03-002382PL Charlie Crist, As Commissioner Of Education vs. Betty N. Goggins Status: Closed Recommended Order on Thursday, November 20, 2003.

Summary: Respondent failed to follow appropriate standardized test procedures, and therefore her certificate should be placed on probation for a period of five years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2382PL

)

BETTY N. GOGGINS, )

)

Respondent. )

)

RECOMMENDED OR DER

A formal hearing was conducted in this case on October 17,

2003, in Lake City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: William B. Graham, Esquire

Ginger L. Barry, Esquire

McFarlain & Cassedy

305 South Gadsden Street

Tallahassee, Florida 32301

For Respondent: Betty N. Goggins, pro se

1291 East Camp Street

Lake City, Florida 32025

STATEMENT OF THE ISSUES

The issues are whether Respondent violated standardized

testing procedures while proctoring the SAT - 9 Test for her first

grade class, and if so, what penalty should be impos ed.

PRELIMINARY STATEMENT

On December 17, 2002, Charlie Crist, as Commissioner of

Education (Petitioner) issued an Administrative Complaint

against Respondent Betty N. Goggins (Respondent). The complaint

alleged that Respondent had violated standardized testing

procedures while proctoring the SAT - 9 Test for her first grade

class in violation of Sections 231.2615(1)(i) and

231.2615(1)(c), Florida Statutes (2002), and Florida

Administrative Code Rules 6B - 1.006(3)(a), 6B - 1.006(4)(b),

6B - 1.006(5)(a), and 1.0 06(5)(h).

Respondent requested a formal hearing but thereafter

withdrew that request, proceeding instead with an informal

hearing before the Education Practices Commission (EPC) on

May 29, 2003. During the informal hearing, it became apparent

that the case presented disputed issues of material fact.

Accordingly, the informal hearing was terminated so that the

case could be referred to the Division of Administrative

Hearings.

The EPC referred the case to the Division of Administrative

Hearings on Jun e 27, 2003.

A Notice of Hearing dated July 7, 2003, scheduled the

hearing for September 5, 2003.

When the hearing commenced on September 5, 2003, Petitioner

requested a continuance based upon the unavailability of a

witness. Administrative Law Judge Charles C. Adams granted the

request. That same day, Judge Adams issued an Order

rescheduling the hearing for September 24, 2003.

On September 16, 2003, Respondent filed a letter requesting

that the hearing date be changed due to a scheduling conflict .

Judge Adams issued an Order dated September 18, 2003,

rescheduling the hearing for October 17, 2003.

Subsequently, the Division of Administrative Hearings

designated the undersigned as the Administrative Law Judge to

conduct the formal hearing.

Du ring the hearing, Petitioner presented the testimony of

three witnesses and offered three exhibits that were accepted

into evidence. Respondent testified on her own behalf and

offered one exhibit that was accepted into evidence.

A transcript of the proce eding was filled on November 4,

2003. Petitioner filed a Proposed Recommended Order on

November 14, 2003. As of the date of the issuance of this

Recommended Order, Respondent has not filed proposed findings of

fact and conclusions of law.

FINDINGS OF F ACT

1. Respondent holds Florida Educator Certificate

No. 467712, covering the area of Elementary Education. Her

certificate is valid through June 30, 2007.

2. Respondent has been a public school teacher in Florida

for 21 years. During that time, she has worked as a classroom

teacher in fifth and first grades at four different schools. At

all times material here, Respondent was a first grade teacher at

Niblack Elementary School (Niblack) in Columbia County, Florida.

3. Respondent was the curriculum resource teacher at

Niblack for the 2000/2001 school term, the first year Niblack

was established. She helped organize the new school, selecting

textbooks and other school materials. She assisted in the

development of school improvement plans and the cre ation of the

Parent Teacher Organization.

4. Respondent worked long hours beyond the normal school

hours to ensure the success of Niblack as a neighborhood school.

She had good report with the parents and the community. After

her first year at Niblack , Respondent returned to the classroom

as a first grade teacher because she missed being with the

children.

5. Prior to the incident at issue here, Respondent has

never been the subject of any disciplinary action. She has

always received positive teach er evaluations. For the school

years 1999/2000, 2000/2001, and 2001/2002, Respondent's

evaluations reflect that she met or exceeded expectations.

6. When school began in the Fall of 2001, Nikki Crawford

was the paraprofessional assigned to work with t he first grade

students at Niblack. In the first week of classes, a conflict

arose between Ms. Crawford and some of the first grade teachers,

including Respondent. The initial conflict involved the

scheduling of Ms. Crawford's time in each of the first g rade

classrooms.

7. Eventually, Mark Crutcher, Niblack's Principal, and

personnel at the school district level had to intervene in order

to resolve the conflict. The purpose of the intervention was to

clarify that the teachers and not Ms. Crawford were in control

of the classrooms.

