04-003635PL Jim Horne, As Commissioner Of Education vs. Lisa M. Gause Status: Closed Recommended Order on Wednesday, April 6, 2005.

Summary: Petitioner failed to prove that Respondent improperly "coached" students on the 2003 FCAT. The students` accounts were not credible. Recommended that the complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3635PL

)

LISA M. GAUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was held in this case

on January 25 - 26, 2005, in Avon Park, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, Leboef, Bennett, Foster &

Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the acts alleged

in the Amended Administrative Complaint, and if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

Through a three - count Adminis trative Complaint dated

July 27, 2004, Petitioner alleged that Respondent “engaged in

inappropriate conduct with students by assisting them in

answering the questions” on the 2003 Florida Comprehensive

Assessment Test (FCAT), and based thereupon, Petitione r

recommended that the Education Practices Commission (Commission)

“impose an appropriate penalty pursuant to the authority

provided in Sections 1012.795(1) and 1012.796(7), Florida

Statutes.”

Respondent timely requested a hearing on the allegations in

the Administrative Complaint, and on October 6, 2004, this

matter was referred to the Division of Administrative Hearings

(Division) for the assignment of an administrative law judge to

conduct the hearing requested by Respondent.

The final hearing was init ially scheduled for December 2 - 3,

2004, but it was subsequently rescheduled for January 25 - 26,

2005, on Petitioner’s unopposed motion.

Petitioner’s unopposed motion to file an Amended

Administrative Complaint was granted through an Order dated

January 18, 2005. The nine - count Amended Administrative

Complaint alleged additional statute and rule violations, but it

did not include any additional factual allegations.

At the final hearing, Petitioner presented the testimony of

Victoria Ash; Rebecca Fleck; Pam Burnaham; students B.B. (girl),

R.C., C.M., A.P., B.B. (boy), C.F., B.Z, and K.J; and Sue Ranew,

who was accepted as an expert regarding the professional

standards for educators. Petitioner's Exhibits P - 1 through P - 11

were received into evidence. 1

Respon dent testified at the final hearing in her own behalf

and also presented the testimony of Kimberly Henry, Mae

Robinson, and student J.M. Respondent's Exhibits R - 2 and R - 3

were received into evidence.

The two - volume Transcript of the final hearing was file d on

February 14, 2005. The parties initially requested 20 days from

that date to file their proposed recommended orders (PROs), but

the deadline was subsequently extended to March 14, 2005, at the

parties’ request. The parties' PROs were timely filed, a nd have

been given due consideration.

FINDINGS OF FACT

1. Respondent holds, and at all relevant times, held a

valid Florida Educator’s Certificate.

2. Respondent is and, at all relevant times, was a fifth -

grade teacher at Avon Park Elementary School in Highlands

County.

3. Respondent has been an elementary school teacher for 19

years. She taught fourth and fifth grade at Zolfo Springs

Elementary School in Hardee County from 1986 through the end of

the 2000 - 01 school year. She started teaching at Avo n Park

Elementary School at the beginning of the 2001 - 02 school year.

4. Respondent is currently on a year - to - year contract.

Her contract was renewed for the 2003 - 04 and 2004 - 05 school

years notwithstanding the allegations in this case, which

occurred d uring the 2002 - 03 school year.

5. Respondent has not had any disciplinary problems over

the course of her career, and other than the allegations in this

case, she has never been accused of any unethical or

unprofessional conduct.

6. Respondent has alwa ys received good annual performance

evaluations. Respondent’s most recent performance evaluations -

- for the 2002 - 03 and 2003 - 04 school years – - state that she

“meets or exceeds expectations” in all categories, including the

category that assesses whether Respondent “act[s] in a

professional and ethical manner and adhere[s] to the Code and

Principles of Professional Conduct.”

7. Consistent with the information in Respondent’s annual

performance evaluations, the principal at Avon Park Elementary

School, wh o is Respondent’s current supervisor, testified that

Respondent “does a good job” as a teacher and that she values

Respondent quite highly as a teacher; the former principal at

Zolfo Springs Elementary School, who was Respondent’s supervisor

for approximat ely five of the years that Respondent taught at

that school, testified that Respondent’s reputation for

complying with the code of ethics is “excellent” and that

Respondent always “monitored and cherished” her professionalism;

one of Respondent’s co - worker s at Avon Park Elementary School

testified that Respondent is “a very effective and professional

teacher”; and the students who testified at the hearing

characterized Respondent as a good teacher.

