05-000504PL Jim Horne, As Commissioner Of Education vs. Stacy Stinson Status: Closed Recommended Order on Thursday, August 11, 2005.

Summary: The testimony and written statements of five, 13-year-old students were not clear and convincing evidence that the teacher provided them with prohibited assistance during the Florida Comprehensive Assessment Test.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, as Commissioner of )

Education, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0504PL

)

STACY STINSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Ad ministrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing of this case on June 2, 2005, in Viera, Florida,

on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Po st Office Box 5675

Douglasville, Georgia 30154

For Respondent: Mary F. Aspros , Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues presented are whether Respondent provided

prohibited assistance to examinees in a Florida Comprehensive

Assessment Test in violation of Subsections 1008.24(1)(c) and

1012.79 5(1)(c), (f), and (i), Florida Statutes (2002), and

Florida Administrative Code Rules 6A - 10.042(1)(c), (d), and 6B -

1.006(3)(a), (4)(b), and (5)(a) , and , if so, what penalty should

be imposed against the teaching certificate of Respondent.

PRELIMINARY STATE MENT

On February 9, 2005, Petitioner filed an Administrative

Complaint against Respondent and , upon Respondent's request for

hearing , referred th e matter to DOAH to conduct a formal

hearing. DOAH assigned the matter to ALJ Susan B. Harrell who

scheduled the hearing for April 14, 2005, but rescheduled it for

June 2, 2005, pursuant to an Unopposed Motion for Continuance.

DOAH then transferred the matter to the undersigned.

At the hearing, Petitioner presented the testimony of eight

witnesses, including t wo by deposition, and submitted four

exhibits, including the two depositions . Respondent presented

the testimony of nine witnesses, including one by deposition ,

and submitted two exhibits, including the deposition.

The identity of the witnesses and exhibi ts and the rulings

regarding each are reported in the one - volume Transcript of the

hearing filed with DOAH on June 16, 2005. The ALJ granted

Petitioner's unopposed request for an extension of time, until

July 12, 2005, to file proposed recommended orders (PROs). The

parties timely filed their respective PROs on July 12, 2005.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate

N umber 685117 that is effective through June 30, 2007 (teaching

certificate). Respondent is certified to teach elementary

education, including math, science, and social studies.

2. The Brev ard County School District ( District) has

employed Respondent as a teacher for 14 years. In March 2003,

the District employed Respondent as a fifth - grade teacher at

Gemini El ementary School (Gemini). At Gemini, Respondent

proctored the math and science portions of the Florida

Comprehensive Assessment Test (FCAT) for some fifth graders.

3. A student identified in the record as L.H. was upset

after the first day of the FCAT exam. She told her mother that

night that she felt like she had che ated because of assistance

she received from R espondent during the FCAT .

4 . The next day, the mothe r of L.H. reported the

allegation to administrators at Gemini. The administrators

imm ediately replaced Respondent as a proctor, conducted an

investigation, invalidated the test scores of 26 students, and

subsequently transferred Respondent to Endeavor Elementary

School (Endeavor).

5 . While the results of the investigation were pending,

Di strict employees conducted a public meeting to allow parents

to voice their concerns over the invalidation of FCAT results.

District employees did not address the specific facts

surrounding the invalidation of the test results due to the

pending investiga tion. However, the matter gained public

attention as a result of the actions of District employees.

6. District employees rely, in part, on FCAT scores to

determine whether fifth - grade students progress to the sixth

grade. In March 2003, Gemini fifth gr aders generally needed a

passing score on the FCAT to progress to the next level. The

District also needed to test at least 95 percent of its fifth -

grade students or face applicable sanctions.

7. The invalidation of the FCAT scores did not prevent any

o f the 26 students from progressing to the sixth grade. Nor did

the invalidation of the FCAT scores prevent the District from

testing 95 percent of the students in the District.

8 . O n May 17, 2005, Petitioner issued an Amended

Administrative Complaint (C omplaint). The Complaint alleges,

inter alia , that Respondent violated Subsection 1008.24(1)(c),

Florida Statutes (2002). The statute makes it a violation for

Respondent to knowingly or willfully c oach an examinee during

the FCAT or alter or interfere wi th the response of an examinee.

9. Respondent signed an FCAT Test Administration Security

Agreement (security agreement) indicating that she had read and

understood the statutes and rules related to the administration

of the FCAT. A test manual and tra ining that proctors received

before the FCAT directed Respondent to read test directions to

examinees and provide no additional help.

10. No finding is made that Respondent failed to follow

test manual and training directions. The Complaint does not

all ege that Respondent failed to "follow test administration

directions specified in . . . test . . . manuals. . . " within

the meaning of Subsection 100824(1)(f), Florida Statutes (2002).

11. Evidence of what transpired in Respondent's

examination room i n March 2003 consists of the testimony of five

students and the written statement of another student, all of

whom Respondent proctored. Incriminatory evidence consists

primarily of the testimony of f our student s . Two students

testified at the formal hear ing, and two testified by

depo sition. T he rest of the incriminatory evidence enters the

record a s a w ritten statement from a fifth stu dent completed in

April 2003 . 1 Exculpatory e vidence consis ts of the testimony of a

sixth student who testified during th e formal hearing .

12 . The six students are identified in the record ,

respectively, as T.M., L.M., S.O., J.C., L.H. , and W.D. The y

were approximately 11 years old in March 2003. The f ive

students who testi fied were approximately 13 years old at the

tim e of the formal hearing, and approximately two years had

passed since the y took the FCAT. None of the students were

enrolled in Gemini at the time of the hearing.