8. The SAT - 9 is a standardized test that is used to

evaluate student performance. The staff at Niblack uses the

test results as a guide to determine what the students learned

over the past year, how they compared to othe r students

nationally, and where the students should be placed the

following school year. The test results do not benefit an

individual teacher personally or professionally. The school

does not receive a grade or funding based on the test results.

9. The administration of the SAT - 9 in the first grade is

the first time that students at Niblack experience a

standardized test. For the 2001/2002 school year, the test was

administered in April 2002.

10. The SAT - 9 is a secure test that requires teachers a nd

proctors to undergo training on test procedures. Amber Todd,

Niblack's guidance counselor and testing coordinator, provided

that training for the 2001/2002 school term.

11. During the training, Ms. Todd gave Respondent a copy

of the state statutes go verning testing procedures. On or about

April 5, 2002, Respondent signed a document indicating that she

had received a copy of the test security requirements for the

2001/2002 administration of the SAT - 9.

12. Ms. Todd gave Respondent a document outlining the

general testing procedures at Niblack. The document explained

the mechanics of distributing and returning the tests to the

guidance counselor's office. In regard to test preparation, the

document listed spatial seating as one of several topics. The

topics relating to procedures during testing included, but were

not limited to, cheating and disruptive behavior. The document

did not reference appropriate or inappropriate communication

between teachers and students during the test.

13. Ms. Todd gave Respondent a photocopy of the test

security page out of the test manual but did not give her a copy

of the test manual. However, Ms. Todd informed Respondent that

she could review the manual in Ms. Todd's office.

14. Respondent had prior experience in administering the

SAT - 9. She did not take advantage of the opportunity to review

the test manual in Ms. Todd's office prior to the test in April

2002.

15. Ms. Todd informed Respondent that the desks in the

classroom needed to be separated. Ms. Todd and the test manual

directed Respondent to read the script in the manual verbatim

and to strictly follow the time allowed for each test section.

16. Finally, Ms. Todd told Respondent and Ms. Crawford

that they had discretion to redirect students but not to coach

them. Respondent and Ms. Crawford could tell students to stay

in their seats, to stop talking, and to pay attention. Teachers

and proctors were allowed to tell students they were working in

the wrong section, to erase the answers in the wrong s ection,

and to go back to the correct section.

17. Ms. Crawford was assigned to proctor the SAT - 9 in

Respondent's class in April 2002.

18. When the test began, Respondent had not separated all

of the students' desks. With the exception of a couple o f desks

that had been moved to one side, the desks were arranged in the

normal classroom configuration with desks touching in groups of

threes. The only other change in the classroom was that the

seating location of some students had been rearranged.

19 . Respondent did not separate the desks because she

wanted room to walk between the students during the test. The

classroom was small and crowded with 18 desks. However, the

most persuasive evidence is that Respondent did not make an

effort to separate the desks to the extent possible.

20. When Respondent began the first section of the test,

she read the script of the instructions to her students. She

read the sample question, which was in a story format, and the

multiple choice answers as required. Pursuant to the test

instructions, Respondent had to direct some of the students to

erase their answers to the sample question and to mark the

correct answers.

21. Respondent then deviated from the script by reading

aloud the first part of the first te st question and telling the

students to put their finger where the question began. She did

not read the answers to the first question. Respondent did not

improperly read any other portion of the test.

22. Respondent was responsible for timing each sec tion of

the test. At one point during the test, Ms. Crawford asked

Respondent how long the students had to finish a test section.

Respondent replied that they had until 9:20 a.m. Ms. Crawford's

testimony that Respondent began the timed test at 8:54, all owing

the students an extra 6 minutes to complete the section is not

persuasive.

23. Students are not allowed to work on test sections that

are not being timed. In other words, if a student begins to

work in section 2 while section 1 is being timed, the teacher

and the proctor should tell the student to erase his or her

answers in section 2 and go back to work on section 1.

24. During the test, Ms. Crawford informed Respondent that

a student named Tyler was working in the wrong section.

Respondent th en told Tyler to go back to the section she should

have been working on. Respondent's communication with Tyler was

not improper according to the training provided by Ms. Todd.

Ms. Crawford also had to redirect a couple of Respondent's

students to erase t heir answers in the wrong section of the test

and to begin working in the correct test section.

25. A second student named Latrice put her head on her

desk and closed her booklet within five minutes after a timed

test began. Respondent did not believe Latrice could not have

finished the test so quickly. Respondent picked up and opened

Latrice's booklet. Respondent told Latrice that she could not

possibly be finished and needed to go back and check her

answers. Respondent also told Latrice she must ha ve some of the

answers wrong.

