06-001031 John Roques vs. Department Of Education Status: Closed Recommended Order on Tuesday, June 20, 2006.

Summary: Petitioner failed to prove that Respondent`s invalidation of subpart one, and thus subparts two and three, of the Florida Educational Leadership Exam was improper when he refused to remove his Bluetooth earpiece from his ear at the start of the exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ROQUES

)

Petitioner, )

)

vs. ) Case No. 06 - 1031

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administ rative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on May 22, 2006.

Petitioner, three of Respondent's witnesses, and the court

reporter participated by videoconference in Mi ami, Florida.

Respondent's counsel and one of its witnesses attended the

hearing in Tallahassee.

APPEARANCES

For Petitioner: John Roques, pro se

17475 Southwest 182 Avenue

Miami, Florida 33187

For Respondent : Scott Odenbach

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue is whethe r Petitioner is entitled to the

validation and scoring of his test scores on the Florida

Educational Leadership Examination on January 21, 2006.

PRELIMINARY STATEMENT

By letter dated March 1, 2006, Respondent advised

Petitioner that it had invalidated his test scores for subtest

one of the Florida Educational Leadership Examination on

January 21, 2006. The letter states that Petitioner had an

earpiece for a cell phone in his ear during subtest one. By

letter dated March 6, 2006, Petitioner requested a fo rmal

hearing.

At the hearing, Petitioner called one witness and offered

into evidence two exhibits: Petitioner Exhibits 1 - 2.

Respondent called four witnesses and offered into evidence nine

exhibits: Respondent Exhibits 1 - 9. All exhibits were admitted.

However, the Administrative Law Judge allowed Petitioner ten

days to file Petitioner Exhibit 1. When Petitioner failed to do

so, the exhibit was deemed withdrawn.

The court reporter filed the transcript on June 12, 2006.

Respondent filed a Proposed Re commended Order on June 20, 2006.

FINDINGS OF FACT

1. On January 21, 2006, Petitioner took the Florida

Educational Leadership Examination (FELE) at a site in Miami.

Persons who take and pass the FELE are eligible for

certification as administrators. As i s the case with all

persons taking the FELE, prior to attending the examination,

Petitioner received the "Certification Examinations for Florida

Educators . . . Registration Bulletin" (Registration Bulletin).

2. The Registration Bulletin warns prominently on page 14:

I understand that examinees cannot bring any

electronic communication or recording

device, including a cellular phone, beeper,

personal digital assistant (PDA) such as a

Palm Pilot, or listening device such as a

compact disc or tape player, into the

testing room or break areas around the

testing room.

3. Prior to taking the FELE, Petitioner also received a

document titled, "Important Information about Cheating

Behaviors" (Booklet). Section 1 of the Booklet warns that

"cheating" is defined as, amo ng other things: "During the

examination, using, or attempting to use, prohibited aids, as

identified in Section 2."

4. Section 2 of the Booklet describes "prohibited aids" as

follows:

You cannot bring any of the following

prohibited aids to the test room. They

include: cell phones or any other

electronic communication or recording device

such as a beeper, personal digital assistant

(PDA) such as a Palm Pilot, or listening

device such as a compact disc or tape

player. . . .

5. The last section of the Boo klet is titled, "General

Testing Information and Procedures." This section warns: "If

you bring any prohibited items such as a cell phone to the test,

you will not be admitted to the test room." The second to last

page of the Booklet restates: "I under stand that examinees

cannot bring any electronic communication or recording device,

including a cellular phone, beeper, personal digital assistant

(PDA) such as a Palm Pilot, or listening device such as a

compact disc or tape player, into the testing room or break

areas around the testing room." Paragraph 4 of the last page of

the Booklet warns one last time: "Do not bring to the test room

any prohibited aids such as cell phones (see the enclosed letter

for other prohibited aids); leave them locked in you r car. You

will not be admitted to the test if you bring them with you. If

you are discovered to have prohibited aids during the test, your

test scores may be invalidated."

6. Test administrators, room supervisors, and proctors

receive a Test Administrati on Manual for the Florida Educational

Leadership Examination. Page 17 of the manual advises that the

examinees receive several warnings not to bring prohibited aids,

including cell phone, into the test room or break areas around

the test room. The manual informs the testing staff:

DO NOT ADMIT an examinee to a test room if

you observe a cell phone or other prohibited

device. Tell the examinee he or she cannot

enter with the device but may be admitted if

he or she can return without it (e.g., lock

it in t he car) AS LONG AS IT IS POSSIBLE TO

DO SO AND RETURN TO CHECK IN BY THE TIME

TESTING BEGINS (15 minutes after the

reporting time on the admission ticket).

