02-004759 Broward County School Board vs. Harriet Parets Status: Closed Recommended Order on Thursday, July 31, 2003.

Summary: Respondent deviated from scripted comments and assisted students during FCAT examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4759

)

HARRIET PARETS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e a formal hearing was held in this case

on May 19 - 20, 2003, in Fort Lauderdale, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Aaron Behar, Esquire

Panza, Maurer & Maynard, P.A.

3600 North Federal Highway

Bank of America Building, Third Floor

Fort Lauderdale, Florida 33308

F or Respondent: Mark J. Berkowitz, Esquire

Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, Harrie t Parets, should be suspended

from her employment for a period of 30 days based upon a

violation of testing protocols in administering the Florida

Comprehensive Assessment Test (FCAT).

PRELIMINARY STATEMENT

This case began on March 15, 2002, when the Peti tioner,

Broward County School Board (Petitioner or Board), commenced an

investigation of allegations regarding the Respondent's conduct

during FCAT testing. The Petitioner issued a Notice of

Investigation to Respondent to advise her of the pending

investi gation. At the same time the Respondent was placed on

administrative leave, with pay, pending the outcome of the

investigation.

Various individuals were interviewed regarding the

allegation that the Respondent had assisted students or violated

testing pr otocols in her classroom while they took the FCAT

examination. At the conclusion of the investigation, school

administrators determined the Respondent's class results would

be invalidated. Additionally, disciplinary action against the

Respondent was comm enced.

At all times material to this case, the Respondent has

maintained she followed proper test protocols and did nothing to

influence the students as they took the FCAT. The Respondent

claimed that she used the same testing technique for this exam

as she had on prior occasions. The Respondent disputed the

necessity to invalidate the scores. The Respondent timely

challenged the disciplinary action and sought an administrative

review of the allegations. The matter was forwarded to the

Division of Admi nistrative Hearings for formal proceedings on

December 10, 2002.

At the request of the parties the case was continued on two

occasions. A last request for continuance filed by the

Respondent was denied. The Petitioner's Motion for Summary

Final Order a nd Motion to Strike were also denied. A Request

for Judicial Notice (treated as a Request for Official

Recognition) was granted.

The case ultimately came to hearing on May 19 - 20, 2003. At

that time, the Petitioner presented testimony from students, a

tes t proctor, and other school personnel. The Respondent

testified on her own behalf and presented additional comments

from a parent. The transcript of the proceedings, filed with

the Division of Administrative Hearings on June 18, 2003, more

fully document s the names of the persons who testified in this

cause.

The transcript also itemizes the exhibits that were offered

and received into evidence. The parties timely filed Proposed

Recommended Orders that have been fully considered in the

preparation of thi s order.

FINDINGS OF FACT

1. The Petitioner, is responsible for the administration

and operation of all public schools within the Broward County

School District. As such, its authority covers personnel and

employment including the discipline of its tea chers.

2. At all times material to the allegations of this case,

the Respondent, Harriet Parets, was employed as an elementary

school teacher in the Broward County School District.

3. The Respondent holds Florida Educator's Certificate

Number 592721. Her certificate covers the areas of elementary

education and English for Speakers of Other Languages. It is

valid through June 30, 2008.

4. Prior to the incidents complained of in this cause, the

Respondent taught in the Broward County School District w ithout

discipline for six years. The Respondent was in her seventh

year with the system when the allegations of this case arose.

5. The Respondent had administered the FCAT on five prior

occasions.

6. During the 2002 school year the Respondent was assig ned

to teach fourth grade at McNab Elementary School (McNab). Her

class was scheduled to take the FCAT on March 11 - 13, 2003.

7. Prior to the dates of testing, teachers at McNab were

instructed to view a resource video. The video instructed and

directe d the teachers in the administration of the FCAT. It

included information not previously addressed by the video.

8. Additionally, teachers at McNab were provided testing

procedures to guide the administration of the FCAT. Teachers

were to follow specifi cally worded texts in the directions

provided to their students. A verbatim reading of the text was

required by the FCAT testing protocols. Additional comments

outside the text were prohibited.