13 . For reasons discussed in the Conclusions of Law, it is

legally insufficient for incri minatory evidence to merely show

that Respondent provided assistance "by any means" or "in any

way . " The testimony and written statement mus t be clear and

convincing that Responden t committed a specific act that is

statuto rily prohibited because it coach e s an examinee or alter s

or interfere s with the examinee 's response (prohibited

assistance). 2

14 . Incriminatory evidence must satisfy two standards to

be clear and convincing . The two standards have been judicially

differentiated as a qualitative standa rd and a quantitative

standard. 3

15 . The q ualitative standard requires incriminatory

evidence to satisfy several requirements. The five students who

testified and provided a written statement for Petitioner must

be credible. The memory of each studen t must be clear and lack

confusion. The content of the testimony and written statement

must describe what was said and done during the FCAT examination

precisely and explicitly and must distinctly recall material

facts. The testimony and written statemen t must be direct,

unequivocal, and consistent. 4

16 . Incriminatory evidence opining that Respondent

assisted an examinee is conclusory if it is not substantiated by

precise and explic it details that are disti nctly remembered by

the student and are suffic ient for the trier of fact to

independently determine whether the conduct of Respondent

provided prohibited assistance to an examinee. Conclusory

testimony fails the qualitative standard, is not clear and

convincing , and invades the province of the trier of fact by

denying the trier of fact an evidential basis to independently

determine whether the specific acts committed during the FCAT

amounted to prohibited assistance. 5

17 . Incriminatory evidence must also satisfy a

quantitative standard . The sum to tal of incriminatory evidence

must be of sufficient weight that it produces in the mind of the

trier of fact a firm conviction, without hesitation, as to the

truth of the factual allegations in the Complaint. 6

18 . The trier of fact bases the remaining findings on a

determination of whether it is clear and convincing from the

testimony and written statement of the six students that

Respondent provided prohibited assistance to an examinee. The

trier of fact first weighs the incriminatory evidence to

iden tify evidence that satisfies the qualitative standard

(qualitative evidence) and then determines whether the

qualitative evidence satisfies the quantitative standard .

19. The testimony of S.O. was credible, but the trier of

fact was unable to assess the credibility of T.M. and L.M. by

observing their demeanor and candor. Th e content of the

testimony and writ t en statement is conclusory. The

incriminatory evidence lacks the precise and e xplicit detail

needed for the trier of fact to independently substan tiate the

conclusions of the students .

20. S.O., T.M., and L.M., each stated in conclusory

fashion that Respondent provided assistance to the respective

examinee on one question in the science portion of the FCAT.

However, none of the students distinctly remembered their

respective question; the an swer each provided; or t he details of

the conduct or statements of Respondent. 7 It is less than clear

and convinc ing that the answer each student provided was any

diffe rent from the answer the student would ha v e provided

without the alleged assistance from Respondent.

21. The conclusory statements by S.O., T.M., and L.M. are

tantamount to opinions on an ultimate issue of fact without

precise and explicit details required for the trier of fact to

independently f ind that the statements and conduct of Respondent

concerning a specific question and answer provided prohibited

assistance. Such conclusory evidence effectively invades the

province of the trier of fact.

22. The testimony of J.C. is sufficient ly specif ic to

satisfy the qualitative standard for clear and convincing

evidence. J.C. testified that he asked Respondent what a waxing

crescent moon is, and Respondent stated it is a one - fifth moon

to the left. However, J.C. testified by deposition, and the

tri er of fact is unable to determine the credibility of J.C. by

assessing the demeanor and candor of the witness. Moreover, it

is less than clear and convincing that Respondent provided J.C.

with the answer to the question, coached J.C., or altered or

interf ered with the response of J.C. 8 There is no evidence that

the response J.C. provided to the question was any different

from the response he would have provided in the absence of the

alleged assistance from Respondent.

23. The testimony of L.H. is credibl e and sufficient ly

detailed to satisfy the qualitative standard for clear and

convincing evidence. L.H. testified that Respondent answered an

inquiry from L.H. by stating that the test question has nothing

to do with the sun and the moon and to take away all the answers

about the sun and the moon. L.H. testified that only one answer

remained. The testimony of L.H. also provided sufficient detail

to enable the trier of fact to make an independent finding as to

whether the effect of the alleged assistance was to coach L.H.

or to alter or interfere with the response given by L.H.

24. The testimony of L.H. is the only evidence from

Petitioner that satisfies the qualitative standard for clear and

convincing evidence. However, the testimony of L.H. is not

qu antitative ly sufficient to be clear and convincing evidence.

25. For reasons stated in the Conclusions of Law, the

testimony of one fact witness that is not corroborated by other

clear and convincing evidence is not legally sufficient to be

clear and co nvincing . Even if uncorroborate d testimony were

legally sufficient, t he testimony of L.H. does not satisfy the

quantitative standard for clear and convincing evidence because

it i s in apparent conflict with exculpatory testimony from W.D.

26. W.D. test ified that Respondent refused to assist him

during the FCAT and did n ot assist anyone else . 9 The testimony

of W.D. conflicts with that of L.H. if they took the FCAT

together. Respondent was the proctor for L.H. and W.D. on the

first day of the FCAT. Pet itioner did not place W.D. in a

different room from L.H. by clear and convincing evidence. 10

E vidence that support s a reasonable inference t hat L.H. and W.D.

were in the same room , although not a preponderance of the

evidence, is sufficient to create hesi tancy in th e mind of the

trier of fact and preclude a firm conviction that Respondent

committed spe cific acts prohibited by Subsection 1008.24(1)(c),

Florida Statutes (2002) , and Florida Administrative Code Rule

6A - 10.042(1)(c) and (d).

27. If it were determined that Respondent violated the

preceding statute and rule, it is less than clear and convincing

that the violation was an act of "moral turpitude" or "gross

immorality" within the meaning of Subsection 1012.795(1)(c),

Florida Statutes (2002). No applicable rule defines the quoted

terms. However, rules applicable to teacher dismissal

proceedings provide definitions that are instructive.