8. Respondent has administered the FCAT to her students

si nce the test’s inception in the 1990s, and as a result, she is

very familiar with what teachers can and cannot do when

administering the test.

9. Respondent and other teachers at Avon Park Elementary

School received training on the administration of the 2003 FCAT,

and as part of the training, Respondent received a copy of the

Test Administration Manual for the 2003 FCAT.

10. The Test Administration Manual is published by the

state Department of Education (Department) and is distributed to

teachers by th e testing coordinators at each school. The

school - level testing coordinators report to a testing

coordinator at the school district level, who is ultimately

responsible for the administration of the FCAT to the district’s

students.

11. The Test Administ ration Manual summarizes the “dos and

don’ts” of test administration for the FCAT. It also includes a

copy of the statute and rule governing test security, which for

the 2003 FCAT were Section 228.301, Florida Statutes, and

Florida Administrative Code Rul e 6A - 10.042.

12. On the issue of test security, the Test Administration

Manual explains that:

it is not appropriate to talk with

[students] about any test item or to help

them answer any test item. For example, if

students finish the test before the al lotted

time for the session has elapsed, or have

not attempted to complete a question, it

would be appropriate to encourage them to go

back and check their work. It is not

acceptable to provide the students with any

information that would allow them to in fer

the correct answer, such as suggesting that

they might want to check their work on a

specific question. (Emphasis in original).

13. The FCAT is required by state law to be administered

annually to public school students in the third through tenth

gr ades to measure the students’ proficiency in reading, writing,

science, and math.

14. The FCAT measures the students’ performance against

state standards. The Norm Referenced Test (NRT), which is

administered in conjunction with the FCAT, measures the

students’ performance in math and reading against national

standards.

15. The FCAT is an important test, both to students and

the schools. The student’s promotion to the next grade and/or

class placement is affected to some degree by his or her

perform ance on the FCAT. The school’s grade, which has an

impact on the funding that the school district receives from the

state, is also affected to some degree by the students’

performance on the FCAT.

16. The math and reading portions of the 2003 FCAT were

a dministered to fifth graders on Monday through Wednesday,

March 3 - 5, 2003. The science portion of the FCAT and the NRT

were administered the following week, on Monday through

Wednesday, March 10 - 12, 2003.

17. Throughout the 2002 - 03 school year, Responde nt “taught

the FCAT” and gave her class practice FCAT questions. She used

the questions as teaching tools and to help prepare her students

for the actual FCAT.

18. Respondent would sometimes explain the wording of the

practice questions to her students a nd, as needed, she would

provide the students other assistance, both individually and as

a class, while they were working on the practice questions.

19. On Friday, February 28, 2003, Respondent administered

two practice tests to her students in which she tried to

simulate the environment in which the students would be taking

the actual FCAT the following week. For example, the tests were

timed and Respondent walked around the room as she proctored the

tests.

20. Respondent helped the students during th e practice

tests as she had done with the practice questions administered

throughout the year. At one point, she stopped the test and

reviewed a math problem on the board with the class because she

observed a number of students having problems with a part icular

question.

21. Respondent administered the math and reading portions

of the actual FCAT to 18 students in her homeroom class on

March 3 - 5, 2003. None of those students were exceptional

education students who were entitled to special accommodations.

22. Respondent did a 15 to 20 minute “mini - review” each

morning that the students were taking the actual FCAT during

which she went over terminology and concepts that the students

might see on the test that day.

23. Respondent started the administrati on of the actual

FCAT by reading the directions verbatim from the “scripts” in

the Test Administration Manual. Once the students began taking

the test, she monitored them from her desk and she also walked

around the room on a periodic basis. Respondent a lso went to

students’ desks when they raised their hands.

24. The Test Administration Manual contemplates that

students might raise their hands and ask questions during the

test; indeed, the “scripts” that the teacher is required to read

verbatim state m ore than once, “Please raise your hand if you

have any questions.”

25. Respondent denied giving the students any assistance

in answering the test questions on the actual FCAT.

