03-003569 Maria Guerrero vs. Department Of Education Status: Closed Recommended Order on Thursday, March 4, 2004.

Summary: Petitioner wrote examination questions on her admission ticket in violation of the express prohibition of doing so. Recommend that the Essay subtest of the Petitioner`s General Knowledge Test should be invalidated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA GUERRERO, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3569

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Janua ry 27, 2004, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

F or Petitioner: Maria Guerrero, pro se

80 East 18th Street

Miami, Florida 33010

For Respondent: Scott Odenbach, Esquire

Department of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

Whether the Petitioner failed to follow testing procedures

on the Essay subtest of the General Knowledge Test administered

July 26, 2003, as alleged by the R espondent in correspondence

dated September 3, 2003.

PRELIMINARY STATEMENT

In correspondence dated September 3, 2003, the Department

of Education ("Department") notified Maria Guerrero that her

response on the Essay subtest portion of the General Knowledge

Test administered on July 26, 2003, had been invalidated because

Ms. Guerrero failed to follow the Department's policy on

cheating. Ms. Guerrero timely requested an administrative

hearing, and the Department forwarded the matter to the Division

of Admini strative Hearings for assignment of an administrative

law judge.

At the hearing, the Department presented the testimony of

Kathy Fearon and Lourdes Fernandez, and Department's Exhibits A

through F were received into evidence. Ms. Guerrero testified

in her own behalf, and offered no exhibits. Anna Fernandez,

Ms. Guerrero's daughter, acted as interpreter, with the

Department's agreement.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on February 10, 2004,

and the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. On June 18, 2003, Ms. Guerrero completed the

Registration Application to take the Certification Examination

for Florida Educators that was administered on July 26, 2003.

2. A R egistration Bulletin accompanied the Registration

Application and contained directions for completing the

application. On page 24 of the Registration Bulletin,

applicants were advised that, in signing Block 19 of the

Registration Application, they were ag reeing to the conditions

set forth in the Registration Bulletin, including the following:

I understand that all of the examination

booklets, answer sheets, and other

examination materials are the sole property

of the Florida Department of Education and

tha t I am not permitted to take any of the

examination materials from the examination

center or to reproduce the materials in

whole or part by any method. If I do

anything prohibited by this paragraph, my

examination performance will be voided.

I understand that during the examination I

will not be permitted to use written notes,

make written notes of the content of the

examination booklets, use scratch paper, or

communicate with other examinees in any way.

I also understand that the only materials

that may be on my desk during the

examination are the test booklets, answer

sheets, pencils and eraser, and examination

aids that are specified on my admission

ticket, and that I will be permitted to use

the margin of my test booklet for any

preliminary work prepa ratory to answering

specific questions. I understand that I am

not permitted to give assistance to or

receive assistance from other examinees, I

must follow the instructions of the test

administration personnel, and I must be the

person whose name appears on the test

receipt card for this test. If I do

anything prohibited by this paragraph, my

examination will be voided.

3. Approximately two weeks before an examination is

administered, it is the Department's practice to send the

candidates for the exami nation their admission tickets and a

copy of Certification Examinations for Florida Educators, which

includes the following:

Cheating is any unauthorized activity that

impairs or alters the circumstances of the

examination as a measure of the knowledge or

skills it was designed to assess, including

but not limited to the following:

* * *

g. During or after the examination

administration, taking, or attempting to

take, from the examination room, copies of,

or notes regarding, examination questions,

prompt s, answers, responses, or examination

question stimulus materials.

Ms. Guerrero received a copy of Certification Examinations for

Florida Educators, along with her examination admissions ticket.

4. Ms. Guerrero was admitted to the examination center on

J uly 26, 2003.

5. Two essay topics were included in the essay booklet for

the examination, and the candidates were to choose one topic on

which to write. Ms. Guerrero does not understand English very

well, and, shortly after the examination began, she wro te the

two essay topics on the back of the admission ticket so she

would better understand them before she chose the topic on which

to write her essay. Ms. Guerrero also wrote her "logic rules"

on the front of the admission ticket to make sure that she

re membered them. Ms. Guerrero used the admission ticket as

though it were a piece of scratch paper.

6. At 8:35 a.m., the examination proctor observed

Ms. Guerrero writing on her examination admission ticket and

immediately began walking to Ms. Guerrero's s eat to confront

her. As soon as she saw the proctor approaching, Ms. Guerrero

realized that she should not have written on any of the

examination materials because they belong to the Department.

7. Ms. Guerrero moved to put the admission ticket into her

purse, but the proctor arrived at her seat before she could

complete the action. Ms. Guerrero gave the admission ticket to

the proctor, who prepared an irregularity report on the

incident.

8. The proctor allowed Ms. Guerrero to continue taking the

examin ation.

9. The Department decided to invalidate the Essay subtest

of Ms. Guerrero's examination as a result of the proctor's

report of the irregularity.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matt er of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

11. The Department is charged with administering an

examination to measure the mastery of general knowledge of

applicants for certificati on as teachers in Florida. See

§ 1012.56(2), (3), and (8), Fla. Stat. (2003). Florida

Administrative Code Rule 6A - 4.0021 governs the written

examinations required for teacher certification, and these

examinations include subtests in various subjects, one of which

is writing. See Fla. Admin. Code R. 6A - 4.0021(2)(b).

12. Candidates to take the examination are required to

submit a completed and signed Form CG - 20 - 03, Registration

Application: Certification Examinations for Florida Educators,

which is incorp orated by reference into Florida Administrative

Code Rule 6A - 4.0021(4)(a)1.a.

13. As set forth in the findings of fact herein,

Ms. Guerrero, by writing the two essay topics on her examination

admission ticket, performed an act expressly prohibited in the

Registration Bulletin which accompanied the Registration

Application by making written notes of the contents of an

examination booklet. Accordingly, the Department appropriately

invalidated the Essay subtest of the General Knowledge Test

administered July 26, 2003.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Education enter a

final order invalidating the Essay subtest of the General

Knowledge Test administered to Maria Guerrero on July 26, 2003.

DONE AND ENTERED this 4th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2004.

COPIES FURNISHED:

Maria Guerrero

80 East 18th Street

Hialeah, Florida 33010

Scott Odenbach, Esquire

Department of Education

325 West Gaines St reet, Suite 1244

Tallahassee, Florida 32399 - 0400

Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Tur lington Building

325 West Gaines Street

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 recomme nded order should be filed with the agency that

will issue the final order in this case.