28. The evidence is less than clear and convincing that

the alleged prohibited assistance was a base, vile, o r depraved

act within the meaning of moral turpitude in Florida

Administrative Code Rule 6B - 4.009(6). Nor did the alleged

prohibited assistance satisfy the definition of immorality in

Florida Administrative Code Rule 6B - 4.009(2). In relevant part,

the al leged violation did not impair Respondent's service in the

community. It is clear and convincing that Respondent continues

to be an effective employee of the District within the meaning

of Subsection 1012.795(1)(f), Florida Statutes (2002).

29. After D istrict employees investigated the incident and

invalidated the test scores of 26 students, the District did not

terminate the employment of Respondent. Rather, the District

transferred Respondent to Endeavor.

30. It is clear and convincing from t he test imony of

District personnel, administrators at Gemini, fellow teachers,

parents, and students, and from previous job evaluations, that

Respondent has been and continues to be an excellent teacher.

Respondent brings out the best in students. Respondent ha s a

wonderful rapport with students, instills in students the desire

to learn, and inspires the imagination of students. Respondent

emanates genuine enthusiasm in the classroom as well as a fun

loving attitude.

31. Respondent goes out of her way to mak e sure that

children with learning problems achieve their goals and gain

satisfaction. Respondent is very good at explaining difficult

subjects to students. Respondent tutors students after school.

Respondent is able to identify and focus on unique qual ities in

each student. Respondent does not display bias or prejudice

toward any student.

32. Respondent uses a reward sys tem for classroom

discipline that is effective and ensures an attentive class.

Respondent is very calm in the classroom. Respondent never

loses her temper or yells at students.

33. Respondent is professional, consistent, structured,

fair, compassionate, nurturing, and punctual. Respondent is

intelligent, reliable, and dedicated. Respondent spends a great

deal of time preparing h er lessons and for her work with

students. Respondent teaches ma th, science, and social studies

and is a valuable asset to the District.

34. Any notoriety surrounding the events in March 2003

arose from the action of District employees. For reasons stated

in the Conclusions of Law, Petitioner cannot penalize the

teaching certificate of Respondent on the ground that the

alleged prohibited assistance became notorious through the

actions of District employees.

35. The alleged prohibited assistance did not violate

relevant standards of professional conduct within the meaning of

Subsection 1012.795(1)(i), Florida Statutes (2002). The

evidence is less than clear and convincing that Respondent

possessed the culpable intent required in Florida Administrativ e

Code Rule 6B - 1.006(3)(e), (4)(b), or (5)(a).

36. L.H. was very upset over the events in March 2003 and

over the criticism she received from other students for

complaining about Respondent to school officials. However, the

evidence is less than clear and convincing that the alleged

prohibited assistance failed to protect L.H. from con ditions

harmful to the learning or mental or physical health or safety

of L.H. within the meaning of Florida Administrative Code Rule

6B - 1.006(3)(a).

37. There is no evidence that public scorn threatened the

safety of L.H. or interfered with what L.H. learned at Gemini.

L.H. achieved her educational goals and progressed to the sixth

grade. Nor is there any evidence that L.H. suffered any

identifiab le mental or physic al impairment as a result of the

alleged assistance from Respondent.

CONCLUSIONS OF LAW

38 . DOAH has jurisdiction over the subject matter and the

parties in this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2005). DOAH provided the parties wi th ade quate notice of

the formal hearing.

39 . The essential charge in the Complaint is that

Respondent violated Subsection 1008.24(1)(c), Florida Statutes

(2002), and Florida Administrative Code Rule 6A - 10.042(1)(c) and

(d), during the FCAT administered at Gemi ni in March 2003 (the

operative statute and rule). The remaining violations charged

in the Complaint are rendered moot without proof that Respondent

violated the operative statute and rule.

40 . Petitioner submitted evidence that Respondent provided

assis tance to FCAT examinees by any means and in any way. The

nature and scope of the proof offered by Petitioner tacitly

argues that prohibited assistance is not limited to assistance

that coaches an examinee or alters or interferes with the

response of the e xaminee.

41 . The operative statute does not contain the term

"assistance." Rather, the operative statute prohibits specific

acts that have the effect of coaching an examinee or altering or

interfering with the response of an examinee. See , e.g .,

§ 1008. 24(1)(g), Fla. Stat. (2002) (it is a violation to "assist

in . . . any of the acts prohibited in this section")(emphasis

supplied).

42 . The terms of the operative statute prohibit only those

acts that coach an examinee or alter or interfere with the

res ponse of an examinee. Subsection 1008.24(1)(c), Florida

Statutes (2004), makes it a violation for Respondent to

knowingly and willfully:

(c) Coach examinees during testing or alter

or interfere with examinees' responses in

any way. . . . (emphasis supp lied)

43 . The literal terms of the operative rule do not limit

prohibited assistance to the specific acts proscribed in the

operative statute. In relevant part, Florida Administrative

Code Rule 6A - 10.042(1)(c) and (d) provides:

(1) Tests . . . shall be . . . 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 the

examinations. (emphasis supplied)

44 . Florida Administrative Code Rule 6A - 10.042(1)(c)

and (d) cannot be construed to ex pand the reach of Subsection

1008.24(1)(c), Florida Statutes (2002). Petitioner and the

State Board of Education (the Board) are statutorily prohibited

from interpret ing a rule in a manner that enlarges, amends,

modifies, or contravenes the specific provi sions of the law

implemented. Similarly, DOAH has no jurisdiction, in the

exercise of its quasi - judicial responsibility , to interpret a

rule in a manner that expands the reach of the statute.