26. According to Respondent, when a student asked her

about a particular test question, she told the student that “I

can’t help you,” “go back and re - read the directions,” “do the

best you can,” or other words to that effect. The Department’s

testing coordinator, Victoria Ash, testified that responses such

as those are acceptable.

27. Respondent also made a general statement to the class

during the test reminding the students to go back and check

their work if they finished the test before the allotted time

expired. Ms. Ash testified that a general reminder such as that

is “abso lutely acceptable.”

28. Respondent’s testimony was corroborated by student

J.M., who credibly testified that he recalled more than once

hearing Respondent tell other students that she could not help

them during the actual FCAT.

29. Several students tes tified that Respondent helped them

during the actual FCAT by explaining words that they did not

understand, explaining how to solve math problems, and/or by

suggesting that they check their work on particular problems.

That testimony was not persuasive be cause it lacked specificity

and precision, and other than A.P., B.B. (boy), and K.J., the

students testified that they were not certain that the help they

remembered receiving was on the actual FCAT rather than on the

practice tests that they were given by Respondent. With respect

to B.B. (boy), the undersigned did not find his testimony

persuasive because he also testified that Respondent helped the

entire class with a math problem during the actual test, which

contradicted the statements given by the oth er students and

which suggests that he was recalling events from the practice

test during which Respondent gave such help to the entire class.

With respect to A.P. and K.J., the undersigned did not find them

to be particularly credible witnesses based upo n their demeanors

while testifying.

30. There were other inconsistencies in the students’

accounts of Respondent’s administration of the FCAT that make

their testimony generally unpersuasive. For example, B.B.

(girl) testified that Respondent played clas sical music during

the actual test, which was not corroborated by any other student

in the class and was contradicted by Respondent’s credible

testimony that she played music during the practice tests to

relax the students but that she and the other fifth - grade

teachers at Avon Park Elementary School made a conscious

decision not to play music during the actual FCAT.

31. As a result of the students’ apparent confusion

regarding events occurring during practice tests rather than the

actual FCAT, the inconsi stencies in the students’ accounts of

the events during the administration of the test, the general

lack of specificity and precision in the students’ accounts of

the events, and Respondent’s credible denial of any wrongdoing,

the evidence does not clearly and convincingly establish the

truth of the allegations against Respondent.

32. In making the foregoing finding, due consideration was

given to the investigation undertaken by the district - level

testing coordinator, Rebecca Fleck, at the time of the

alle gations against Respondent, and the materials generated

through that investigation.

33. The reason for the investigation was a phone call that

Ms. Fleck received on Wednesday, March 5, 2003, from a

Department employee who told Ms. Fleck that the Departme nt had

received an anonymous complaint about Respondent’s

administration of the FCAT.

34. Ms. Fleck went to Avon Park Elementary School on

Friday, March 7, 2003, to investigate the complaint. On that

date, she met with the school’s assistant principal a nd

interviewed several of the students in Respondent’s class. She

also spoke briefly with Respondent to “get her side of the

story,” which consistent with her testimony at the hearing, was

an unequivocal denial of any wrongdoing.

35. Ms. Fleck decided, based upon the student interviews,

that Respondent should not administer the science portion of the

FCAT or the NRT the following week. As a result, Respondent was

assigned to work at the school district office on March 10 - 12,

2003, while her students wer e taking the tests on those dates.

36. Ms. Fleck also decided to interview and get statements

from all of the students in Respondent’s class, which she did on

the following Monday and Tuesday, March 10 and 11, 2003.

37. On those days, the students were called to the

principal’s office in groups of two or three and they were asked

to fill out a questionnaire developed by Ms. Fleck. Pam

Burnaham, the principal of Avon Park Elementary School, and Ms.

Fleck supervised the students while they filled out the

questionnaires.

38. The students were not told that Ms. Fleck was

investigating alleged wrongdoing by Respondent; they were told

that the purpose of the questionnaire was to find out about

their “FCAT experience.”

39. Ms. Fleck testified that she was confident that the

students understood that the questionnaire related only to the

actual FCAT and not any of the practice tests administered by

Respondent; however, Ms. Burnaham testified that she did not

place any emphasis on the distinction, and as noted above, the

students’ testimony at the hearing indicates that they may have

been confused on this issue.