26. Respondent made this statement to Latrice without

actually checking to see if any of her answers were wrong. Even

so, Respondent's communication with Latrice was inappropriate.

If Latrice had finished the test and clo sed her booklet,

Respondent should have taken the booklet without telling Latrice

that she needed to keep working because she must have some of

the answers wrong.

27. After the test, Ms. Crawford informed Ms. Todd that

Respondent had violated the readin g portion of the SAT - 9 test

procedures by failing to separate the desks, by failing to

properly time the test on one section, by failing to follow the

script, and by improperly coaching two students. Ms. Todd then

informed Mr. Crutcher about the allegatio ns of improper test

procedures.

28. The Columbia County School District decided to

invalidate the reading portion of the SAT - 9 test for

Respondent's first grade class. They did not invalidate the

math portion of the test. The school district then admi nistered

a substitute reading test to the students.

29. The Columbia County School District subsequently

suspended Respondent without pay from May 21, 2002, through

May 28, 2002. Respondent transferred to another Columbia County

school for the 2002/200 3 school term. As of the date of the

hearing, Respondent continued to be employed by the Columbia

County School District.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

pr oceeding pursuant to Sections 120.569, 120.57(1), and

1012.796(6), Florida Statutes (2003).

31. Petitioner has the burden of proving the allegations

in the Administrative Complaint by clear and convincing

evidence. See Ferris v. Turlington , 510 So. 2d 2 92 (Fla. 1987).

32. Section 228.301, Florida Statutes (2001), which

relates to test security in effect for the 2001/2002 school

year, stated as follows in relevant part:

(1) It is unlawful for anyone knowingly and

willfully to violate test security ru les

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 administered

by school districts pursuant to Sect ion

229.57, Florida Statutes, 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;

* * *

(f) Fail to follow test administration

directions specified in the test

administration manuals; or

(g) Participate in, direct, aid, counsel,

assist in, or encourage any of the acts

prohibited in this section.

(2) Any person who violates this section is

guilty of a misdemeanor of the first degree,

puni shable by a fine or not more than $1,000

or imprisonment for not more than 90 days,

or both.

33. Florida Administrative Code Rule 6A - 10.042, relating

to maintenance of test security, states as follows in pertinent

part:

(1) Tests implemented in accord ance with he

requirements of Sections . . . 229.57, . . .

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 q uestions 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 the

examinations.

* * *

(f) Per sons 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 measu rement or

reporting of the examinees' achievement.

34. Although the incidents referred to in the

Administrative Complaint took place when Florida Statutes 2001

were in effect, the Administrative Complaint alleged that

Respondent violated Sections 231.261 5(1)(c) and 231.2615(1)(i),

Florida Statutes (2002). Prior to the effective date of Florida

Statutes (2000), these statutes, in substantially the same form,

were located in Section 231.28, Florida Statutes (1999). They

are currently located in Section 10 12.795, Florida Statutes

(2003). With this change, jurisdiction has been retained over

the allegations in the Administrative Complaint. Salloway v.

Department of Professional Regulation , 421 So. 2d 573 (Fla. 3rd

DCA 1982).

35. Section 1012.795, Florida Statutes (2003), states as

follows in pertinent part:

(1) The Education Practices Commission may

suspend the teaching certificate of any

person . . . for a period of time not to

exceed 3 years, thereby denying that person

the right to teach for that per iod of time,

after which the holder may return to

teaching as provided in subsection (4); may

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 subj ect

to the provisions of subsection (4); may

revoke permanently the teaching certificate

of any person . . . or to impose any other

penalty provided by law, provided it can be

shown that the person:

* * *

(c) Has been guilty of gross immorality or

an ac t involving moral turpitude.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules.

36. The Administrative Complaint also alleges that

Respondent violated Florida A dministrative Code Rules

6B - 1.006(3)(a), 6B - 1.006(4)(b), 6B - 1.006(5)(a), and

6B - 1.006(5)(h). Florida Administrative Code Rule 6B - 1.006

states as follows in relevant part:

(1) The following disciplinary rule shall

constitute the Principles of Profession al

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 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.

* * *

(4) Obligation to the public requires tha t

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

37. The statutes do not define gross immorality or moral

turpitude. However, "gross immorali ty" is immorality, which

involves an act or conduct that is serious, rather than minor in

nature, and which constitutes a flagrant disregard of proper

moral standards. See Frank T. Brogan, as Commissioner of

Education v. Paula D. Redo , DOE Case No. 95 - 178 - R (Final Order,

March 18, 1996), adopting in toto , DOAH Case No. 95 - 2804

(Recommended Order, December 11, 1995).