§ 120.52(8)(c), Fla. Stat. (2002).

An agency may adopt onl y rules that

implement, interpret, or make specific the

particular powers and duties granted by the

enabling statute. . . . Statutory language

. . . generally describing the powers and

functions of an agency shall be construed to

extend no further than th e particular powers

and duties conferred by the same statue.

§ 120.52(8), Fla. Stat. (2002) (flush paragraph) .

4 5 . Petitioner ta citly argues that the operative statute

expressly authorizes the rule to expand the reach of the

statute. Petitioner re lies on language in Subsection

1008.24(1), Florida Statutes (2002), that provides:

It is unlawful for anyone knowingly and

willfully to violate test security rules

adopted by the State Board of Education for

mandatory tests administered by . . . school

districts . . . (emphasis supplied)

46 . The preceding statutory language cannot be construed

as a delegation of legislative authority for the Board to adopt

a rule that enlarges the terms of the enabling legislation. A

conclusion that the legislature int ended to provide no definite

parameters to define prohibited assistance would vest unbridled

discretion in the agency and risk violation of the non -

delegation doctrine in Florida. Fla. Const., Art. 2, § 3.

47 . The non - delegation doctrine requires the l egislature

to provide standards and guidelines in each enactment that are

ascertainable by reference to the terms of the enactment.

Bush v. Shiavo , 885 So. 2d 321 (Fla. 2004); B.H. v. State , 645

So. 2d 987, 992 - 994 (Fla. 1994); Askew v. Cross Key Waterway s ,

372 So. 2d 913, 925 (Fla. 1978). Petit ioner and DOAH should

construe the operative statute, whenever possible, in a manner

that preserves the constitutionality of the statute. See , e.g. ,

Spurli n v. School Board of Sarasota County , 520 So. 2d 294, 296 -

297 (Fla. 2d DCA 1988) and Von Stephen s v. School Board of

Sarasota County , 338 So. 2d 890, 894 (Fla. 2d DCA 1976) (avoiding

statutory construction that would authorize unbridled agency

discretion even though statute included no express limits).

Petitioner and DOAH should also construe the operative rule in a

manner that preserves the validity of the rule by limiting the

rule to standards and guidelines prescribed in the statute.

48 . Petitioner relies on non - rule policy stated in the

test manual, security agreement, and pre - test training to

enlarge, amend, modify, or contravene the specific acts

prohibited in Subsection 1008.24(1)(c), Florida Statutes (2002).

However, Petitioner cites no legal authority that authorizes an

agency to accomplish by non - rule p olicy that which the agency is

prohibited from accomplishing by rule.

49 . The test manual directs a proctor to read the test

directions to examinees and to provide no additional help.

Subsection 1008.24(1)(f), Florida Statutes (2002), makes it a

violatio n for Respondent to, "Fail to follow test administration

directions specified in . . . test . . . manuals. . . ."

However, the Complaint does not charge Respondent with violating

Subsection 1008.24(1)(f), Florida Statutes (2002).

50 . The Administrative Procedure Act limits the scope of

this proceeding to the factual grounds and charges alleged in

the Complaint. The Complaint alleges that Respondent provided

answers, other "inappropriate assistance," and coached examinees

or altered or interfered with t heir responses. 11

51 . Petitioner cannot find Respondent guilty of a charged

violation based on evidence of grounds not specifically alleged

in the Complaint. Thomas Pevisani, M.D. v. Department of

Health , Case N o. 1D04 - 2488 (Fla. 1st DCA July 20, 2005); Ghani

v. Department of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998);

Cotrill v. Department of Insurance , 685 So. 2d 1371 (Fla. 1st

DCA 1996). In Cotrill , the court reversed a finding that the

licensee violated statutes referred to in the administrat ive

complaint based on factual grounds not alleged in the complaint.

Judge Benton explained:

Predicating disciplinary action against a

licensee on conduct never alleged in an

administrative complaint . . . violates the

Administrative Procedure Act. To

c ountenance such a procedure would render

nugatory the right to a formal

administrative proceeding to contest the

allegations of an administrative complaint.

Cotrill , 685 So. 2d at 1372.

52 . The Complaint does not allege assistance of any kind

or by an y means as the factual ground for the charged violation.

The alleged assistance is limited to assistance that provided

answers or had the effect of coaching an examinee or altering or

interfering with the response of an examinee. Petitioner is

limited to proof of the acts specifically alleged as grounds for

the charged violations. 12

53 . The record evidence does not set forth a reasonable

basis for a finding that an interpretation of terms such as

"assistance," "coach," "alter," and "interfere" requires special

agency insight or expertise. Petitioner did not articulate any

underlying technical reasons for deference to agency expertise.

Johnston, M.D. v Department of Professional Regulation, Board of

Medical Examiners , 456 So. 2d 939, 943 - 944 (Fla. 1st DCA 1984).

54 . Petitioner relies on the quoted statutory terms to

propose disciplinary action against Respondent's teaching

certificate. The quoted terms must be construed strictly in

favor of the licensee and against the imposition of discipline.

S tate ex. rel. Jordan v. Pattishall , 99 Fla. 296, 126 So. 147

(1930); Ocampo v. Department of Health , 806 So. 2d 633 (1st DCA

Fla. 2002); Equity Corp. Holdings, Inc. v. Department of Banking

and Finance, Division of Finance , 772 So. 2d 588, 590 (Fla. 1st

DC A 2000); Jonas v. Florida Department of Business and

Professional Regulation , 746 So. 2d 1261 (Fla. 3d DCA 2000);

Loeffler v. Florida Department of Business and Professional

Regulation , 739 So. 2d 150 (Fla. 1st DCA 1999); Elmariah v.