40. Ms. Fleck concluded based upon the students’ responses

on the questionnaires that Respondent “coached” the students

during the administration of t he actual FCAT. As a result, she

invalidated the tests of all 18 students in Respondent’s class.

41. Ms. Fleck’s decision to invalidate the students’ tests

was not unreasonable based upon what she was told by the

students, which she believed to be true; however, the

invalidation of the tests is not sufficient in and of itself to

impose discipline on Respondent because, as discussed above, the

truth of the students’ allegations was not clearly and

convincingly proven at the hearing.

42. Several of the stu dents gave written statements to a

Department investigator in late May 2003 regarding the help that

they recalled being given by Respondent on the FCAT. No weight

is given to those statements because no credible evidence was

presented regarding the circum stances under which the statements

were made, the statements were made several months after the

events described in the statements, and as was the case with the

questionnaires the students filled out for Ms. Fleck, the

undersigned is not persuaded that the students understood at the

time they were giving the statements that they were describing

events that occurred during the actual FCAT rather than the

practice tests that they were given by Respondent.

43. There is no persuasive evidence that any of the

s tudents in Respondent’s class whose tests were invalidated

suffered any adverse educational consequences. Even though the

school administrators did not have the benefit of the students’

FCAT scores for purposes of placement and/or developing a

remediation plan, they had other information on which they could

make those decisions, including the students’ scores on the NRT,

which was administered the week after the FCAT and was not

invalidated.

44. Other than being reassigned to the school district

office du ring the administration of the NRT, Respondent did not

suffer any adverse employment consequences from the school

district as a result of the students’ allegations and/or the

invalidation of the students’ tests. To the contrary,

Respondent continued to ge t good performance reviews and her

contract has been renewed twice since the administration of the

2003 FCAT.

45. Respondent did not administer the 2004 FCAT because

this case was still pending. She was given other duties at Avon

Park Elementary School w hile her students were taking the 2004

FCAT.

CONCLUSIONS OF LAW

46. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 1012.796(6), Florida Statutes (2004).

47. The Commi ssion is the state agency responsible for

taking disciplinary action against certified teachers, when

appropriate. See § 1012.79(7)(b), Fla. Stat. (2004).

48. Petitioner is the state official responsible for

prosecuting complaints against certified teac hers. See

§ 1012.796(6), Fla. Stat. (2004).

49. Petitioner has the burden to prove the allegations in

the Amended Administrative Complaint by clear and convincing

evidence. See Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

50. The clear and convi ncing evidence standard requires

that:

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (ci tation omitted).

See also Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991) (“Although [the clear

and convincing evidence] standard of proof may be met where the

evidence is in conflict, . . . it seems to preclu de evidence

that is ambiguous.”).

51. The substantive law codified in the 2002 edition of

the Florida Statutes and the Department’s rules applies in this

case because the acts alleged in the Amended Administrative

Complaint occurred in March 2003. See He ath v. State , 532 So.

2d 9, 10 (Fla. 1st DCA 1988) (“[T] he statutes in effect at the

time of commission of a crime control as to the offenses for

which the perpetrator can be convicted, as well as the

punishments which may be imposed. ”).

52. The applicabl e law includes the “Florida K - 20

Education Code” codified in Chapters 1000 through 1013, Florida

Statutes (2002), which became effective on January 7, 2003. See

Ch. 2002 - 387, Laws of Fla.

53. Count 1 of the Amended Administrative Complaint

alleges that Respondent violated Section 1012.795(1)(c), Florida

Statutes (2002), which authorizes the Commission to discipline a

certified teacher that “[h]as been guilty of gross immorality or

an act involving moral turpitude .”

54. According to prior Commission dec isions, “gross

immorality” is more egregious than mere immorality and involves

acts of serious misconduct that constitute a flagrant disregard

of proper moral standards, and “moral turpitude” involves acts

of vileness or depravity, which violate the basic moral

standards that one owes to his fellow man and to society as a

whole. See , e.g. , Crist v. D’Agostino , Case No. 04 - 0664PL, 2004

WL 1474373, at *5 (DOAH June 28, 2004; EPC Nov. 23, 2004)

(citations omitted).