9. Teachers at McNab were advised of the importance of the

FCAT results, the requirement of adhering to the testing

protocols, and the opportunities available to the school should

McNab students perform well on the FCAT.

10. In fact, as McNab had received an "A" rating in the

past (following good FCAT results), the school had received

special funding tied to that performance.

11. In connection with the FCAT testing at issue herein,

McNab administrators took precautions to provide test

administrators with the schedule of the exam dates, the

materials needed to a dminister the test, and training in the

proper administration of the FCAT. Testing protocols were

reviewed.

12. Proctors also received training regarding the

administration of the exam. Each class was assigned a proctor

along with the teacher who was primarily responsible for the

test administration.

13. In this case, the proctor and several students

verified comments from the Respondent that deviated from the

scripted instructions.

14. Contrary to the scripted instructions the Respondent

looked at the students' test booklets, told more than one

student to re - exam their work for errors, and pointed out a

wrong answer. The Respondent announced to the class as a whole

that she was "seeing a lot of wrong answers."

15. The Respondent was not authori zed to make comments

during the administration of the test. More important the

Respondent was not permitted to assist by any means the students

who were taking the FCAT.

16. The Respondent admitted that she did not watch the

FCAT training video (known in this record as the BECON video).

The Respondent knew or should have known that she had been

directed to watch the video.

17. The Respondent admitted that she made comments to

students that were beyond the scripted instructions provided in

the teacher's testing manual.

18. The issues of the Respondent's comments to the class

and the level of assistance she had provided to students came to

light when a student told her mother of the Respondent's

conduct. The mother then contacted a school administrator t o

make the alleged improprieties known.

19. After determining that the Respondent had assisted

students in her class, administrators invalidated the test

results from the Respondent's class.

20. As a result of the invalidation, the school did not

have a sufficient number of test results to qualify as an "A"

performing school under the state guidelines. Had the results

from the Respondent's class been included, the school might have

qualified and received recognition as it had in the past.

21. Following the investigation of the case, the school

district superintendent recommended that the Respondent be

terminated from her employment.

22. After hearing comments on the matter, the Petitioner

took the action at issue herein, the suspension without pay for

3 0 days. The Respondent timely challenged that proposed action.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.569, Florida Statutes.

24. The P etitioner bears the burden of proof in this case

to establish by a preponderance of the evidence the allegations

against the Respondent. It has met that burden.

25. Section 230.23, Florida Statutes, authorizes the

Petitioner to suspend or dismiss employ ees of the school

district.

26. Section 228.301, Florida Statutes, governs FCAT

security and prohibits anyone from coaching students or

assisting them in any manner in the administration of the exam.

27. Additionally, Rule 6A - 10.042, Florida Administrat ive

Code, prohibits interfering with "in any way" persons who are

taking the FCAT in order to assist their performance. Clearly,

the Respondent inappropriately assisted students in her

classroom. Had she watched the BECON video or more closely read

the F CAT manual, she would have known that the comments and

actions she made were inappropriate. The importance of test

security was well known to all teachers.

28. By deciding to only suspend the Respondent (as opposed

to dismissal), the Petitioner has rec ognized her past

contribution to the school district. That the Respondent blames

others for her violation of testing protocols is regrettable.

The Petitioner has established that the Respondent violated

testing protocols and should be disciplined.

RECOM MENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board

enter a final order suspending the Respondent without pay for a

period of 30 days. Further, before being permitted to

administ er the FCAT again, the Respondent should be required to

complete a training course in the administration of the exam,

including all testing protocols.

DONE AND ENTERED this 31st day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSot o 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 31st day of July, 2003.

COPIES FURNISHED :

Mark J. Ber kowitz, Esquire

Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

Mark A. Emanuele, Esquire

Panza, Maurer, Maynard & Neel, P.A.

3600 North Federal Highway

Bank of America Building, Third Floor

Fort Lauderdale, Fl orida 33308

Dr. Franklin L. Till, Jr.

Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Daniel Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Ta llahassee, 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.