Department of Professi onal Regulation, Board of Medicine , 574

So. 2d 164 (Fla. 1st DCA 1990); Rush v. Department of

Professional Regulation , 448 So. 2d 26 (Fla. 1st DCA 1984);

Ferdego Discount Center v. Department of Professional

Regulation , 452 So. 2d 1063 (Fla. 3d DCA 1984); Bowling v.

Department of Insurance , 394 So. 2d 165 (Fla. 1st DCA 1981);

Lester v. Dept. of Professional and Occupational Regulations ,

348 So. 2d 923 (Fla. 1st DCA 1977).

55 . Petitioner bears the burden of proof in this

proceeding. Petitioner must show by clear and convincing

evidence that Respondent provided prohibited assistance to an

examinee, that the prohibited assistance violated the statutes

or rules cited in the Complaint, and that the proposed penalty

is reasonable. Department of Banking and Fi nance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); State ex rel. Vining v. Florida Real Estate

Commission , 281 So. 2d 487 (Fla. 1973).

56 . The requirement for clear and convincing evidence

imposes an intermediate level of proof on Petitioner.

Petitioner must prove material factual allegations by more than

a preponderance of the evidence, but the proof need not be

beyond and to the exclusion of a reasonable doubt. Inquiry

Concerning a Judge No. 93 - 62 , 645 So. 2d 398, 404 (Fla. 1994);

Lee County v. Sunbelt Equities, II, Limited Partnership , 619 So.

2d 996, 1006 n. 13 (Fla. 2d DCA 1993).

57 . The Florida Supreme Court has addressed the clear an d

convincing standard of proof with attention to detail. In

relevant part, the court stated:

This intermediate level of proof entails

both a qualitative and quantitative

standard. The evidence must be credible;

the memories of witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without

hesitancy. . . . [T]he facts to which

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witness must be lacking

in 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 establ ished.

Inquiry Concerning a Judge , 645 So. 2d at 404 (quoting in part

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)).

58 . In order to satisfy the qualitative standard for clear

and convincing evidence, incriminating evidence must b e

credible, material facts must be " distinctly remembered," and

testimony must be "precise" and "explicit . " This qualitative

standard has been adopted by each District Cour t of Appeal in

the state. E.F. v. State , 889 So. 2d 135, 139 (Fla. 3d DCA

2004); K - Mart Corporation v. Collins , 707 So. 2d 753, 757 n.3

(Fla. 2d DCA 1998); McKesson Drug Co. v. Williams , 706 So. 2d

352, 353 (Fla. 1st DCA 1998); Kingsley v. Kingsley , 623 So. 2d

780, 786 - 787 (Fla. 5th DCA 1993); Slomowitz v. Walker , 429 So.

2d 797, 800 (F la. 4th DCA 1983).

59 . The testimony of T.M. and S.O. and the written

statement of L.M. do not satisfy the qualitative standard for

clear and convincing evidence. The testimony and written

statement contain little more than conclusory statements that

Res pondent ass isted each examinee. None of those students

substantiate their conclusions with precise and explicit

testimony concerni ng the statements and conduct of Respondent

that the students distinctly remembered. An analogous

conclusory statement has b een judicially held to be less than

clear and convincing. As the court explained :

[c]onclusory testimony, unsubstantiated by

facts in evidence, that a patient has . . .

the possibility of substantial harm to

herself, is insufficient to satisfy the

statuto ry criteria by the clear and

convincing evidence standard.

Boller v. State , 775 So. 2d 408, 410 (Fla. 1st DCA 2000). See

also E.F. , 889 So. 2d at 139 (delusion that patient is a free

man lacks evidence to support a finding that delusion poses a

real and present threat of escape). Compare Inquiry Concerning

a Judge , 645 So. 2d at 404 ( testimony as to when various

meetings took place and what transpired during the meetings was

direct, unequivocal, and consistent) with Inquiry Concerning a

Judge , 645 So. 2d at 405 ( testimony that lacks specific

recollection or exhibits doubt or confusion is not clear and

convincing).

60 . The trier of fact was unable to determine whether the

testimony of T.M. and the written statement of L.M. were

credible for purposes of th e qualitative standard. The trier of

fact was unable to observe either student's demeanor or candor.

61 . The testimony of J.C. did not satisfy the qualitative

standard for clear and convincing evidence. Although t he

content of the testimony was sufficie ntly specific, the trier of

fact was unable to assess the credibility of the witness by

observing his dem eanor or candor under oath . Moreover, it i s

less than clear and convincing that the effect of the alleged

assistance from Respondent was to coach J.C. or to alter or

interfere with his response to the question. The evidence is

less than clear and convincing that the alleged assistance

caused J.C. to sele ct an answer to a test question that was any

different from the answer he would have selected in the absence

of the alleged assistance.

62 . The testimony of L.H . is legally insufficient to

sati sfy the quantitative standard for clear and convincing

evidence. Her testimony is not corroborated by other evidence

that is clear and convincing. 13 Uncorrobo rated testimony from

one fact witness is insufficient to prove an essential ground

for a violation charged in the Complaint. Compare Daniels v.

Gunter , 438 So. 2d 184, 184 - 185 (Fla. 2d DCA 1983)

(uncorroborated testimony of licensee's secretary is not

suf ficient to sustain relevant findings) with Martuccio v.

Department of Professional Regulation, Board of Optometry , 622

So. 2d 607, 609 - 610 (Fla. 1st DCA 1993)(uncorroborated testimony

of applicant is sufficient for preponderance of evidence in

challenge to test score achieved in professional license

examination). But see Werner v. State, Department of Insurance

and Treasurer , 689 So. 2d 1211, 1213 (Fla. 1st DCA

1997)(acknowledging conflict with the decision in Daniels ).