55. The evidence was not clear and convinci ng that

Respondent provided her students with any inappropriate

assistance during the actual 2003 FCAT and, as a result,

Petitioner failed to prove that Respondent violated Section

1012.795(1)(c), Florida Statutes (2002). Moreover, even if the

allegations in the Amended Administrative Complaint had been

proven, they would not rise to the level of gross immorality or

moral turpitude as defined above. See Crist v. Goggins , Case

No. 03 - 2382PL, 2003 WL 22767447, at **6 - 7 (DOAH Nov. 20, 2003;

EPC Feb. 4, 2004) (teacher's failure to follow proper testing

procedure was professionally inappropriate, but it did not rise

to the level of gross immorality or moral turpitude).

56. Count 2 of the Amended Administrative Complaint

alleges that Respondent violated Sect ion 1012.795(1)(f), Florida

Statutes (2002), which authorizes the Commission to discipline a

certified teacher that “ has been found guilty of personal

conduct which seriously reduces that person's effectiveness as

an employee of the district school board.”

57. The evidence was not clear and convincing that

Respondent provided her students with any inappropriate

assistance during the actual 2003 FCAT. Moreover, the evidence

was not clear and convincing that the Respondent’s effectiveness

as a teacher was reduced as a result of the allegations against

her; she continued to receive good performance reviews and have

her contract renewed after the allegations and, notwithstanding

the allegations, the principal at Avon Park Elementary School

testified that she still values Respondent as a member of the

school’s teaching staff. Accordingly, Petitioner failed to

prove that Respondent violated Section 1012.795(1)(f), Florida

Statutes (2002).

58. Count 3 of the Amended Administrative Complaint

alleges that Respon dent violated Section 1012.795(1)(i), Florida

Statutes (2002), which authorizes the Commission to discipline a

certified teacher that “[h]as violated the Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules.”

59. The Principles of Professional Conduct for the

Education Profession are contained in Florida Administrative

Code Rule 6B - 1.006. Counts 5 through 7 of the Amended

Administrative Complaint identify the specific provisions of the

Principles tha t Respondent is alleged to have violated. Because

Petitioner failed to prove the rule violations alleged in Counts

5 through 7, it also failed to prove that Respondent violated

Section 1012.795(1)(i), Florida Statutes (2002).

60. Count 4 of the Amended A dministrative Complaint

alleges that Respondent violated Section 1008.24(1)(c), Florida

Statutes (2002), which provides that it is unlawful for anyone

to knowingly and willingly “ [c]oach examinees during testing or

alter or interfere with examinees' respon ses in any way.”

Accord § 228.301(1)(c), Fla. Stat. (2002) (repealed effective

January 7, 2003, but included in the Test Administration Manual

for the 2003 FCAT as the “Florida Test Security Statute”).

61. The evidence was not clear and convincing that

R espondent coached her students during the actual 2003 FCAT or

that she otherwise altered or interfered with their responses.

Accordingly, Petitioner failed to prove that Respondent violated

Section 1008.24(1)(c), Florida Statutes (2002).

62. Count 5 of t he Amended Administrative Complaint

alleges that Respondent violated Florida Administrative Code

Rule 6B - 1.006(3)(a), which requires teachers to “make reasonable

effort to protect the student from conditions harmful to

learning and/or to the student’s ment al and/or physical health

and/or safety.”

63. The evidence was not clear and convincing that

Respondent provided her students with any inappropriate

assistance during the actual 2003 FCAT or that Respondent’s

students suffered any adverse education conseq uences as a result

of the invalidation of their tests. Accordingly, Petitioner

failed to prove that Respondent violated Florida Administrative

Code Rule 6B - 1.006(3)(a).

64. Count 6 of the Amended Administrative Complaint

alleges that Respondent violated Florida Administrative Code

Rule 6B - 1.006(4)(b), which requires teachers to “not

intentionally distort or misrepresent facts concerning an

educational matter in direct or indirect public expression.”

65. The evidence was not clear and convincing that

Resp ondent provided her students with any inappropriate

assistance during the actual 2003 FCAT and, as a result,

Petitioner failed to prove that Respondent violated Florida

Administrative Code Rule 6B - 1.006(4)(b).