The manual adds:

If the prohibited aid is not discovered

until after the examinee has been admitted

to the test room, see Identifying and

Documenting Suspected Cheating , incident

number 1 on the next page.

7. The manual lists three incidents, arranged in ascending

order of seriousness. These incidents and the appropriate

procedures for the testing st aff are:

1. Incident: It is discovered that an

examinee has a prohibited device, SUCH AS A

CELL PHONE, but the examinee is not

immediately suspected of using the device

(e.g., a cell phone rings and the examinee

turns it off without using it).

PROCEDURE :

? Quietly inform the examinee that he or

she is in possession of a prohibited aid,

which the examinee has been informed is not

permitted in the test room.

? Tell the examinee to place the aid in the

envelope that has been provided by the

Institute for t hat purpose and write the

examinee's name on the envelope.

? Hold the envelope in a safe location.

? Tell the examinee that the item may be

retrieved at the end of the test.

? If the examinee refuses to relinquish the

prohibited device, follow MISCON DUCT

guidelines on page 21.

? Carefully document the incident, noting

the time and duration of the incident, for

inclusion in the irregularity reports, C - 1

and C - 2. Attach the answer folder to the

C - 1 irregularity report.

2. Incident: An examinee is observed USING

a prohibited aid, such as a cell phone or

photographic device, to obtain or

communicate test content either in the test

room or in break areas around the test room.

PROCEDURE:

? If the Room Supervisor does not observe

the event, notify hi m or her immediately; at

least two testing staff must observe and

document in writing the behavior and one of

them must be the Room Supervisor .

? NOTIFY THE TEST ADMINISTRATOR

IMMEDIATELY. If the examinee is to be

dismissed during the test, the Administ rator

should do the dismissal, if available to do

so.

? The Room Supervisor should quietly inform

the examinee that his or her test is being

stopped because of the prohibited aid and

ask him or her to step outside the room.

The Room Supervisor should ta ke along and

protect the test materials and prohibited

aid.

? The prohibited device should be examined

to determine if there is the possibility

that confidential test information was

recorded (for example, if the device is a

scanner pen or if a cell phon e has a lens

device). If so, document that information

on the C - 2, Cheating and Misconduct

Observation Report. DO NOT ATTEMPT TO

CONFISCATE THE DEVICE.

? If the examinee hides the device, ask him

or her to produce it, but do not touch the

examinee.

? The Administrator should inform the

examinee that he or she is being dismissed

from the test. If asked what will happen

next, say only that the Department of

Education will provide further information.

? Carefully document the incident, noting

the time and duration of the incident, on

the irregularity reports, C - 1 and C - 2.

Attach the answer folder to the C - 1

irregularity report.

? If the examinee causes a disturbance,

such as refusing to leave or return test

materials, see MISCONDUCT guidelines on pa ge

21.

3. Incident: An examinee is SEEN WITH A

"CHEAT SHEET" OR IS OBSERVED USING NOTES OR

OTHER WRITTEN MATERIALS to obtain

information or pass information to another

examinee.

PROCEDURE:

? If the Room Supervisor does not observe

the event, notify h im or her immediately;

at least two testing staff must observe and

document in writing the behavior and one of

them must be the Room Supervisor .

? NOTIFY THE TEST ADMINISTRATOR

IMMEDIATELY. If the examinee is to be

dismissed during the test, the Admini strator

should do the dismissal, if available to do

so.

? The Room Supervisor should quietly inform

the examinee that his or her test is being

stopped because of the written notes and ask

him or her to step outside the room, taking

the test materials and written notes with

you.

? The notes should be examined. CONFISCATE

THE NOTES. If the examinee hides the notes,

ask him or her to produce it, but do not

touch the examinee.

? The Administrator should inform the

examinee that he or she is being dismis sed

from the test. If asked what will happen

next, say only that the Department of

Education will provide further information.

? Carefully document the incident, noting

the time and duration of the incident, on

the irregularity reports, C - 1 and C - 2.

At tach the confiscated notes and answer

folder to the C - 1 irregularity report.

8. Respondent's exhibit omits page 21 of the manual, which

contains the "misconduct guidelines. The only other relevant

provision in the portion of the manual included in the exh ibit

provides that the Room Supervisor should greet the examinees

with a scripted introduction. This introduction includes the

warning: "Cell phones, books, study aids, calculators,

electronic devices, and papers of any kind, including scratch

paper, are NOT permitted during the testing."

9. The Room Supervisor posted in a prominent place at the

front of the test room a notice, in large print, stating: "cell

phones are prohibited in test rooms and surrounding break

areas." Petitioner could not possibly h ave avoided seeing the

notice, which was printed on yellow paper, prior to starting

subpart one of the FELE.