63 . Assuming arguendo that uncorr oborated testimony of a

single witness were legally sufficient to satisfy the

quantitative standard for clear and convincing evidence, the

uncorroborated testimony of L.H. fail s the quantitative test for

evidential reasons. L.H. and W.D. provided apparent ly

conflicting testimony. Petitioner did not resolve the apparent

conflict by clear and convincing evidence. The weight to be

accorded conflicting testimony is within the province of the

trier of fact. Werner , 689 So. 2d at 1213. I nference and

surmise that L.H. and W.D. were not in the same examination room

is not clear and convincing evidence . Tenbroeck v. Castor , 640

So. 2d 164, 167 - 168 (Fla. 1st DCA 1994).

64 . The sum total of the testimony from L.H. and W.D. is

not of sufficient weight to produc e in the mind of the trier of

fact a firm conviction that Respondent provided prohibited

assistance in violation of Subsection 1008.24(1)(c), Florida

Statutes (2002), and Florida Administrative Code

Rule 6A - 10.042(1)(c) and (d). The incriminatory evidenc e

provided by the remaining students do es not satisfy the

qualitative standard for clear and convincing evidence. Inquiry

Concerning a Judge , 645 So. 2d at 405; Slomowitz , 429 So. 2d at

800.

65 . Subsection 1012.795(1)(c), Florida Statutes (2002),

author izes Petitioner to discipline the teaching certificate of

Respondent if Respondent were found guilty of providing

prohibited assistance that involved an act of moral turpitude or

gross immorality. Moral turpitude and immorality are not

synonymous terms. Each term is separately defined by rule and

each describes a separate standard of conduct.

66 . A determination of whether a teacher deviates from a

standard of conduct is not infused with agency expertise. Such

a determination is the province of the tri er of fact. See Bush

v. Brogan , 725 So. 2d 1237, 1239 - 1240 (Fla. 2d DCA 1999)(finding

that conduct was not gross immorality is a finding of fact that

is not infused with agency policy); accord Dunham v. Highlands

County School Board , 652 So. 2d 894, 896 ( Fla. 2d DCA 1995).

67 . Florida Administrative Code Rule 6B - 4.009(6) is

instructive and defines moral turpitude, in relevant part, to be

a crime. If it were determined that Respondent provided

prohibited assistance to one or more of the FCAT examinees in

March 2003, Subsection 1008.24(2), Florida Statutes (2002),

makes the violation a crime. In relevant part, the statute

provides:

(2) Any person who violates this section

commits a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s.

775.083. (emphasis supplied)

68 . The rule further defines moral turpitude to be a crime

evidenced by an act of "baseness, vileness, or depravity in the

private and social duties" that Respondent owes to her "fell ow

man or society in general." The quoted terms must be construed

strictly in favor of Respondent and against the imposition of

discipline. Pattishall , 126 So. 147; Ocampo , 806 So. 2d 633;

Equity Corp. , 772 So. 2d at 590; Jonas , 746 So. 2d 1261;

Loeffler , 739 So. 2d 150; Elmariah , 574 So. 2d 164; Rush , 448

So. 2d 26; Ferdego , 452 So. 2d 1063; Bowling , 394 So. 2d 165;

Lester , 348 So. 2d 923. It is less than clear and convincing

that the alleged prohibited assistance from Respondent involved

an act that was base, vile, or depraved.

69 . Flor ida Administrative Code Rule 6B - 4.009(2) is

instructive and defines the term "immorality" as:

. . . conduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerne d

or the education profession into public

disgrace or disrespect and impair the

individual's service in the community.

70 . A finding that the alleged prohibited assistance is an

act of immorality must satisfy a three - part conjunctive test.

The conduct of the teacher must be:

. . . [1] inconsistent with the standards of

public conscience and good morals (emphasis

supplied), . . . [2] sufficiently notorious

. . . to disgrace the teaching profession

and [3] impair the teacher's service in the

community. (lat ter emphasis the court's).

Cf. McNeill v. Pinellas County School Board , 678 So. 2d 476 , 477

(Fla. 2d DCA 1996)(citing McKinney v. Castor , 667 So. 2d 387

(Fla. 1st DCA 1995) and Sherburne v. School Board of Suwanee

County , 455 So. 2d 1057, 1058 (Fla. 1st D CA 1984)(each case

involving teacher dismissal by a local school district).

71 . The definition of immorality measures the conduct of

Respondent against a standard described in the relevant rule as

"good morals . " The term "good morals , " like the term "goo d

moral character , " is unusually ambiguous and can be defined in

an almost unlimited number of ways, depending on the views of

the person formulating a definition. As the Florida Supreme

Court has explained:

The term "good moral character" . . . by

itself , is unusually ambiguous. It can be

defined in an almost unlimited number of

ways for any definition will necessarily

reflect the attitudes, experiences, and

prejudices of the definer. Such a vague

qualification, which is easily adapted to

fit personal v iews and predilections, can be

a dangerous instrument for arbitrary and

discriminatory [agency action]. Konigsberg

v. State Bar of California , 353 U.S. 252,

262 - 263, 77 S. Ct. 722, 728, 1 L. Ed. 2d 810

(1957).

Board of Bar Examiners , 358 So. 2d 7, 8 - 9 ( Fla. 1978).

72 . A determination of whether Respondent deviated from a

standard of conduct is not infused with agency expertise and is

the province of the trier of fact. See Bush , 725 So. 2d at

1239 - 1240; Dunham , 652 So. 2d at 896. Relevant terms such as

"good morals" must be construed strictly in favor of Respondent

and against the imposition of discipline. Pattishall , 126 So.

