the instructions

received during Ms. Weikel's training session should have been

more explicit.

43. At the most, Respondent may have inadvertently read

some of the test items as she circulated the room to ensure that

the students were not falling behind, working in the wrong

section of the test booklet, or bubbling in answers

indiscriminately. However, Respondent was not charged with

violating test security by reading the test items.

44. Respondent admits that she did not strictly follow the

established testing schedule. The method she used to time the

test sessions and to keep the children advised of the time

limitations was more than reasonable under the circumstances.

Moreover, there is no persuasive evidence that Respondent's

students or any other children in neighboring rooms suffered any

harmful effects as a result of Respondent's class starting test

sessions or taking breaks a few minutes early.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Education Practices Commission dismiss the

Administrative Complaint.

DONE AND ENTERED this 27th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April, 2001.

ENDNOTES

1/ A copy of the security paper, without Respondent's signature

was offered for admission into evidence. Respondent admitted

that she was aware of the applicable criminal statute and rule

prohibiting her from assisting her students with answers to test

questions.

2/ The FCAT testing manual was not offered for admission into

evidence.

3/ Neither Ms. Weikel nor Ms. Ball thought it was appropriate

to review the test booklet in February 1999 to determine whether

the question at the top of the page was potentially misleading

in its placement. A copy of the test booklet was not offered

for admission into evidence.

4/ This section is currently renumbered as Section 231.2615(1),

Florida Statutes.

COPIES FURNISHED:

J. David Holder, Esquire

24357 U.S. Highway 3315

Santa Rosa Beach, Florida 32459

Mary Aspros, Esquire

Thomas W. Brooks, Esquire

Meyer & Brooks

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief

Bureau of Educator Standards

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.