10. Although Petitioner arrived at the test room in time

for the commencement of subpart one of the FELE, he was late

enough that he missed some of the pretest instructions. As he

entered the test room, he was wearing an earpiece, which

communicates with his cell phone by way of Bluetooth wireless

technology, provided the cell phone is sufficiently close to the

earpiece.

11. As Petitioner walked past the Ro om Supervisor to take

a chair in the test room, the Room Supervisor immediately

noticed the ear piece and recognized it as a Bluetooth device,

which would allow for wireless, remote communication with a cell

phone. The Room Supervisor informed Petitioner that he needed

to remove the device, but Petitioner replied only that he would

turn it off. Lacking much time for an extended exchange with

Petitioner, the Room Supervisor joked that such devices cause

cancer and directed one of the proctors to help Petit ioner

complete the registration application.

12. By the time that Petitioner had entered the test room,

the Room Supervisor had already given the instructions on how to

complete the registration application. As Petitioner was taking

his seat, the Room Super visor began giving the instructions on

how to take the test.

13. For some reason, Respondent introduced into the record

a registration application of Petitioner for the October 22,

2005, administration of the FELE. However, Petitioner likely

completed the sam e form for the January 21, 2006, administration

of the test. The form states, just above the examinee's

signature: "I hereby agree to the conditions set forth in the

Registration Bulletin . . .."

14. At least partly due to Petitioner's late arrival, the

grou p in his room was late starting the test, which was being

administered simultaneously in several separate rooms at this

test center. A few minutes after starting the test, the Test

Supervisor was told by the proctor, who had attended to

Petitioner, that P etitioner still had the earpiece in his ear.

The Room Supervisor informed the proctor to summon the Test

Administrator to handle the situation.

15. The Test Administrator entered the room a few minutes

later and saw the Bluetooth earpiece in Petitioner's ear while

he was taking subpart one of the FELE. During the next break,

the Test Administrator approached Petitioner and told him he

could not use the Bluetooth earpiece during the test.

Petitioner responded that the device was off and other examinees

had ce ll phones in their pockets and purses. The Test

Administrator offered to take the device up to his office.

Petitioner refused to relinquish the device. After considerable

coaxing, Petitioner finally agreed to remove the device during

the next two subpar ts of the test.

16. By letter dated March 1, 2006, Respondent informed

Petitioner that it was invalidating his scores on subtest one,

and thus subtests two and three, of the Florida Educational

Leadership Examination (FELE) administered on January 21, 2006.

T he letter states that several witnesses had seen Petitioner,

during subtest one, wearing in his ear an earpiece of a cell

phone.

17. There is no doubt that the Room Supervisor would have

allowed Petitioner to take all three subparts of the FELE, if

Petitioner had agreed to the simple request to remove his

Bluetooth earpiece. Petitioner tried to justify his

intransigence by contending that his earpiece was off and other

examinees had cell phones in their pockets or purses. Evidently

Petitioner was unaware on t he morning of the test that his

choice was to remove the earpiece before starting the test or

take the test with the earpiece in and have all of his scores

invalidated. Petitioner chose the second option, so Respondent

properly invalidated all of his scor es.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter. § 120.57(1), Fla. Stat.

(2005).

19. As an applicant, Petitioner has the burden of proof.

Department of Transportation v. J. W. C. Company, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981).

20. Section 1012.56(8)(a), Florida Statutes (2005),

authorizes Respondent to enter into a contract for the

administration of the FELE. Florida Administrative Code Rule

6A - 4.00821(9)(a) requires that a properly authenticated sco re on

the FELE be free of "irregularity." Florida Administrative Code

Rule 6A - 4.00821(4)(a)2.a incorporates into the rules the

Registration Bulletin described above.

21. Petitioner clearly violated the test - security

procedures that Respondent has reasonably i mposed on the FELE.

Petitioner declined a timely invitation to remove his Bluetooth

earpiece prior to starting the test, so Respondent justifiably

invalidated his score on subpart one of the FELE. Petitioner

has not met his burden of proving that, based on this action,

Respondent's invalidation of his scores on subparts two and

three was improper.

RECOMMENDATION

It is

RECOMMENDED that the Department of Education enter a final

order invalidating Petitioner's scores on subparts one, two, and

three of th e Florida Educational Leadership Examination

administered on January 21, 2006.

DONE AND ENTERED this 20th day of June, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 wi th the Clerk of the

Division of Administrative Hearings

this 20th day of June, 2006.

COPIES FURNISHED:

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Suite 1514

325 West Gaine s Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John L. Winn

Commissioner of Education

Department of E ducation

Turlington Building Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Scott J. Odenbach

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

John Roques

17475 Southwest 182 Ave nue

Miami, Florida 33187

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

w ill issue the final order in this case.