147; Ocampo , 806 So. 2d 633; Equity Corp. , 772 So. 2d at 590;

Jonas , 746 So. 2d 1261; Loeffler , 739 So. 2d 150; Elmariah , 574

So . 2d 164; Rush , 448 So. 2d 26; Ferdego , 452 So. 2d 1063;

Bowling , 394 So. 2d 165; Lester , 348 So. 2d 923. It is less

than clear and convincing that the alleged prohibited assistance

was inconsistent with good morals.

73 . Assuming arguendo that the alle ged prohibited

assistance was inconsistent with good morals, t he alleged

conduct was not sufficiently notorious to disgrace the teaching

profession. Petitioner cannot rely on its own activities,

including the invalidation of test scores, investigative

int erviews of 26 students, and a public meeting, to prove

conduct is widely known. Sherburne , 455 So. 2d at 1061;

Baker v. School Board of Marion County , 450 So. 2d 1194 (Fla.

5th DCA 1984).

74 . The alleged prohibited assistance did not impair

Respondent's service in the community. Respondent's service in

the community is measured by her effectiveness in the classroom.

McNeill , 678 So. 2d at 477 - 478, citing McKinney , 667 So. 2d at

387 and Sherburne , 455 So. 2d at 1062. The evidence is clear

and convincin g that the alleged prohibited assistance did not

impair Respondent's effectiveness in the cl assroom. Nor did the

allege d prohibited assistance seriously reduce Respondent's

effectiveness as an employee of the District within the meaning

of Subsection 1008 .24(1)(f), Florida Statutes (2002).

75 . The Complaint charges that the alleged prohibited

assistance violated Principles of Professional Conduct for the

Education Profession prescribed in Florida Administrative Code

Rule 6B - 1.006(3)(a) and (e), (4)(b), an d (5)(a) (standards of

professional conduct). § 1012.795(1)(i), Fla. Stat. (2002). It

is less than clear and convincing that the alleged prohibited

assistance violated the standards of professional conduct.

76 . Except for the standard of professional co nduct

prescribed in Florida Administrative Code Rule 6B - 1.006(3)(a),

culpable intent is an essential requirement of the remaining

standards. Petitioner did not show by clear and convincing

evidence that the alleged prohibited assistance from Respondent

in volved the requisite intent to: expose a student to

unnecessary embarrassment or disparagement , distort or

misrepresent facts concerning an educational matter in direct or

i ndirect public expression , or practice dishonest y in all

professional dealings. F la. Admin. Code R. 6B - 1.006(3)(e),

(4)(b), and (5)(a).

77 . If it were found that Respondent provided prohibited

assistance to L.H., that ground would be legally insufficient to

support a conclusion that Respondent violated the professional

standard for honesty in all professional dealings. The assumed

prohibited assistance would involve a single act of misconduct

during the first day of the FCAT in March 2003. A single act of

misconduct does not constitute a dishonest practice in "all

professional deal ings." Cf . , Werner , 689 So. 2d at 1214

(holding, inter alia , that term "practices" contemplates more

than a solitary lapse, and a single act of misconduct does not

evidence dishonest "practices").

78 . Florida Administrative Code Rule 6B - 1.006(2) requires

Respondent to make a reasonable effort to protect a student from

conditions harmful to learning, a student's mental health, or

the student's physical health or safety. The evidence is less

than clear and convincing that the alleged prohibited assistance

materially harmed the learning experience of L.H. at Gemini; or

that L.H. experienced either a temporary or permanent impairment

of her physical or mental health. There is no evidence that the

alleged prohibited assistance endangered the physical safety o f

L.H. Nor is there any evidence that the other students who

testified or provided a written statement for Petitioner

suffered from the alleged prohibited assistance.

79 . If it were determined that Respondent provided

prohibited assistance, it is less than clear and convincing that

aggravating circumstances exist which would warrant revocation

or suspension of Respondent's teaching certificate pursuant to

Subsection 1012.795(1), Florida Statutes (2002). Petitioner

submitted no evidence of any prior dis ciplinary history.

80 . Numerous mitigating factors in evidence would support

a written reprimand authorized in Subsection 1012.796(7)(f),

Florida Statutes (2002). Respondent has been and is an

excellent teacher and a valuable asset to the District. Th e

alleged prohibited assistance inv olved a single isolated

incident and was neither continuing nor part of a pattern and

practice. The invalidation of FCAT results for 26 students did

not prevent any of the students from progressing to the sixth

grade. N or did the invalidation of the test results prevent the

District from testing 95 percent of the fifth - grade students.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final o rder finding

Respondent not guilty of the violations charged in the Complaint

and imposing no penalty against the teaching certificate of

Respondent.

DONE AND ENTER ED this 11th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 w ith the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2005.

ENDNOTES

1/ Respondent did not object to the admissibility of the

written statement of the fifth student or to the deposition

testimony of the other two students.

2/ Fla. Adm in . Code R. 6A - 10.042(1)(c) provides, inter alia ,

that examinees shall not be assisted in answering questions by

any means. Subsection 1008.24(1)(c), Fl orida Stat utes (2002),

provides that it is unlawful for any person to knowingly or

willfull y coach examinees during testing or to alter or

interfere with the response of an examinee. For reasons stated

in the Conclusions of Law, the prohibition in the rule against

assistance by "any means" must be construed, in relevant part,

to be limited to a ssistance the effect of which is to coach an

examinee or to alter or interfere with the response of an

examinee.

3/ See Inquiry Concerning A Judge No. 93 - 62 , 645 So. 2d 398,

404 (Fla. 1994).

4/ Id.

5/ E.F. v. State , 889 So. 2d 135, 139 (Fla. 3d DCA 2004)(citing

Boller v. State , 775 So. 2d 408, 409 (Fla. 1st DCA 2000) for the

proposition stated).