38. Florida Administrative Code Rule 6B - 4.009, deals with

dismissal actions initiated by school boards against

instructional personnel, an d provides additional guidance to

ascertain the meaning of the terms "gross immorality" and "moral

turpitude." The Rule states as follows in pertinent part:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

* * *

(6) Moral turpitude is a crime that is

e videnced 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 prohib ition by

statute fixes the moral turpitude.

See Fla. Admin. Code R. 6B - 4.009.

39. In the instant case, there is no evidence that any

cheating occurred during the test. However, that does not

excuse Respondent's failure to follow the testing procedures

requiring her to separate her students' desk to the extent

possible.

40. Additionally, Respondent inappropriately read aloud

the first question on the first test section, telling the

students to put their finger on the starting point. This

instruction , which was not part of the script in the test

manual, gave Respondent's students an advantage not available to

other students taking the test.

41. Finally, Respondent inappropriately instructed Latrice

to go back and check her answers because she must have some

answers wrong. Respondent should not have interfered with

Latrice's test performance after she completed the test section.

42. Despite Respondent's failure to follow the correct

test procedures, Petitioner has not proved by clear and

convinci ng evidence that Respondent engaged in an act that

constitutes gross immorality or moral turpitude. Respondent's

conduct was professionally inappropriate, but it did not rise to

the level of violating Section 1012.795(1)(c), Florida Statutes

(2003).

43 . Petitioner has proved by clear and convincing evidence

that Respondent violated Section 1012.795(l)(i), Florida

Statutes (2003), because she violated the Principles of

Professional Conduct for the Education Profession in several

ways. First, Respondent violated Florida Administrative Code

Rule 6B - 1.006(3)(a) by failing to make a reasonable effort to

protect her students from conditions harmful to learning and/or

to their mental and/or physical health. Respondent knew or

should have known that her failu re to properly space the desks

and follow the script would invalidate the test results and

require the administration of a second substitute test.

44. Second, Respondent violated Florida Administrative

Code Rule 6B - 1.006(4)(b) by misrepresenting facts concerning an

educational matter in direct or indirect public expression. As

an experienced schoolteacher, Respondent knew or should have

known that her inappropriate communication with Latrice would

interfere with her answers and an accurate assessment o f her

ability under standardized testing conditions.

45. Third, Respondent violated Florida Administrative Code

Rule 6B - 1.006(5)(a), by failing to maintain honesty in all

professional dealings. During the test, Respondent tried to

help young children taking a standardized test for the first

time. She did not deliberately set out to skew the test results

but she knew or should have known that her actions would result

in dishonest test results.

46. Lastly, Respondent violated Florida Administrative

Code Rule 6B - 1.006(5)(h) by submitting fraudulent information on

any document in connection with professional activities.

Respondent knew the test results would be relied upon to assess

her students' performance as compared to other students in the

school , the state, and the nation. By not following the correct

testing procedures, Respondent knew or should have known that

the results of the test were a false representation of their

abilities.

47. Pursuant to the disciplinary guidelines set forth in

Fl orida Administrative Code Rule 6B - 11.007, violations of

Florida Administrative Code Rule 6B - 1.006, may result in

penalties ranging from a reprimand to revocation, including

probation and suspension. Some penalty ranges for particular

statutory and rule vi olations are prescribed specifically. For

example, the penalty for altering student/school records in

violation of Rule 6B - 1.006(4)(b) ranges from probation to a

3 - year suspension. See Fla. Admin. Code R. 6B - 11.007(2)(f).

48. Florida Administrative C ode Rule 6B - 11.007(3) sets

forth the aggravating and mitigating factors to be considered in

individual cases. The aggravating factors that apply here are

as follows: (a) the severity of the offenses; (b) the number of

offenses; (c) the damage caused by t he offenses; and (d) the

deterrent effect of the penalty imposed. The mitigating factors

applicable here are as follows: (a) Respondent's lack of prior

discipline; (b) the length of time Respondent has taught and her

contribution as an educator; (c) the effect of the penalty upon

Respondent's livelihood; and (d) the absence of self - gain for

Respondent.

49. During the hearing, Respondent admitted that she had

not strictly followed the test procedures. It was apparent that

Respondent is a dedicated teach er who, if anything, was too

anxious for her students to be successful. On balance,

Respondent's teaching certificate should be placed on probation

subject to terms and conditions set by the EPC for a period of

five years.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the EPC enter a final order, placing Respondent’s

teaching certificate on probation for a period of five years.

DONE AND ENTERED this 20th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November, 2003.

COPIES FURNISHED :

Betty N. Goggins

1291 East Camp Street

Lake City, Florida 32025

William B. Graham, Esquire

Ginger L. Barry, Esquire

McFarlain & Cassedy

305 South Gadsden Street

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399

Maria n Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Str eet

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.