66. Count 7 of the Amended Administrative Com plaint

alleges that Respondent violated Florida Administrative Code

Rule 6B - 1.006(5)(a), which requires teachers to “maintain

honesty in all professional dealings.”

67. The evidence was not clear and convincing that

Respondent provided her students with a ny inappropriate

assistance during the actual 2003 FCAT and, as a result,

Petitioner failed to prove that Respondent violated Florida

Administrative Code Rule 6B - 1.006(5)(a).

68. Counts 8 and 9 of the Amended Administrative Complaint

allege that Responden t violated Florida Administrative Code Rule

6A - 10.042(1)(c) and (1)(d), respectively. Those rule provisions

state:

(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 the examinations.

69. The provisions of Florida Administrative Code Rule 6A -

10.042 apply to the 2003 FCAT even th ough Section 229.57,

Florida Statutes, which is one of the statutory sections

specifically included within the scope of the rule, was repealed

effective January 7, 2003. That statute is virtually identical

to Section 1008.22(3)(c), Florida Statutes (2002) , which became

the statutory authority for the FCAT effective January 7, 2003.

Moreover, both Section 229.57, Florida Statutes, and Florida

Administrative Code 6A - 10.042 were referred to in the Test

Administration Manual for the 2003 FCAT as the controlli ng

authority for the test.

70. The evidence was not clear and convincing that

Respondent provided her students with any inappropriate

assistance during the actual 2003 FCAT and, as a result,

Petitioner failed to prove that Respondent violated Florida

Adm inistrative Code Rule 6A - 10.042(1)(c) or (1)(d).

71. With respect to the appropriate discipline, Section

1012.796(6), Florida Statutes (2002 and 2004), requires the

administrative law judge to “make recommendations in accordance

with subsection (7) [of Se ction 1012.796, Florida Statutes].”

72. Section 1012.796(7), Florida Statutes (2002), requires

the Commission to enter a final order “either dismissing the

complaint or imposing one or more of the . . . penalties”

enumerated in that subsection. The penal ties range from

revocation of the teacher’s certification to a written reprimand

by the teacher’s supervisor, with a copy placed in the teacher’s

certification file. Id. See also § 1012.795(1), Fla. Stat.

(2002).

73. Because Petitioner failed to prove t he allegations

against Respondent, no discipline is appropriate and the

Commission should dismiss the Amended Administrative Complaint.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Commission issue a final order

dismissing the Amended Administrative Complaint against

Respondent.

DONE AND ENTERED this 6th day of April, 2005, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 Hearing s

this 6th day of April, 2005.

ENDNOTE

1/ Exhibits P - 1, P - 4, P - 7, P - 8, P - 9, and P - 11 are

questionnaires completed by several of the students in

Respondent’s class approximately one week after they took the

FCAT. Exhibits P - 2, P - 5, P - 6, and P - 10 are stat ements given by

several of the students approximately two months after they took

the FCAT. Respondent agreed at the hearing to the admissibility

of those exhibits, but took the position that the statements in

the exhibits could not independently support f indings of fact

because they were hearsay and no hearsay exception applied. See

§ 120.57(1)(c), Fla. Stat. (2004). Petitioner acknowledged the

hearsay nature of the statements, but took the position that the

exhibits satisfied the “past recollection reco rded” hearsay

exception in Section 90.803(5), Florida Statutes (2004), and

that the statements in the exhibits could therefore

independently support findings of fact. The undersigned

preliminarily determined at the hearing that the exhibits

satisfied that hearsay exception, but deferred final ruling on

the issue to allow the parties an opportunity to present

additional legal argument in their PROs. Having reviewed the

exhibits, the pertinent portions of the Transcript, and the

legal argument in the partie s’ PROs, the preliminary ruling is

reaffirmed; the exhibits are admissible under the hearsay

exception in Section 90.803(5), Florida Statutes (2004). The

students identified the statements as their own and testified

that they would not have made the state ments unless they had

believed them to be true at the time, which is an adequate

predicate under Section 90.803(5), Florida Statutes (2004). See

generally Kimbrough v. State , 846 So. 2d 540, 542 - 44 (Fla. 4th

DCA 2003); Ehrhardt, Florida Evidence § 803.5, at 752 n.5

(2002).

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Edu cation

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett & Foster, P.A.

863 East Park Avenue

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMI T 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.