6/ Inquiry Concerning a Judge , 645 So. 2d at 404.

7/ T.M. "remembered" only one instance, but did not recall the

exact question other than it involved so mething about the moon.

He couldn't remember if Respondent answered the question or

confirmed his answer, how Respondent assisted him, or what

answer he gave. His testimony was inconsistent in that he

stated he could recall only one question , but that Re spondent

gave him hints on other questions. T.M. did not disclose to the

trier of fact specific details that would enable the trier of

fact to independently determine whether the statements or

conduct of Respondent were hints. L.M. stated that Respondent

wrote out a problem and offered a guess , but did not provide the

trier of fact with details concerning the "problem" or other

specifics on which the trier of fact could independently find

that Respondent "guessed" an answer. S.O. recalled only one

"insta nce , " but could not recall the specific question, the

answer he gave, or what Respondent said or did to give him the

answer or confirm his answer.

8/ J.C. testified that Respondent did not give him the answer

to the question.

9/ W.D. sat near the middl e or back of the classroom where he

had a good view of the rest of the class and whether the

examinees were walking up to the desk of the proctor. On cross

examination, W.D. testified that he was not watching the entire

time because he was focused on his test. However, no evidence

shows that W.D. could not hear questions that other examinees

posed to the proctor. L.H. testified that she "told" Respondent

she did not understand a question and "asked" her for help.

L.H. was unclear whether she went up to the desk of Respondent

or made the statements from where L.H. sat. Even if the

testimony were clear and convincing that L.H. went to the desk

of Respondent, it is less than clear and convincing that the

conversation would not have been audible to W.D.

10/ The weight to be given conflicting evidence concerning a

material fact is within the province of the trier of fact.

K - Mart Corporation v. Collins , 707 So. 2d 753, 755 (Fla. 2d DCA

1998).

11/ The Complaint supplies a dearth of factual alleg ations as

grounds for the charged violations.

3. During March 2003, Respondent knowingly

and unlawfully violated standardized testing

procedures by providing answers and other

inappropriate assistance to students during

the administration of the Florida

Comprehensive Assessment Test (FCAT). As a

result of Respondent's actions, FCAT scores

for 42 students were invalidated. On or

about March 31, 2003 the school district

reassigned Respondent to another location.

Count 4: The . . . Respondent . . . coach ed

examinees during testing or altered or

interfered with the examinee's responses on

a test. . . .

Complaint at 1 - 2.

The remainder of the Complaint consists of various recitations

of language in the relevant statutes and rules.

12/ The Complaint is pa tently devoid of specific factual

allegations needed to satisfy the notice requirements enunciated

in Cotrill and Ghandi . However, Respondent did not object to

the sufficiency of the factual allegations in the Complaint and

did not object to the admissibi lity of evidence of facts not

alleged in the Complaint. See Department of Children and

Families v. Morman , 715 So. 2d 1076, 1077 (Fla. 1st DCA

1998)(reversing ALJ's sua sponte dismissal of a charge in the

administrative complaint, in relevant part, becaus e the licensee

failed to object to the lack of specificity). Nevertheless,

findings that Respondent violated relevant statutes and rules

based on factual grounds not alleged in the Complaint would

eviscerate fundamental principles of due process. See Lus skin

v. State of Florida Agency for Health Care Administration, Board

of Medicine , 731 So. 2d 67, 68 (Fla. 4th DCA 1999)(agency cannot

find licensee did not practice medicine in accordance with the

applicable standard of care when the administrative compla int

does not allege the act or omission evidenced in the record as a

ground for the charged violation ) ; Arpayoglou v. Department of

Professional Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992)(agency

cannot find licensee guilty of statutory violation charged in a

Notice of Intent when Notice of Intent fails to make specific

factual allegations concerning the charges); Board of Trustees

of the Internal Improvement Trust Fund of the State of Florida

v. Barnett , 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988)(Board of

T rustees cannot withdraw previously issued "consent to use" on

grounds not stated in the written notice of withdrawal); Decola

v. Castor , 519 So. 2d 709 (Fla. 2d DCA 1988)(agency cannot use

evidence of allegations not in complaint to increase penalty);

Ster nberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA

1985)(agency cannot charge a licensee violated a statute by

performing three unnecessary tests and find the licensee guilty

of violating the sta tute by performing a fourth test not alleged

in the administrative complaint); Hunter v. Department of

Professional Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA

1984)(agency cannot charge licensee with statutory violation on

the ground that licensee abando ned one construction project and

find licensee violated statute on ground licensee abandoned

second project not alleged in the administrative complaint);

Wray v. Department of Professional Regulation, Board of Medical

Examiners , 435 So. 2d 312, 315 (Fla. 1 st DCA 1983)(agency cannot

charge licensee with misconduct on alleged ground that licensee

prescribed excessive and improper medications and find licensee

guilty of misconduct on the un - alleged ground that licensee

failed to refer patient).

13/ The remai ning testimony and written statement submitted by

Petitioner does not explain or supplement the specific acts to

which L.H. testified within the meaning of Subsection

120.57(1)(c), Florida Statutes (2004). Rather, the remaining

testimony and written state ment attest to separate acts that may

show similar fact evidence within the meaning of Subsection

120.57(1)(d), Florida Statutes (2004). The written statement is

hearsay that does not explain or supplement competent and

substantial evidence and cannot for m the basis of a finding of

fact. See Tenbroeck v. Castor , 640 So. 2d 164, 167 - 168 n.3

(Fla. 1st DCA 1994)(precluding hearsay evidence that does not

explain or supplement competent and substantial evidence).

COPIES FURNISHED :

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 3239 9 - 0400

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 3239 - 0400

Daniel J. Woodr ing, General Counsel

Department of Education

1244 Turlington 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 t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.