09-004152PL Dr. Eric J. Smith, As Commissioner Of Education vs. Robert Forbis Status: Closed Recommended Order on Friday, March 19, 2010.

Summary: Petitioner did not prove the violations alleged in the Administrative Complaint because the conduct did not support the violations alleged. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-4152PL

)

ROBERT FORBIS, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 14, 2010, a duly-noticed hearing was held by

video teleconference with sites in Tallahassee and Jacksonville,

Florida, before Lisa Shearer Nelson, an administrative law judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: David Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Donald Pinaud, Esquire

Kattman & Pinaud, P.A.

4069 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated Section 1012.795(1)(j), Florida Statutes (2008), and Florida

Administrative Code Rule 6B-1.006, as alleged in the

Administrative Complaint and if so, what penalties should be

imposed?

PRELIMINARY STATEMENT

On March 30, 2009, Petitioner, Dr. Eric J. Smith, as

Commissioner of Education, filed an Administrative Complaint

against Respondent, Robert L. Forbis, alleging violations of

Section 1012.795, Florida Statutes (2008), and Florida

Administrative Code Rule 6B-1.006. On May 5, 2009, Respondent

filed an Election of Rights Form requesting a hearing pursuant to

Section 120.57(1), Florida Statutes. On August 04, 2009, the

matter was referred to the Division of Administrative Hearings

for assignment of an Administrative Law Judge.

On August 19, 2009, the case was noticed for a hearing to be

conducted October 21 through October 23, 2009, in Jacksonville,

Florida. On September 15, 2009, Petitioner filed an Agreed upon

Motion to Continue Formal Hearing, and the hearing was ultimately

rescheduled for January 14 and 15, 2010.

The hearing was held on January 14, 2010. The parties

submitted a Prehearing Statement including stipulated facts that

have been incorporated into the Findings of Fact below. At

hearing, Petitioner presented the testimony of E.W., N.K., L.S.,

S.C., S.D., K.N., 1/ Donald F. Nelson, Victoria Ash, John Williams

and Leroy Starling. Petitioner’s Exhibits 1-15 and 17-20 are

admitted into evidence. 2/ Respondent testified on his own

behalf, but presented no exhibits.

A Transcript of the proceedings was filed on February 1,

2010. At their request, the parties were afforded 20 days to

file their post-hearing submissions. Both parties timely

submitted Proposed Recommended Orders that have been carefully

considered in the preparation of this Recommended Order. All

references to Florida Statutes are to the 2008 codification

unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

certifying and regulating public school teachers in Florida.

Respondent is licensed in the field of mathematics, and has been

issued Florida Educator’s Certificate No. 130749. This

certificate is valid through June 30, 2011.

2. At all times pertinent hereto, Respondent was employed

by the Duval County School Board as a sixth-grade mathematics

teacher at Twin Lakes Academy Middle School in the Duval County

School District.

3. Respondent has been a teacher for over 40 years and has

taught mathematics at Twin Lakes Academy Middle School for six

years.

4. On March 7, 2008, Respondent signed an “FCAT

Administration and Security Agreement.”

5. By signing the security agreement, Respondent

acknowledged that he had read the 2008 FCAT SSS Reading,

Mathematics, and Science Test Administration Manual, and that he

would administer the FCAT exam in accordance to procedures

stipulated in the manual. Page 30 of the manual stated in bold

print that Respondent “may not . . . discuss test items or

answers with students, even after all test materials have been

returned.”

6. By signing the FCAT Administration and Security

Agreement, Respondent promised to avoid the following prohibited

activities:

1) Reading the passages, test items, or

performance tasks;

2) Revealing the passages, test items, or

performance tasks;

3) Copying the passages, test items, or

performance tasks;

4) Explaining or reading test items, or

passages for students;

5) Changing or otherwise interfering with

students responses to test items;

6) Causing achievement of schools to be

inaccurately measured or reported;

7) Copying or reading student responses.

7. By signing the security agreement, Respondent agreed to

abide by Florida Administrative Code Rule 6A-10.042, and Section

1008.24, Florida Statutes, and acknowledged in part:

The security of all test materials must be

maintained before, during and after the test

administration...

* * *

I will not disclose any information about the

test items or engage in any acts that would

violate the security of the FCAT and cause

student achievement to be inaccurately

represented or reported.

8. In March 2008, after signing the security agreement,

Respondent administered the FCAT to his sixth-grade mathematics

class.

9. The day after administering the FCAT, Respondent asked

the students in each of his five classes to write down questions

they could remember from the FCAT. The testimony varied as to

whether the requested information was limited to questions they

did not understand, a single question, or simply questions and

answers. However, it is clear that the requested information

stemmed from the FCAT administration the previous day.

Respondent collected the students’ written responses immediately

after, with the intention of reviewing the students’ responses at

a later date. There is no competent, persuasive evidence that

Respondent intended to share the questions with anyone.

10. After collecting the students’ written responses,

Respondent placed them in a folder and then placed the folder in

his personal briefcase to be taken home and locked in his private

safe.

11. Shortly thereafter, the school principal, Mr. Donald

Nelson, received an email from a parent who is also a teacher at

Twin Lakes Elementary School, stating that a security violation

may have occurred with respect to the FCAT.

12. Mr. Nelson immediately called Professional Practices

and questioned the Respondent about the incident. In addition,

he retrieved the folder with the students’ questions from

Respondent.

13. An investigation was conducted by Mr. Leroy Starling,

an investigator for the Duval County School District, Mr. Nelson,

and Mr. John Williams, the Director of Professional Standards for

the school district. Randomly selected students were questioned

individually, and students’ written responses as well as two

letters written by the Respondent to Mr. Nelson were reviewed.

14. As a result of the investigation, on April 4, 2008,

Respondent was issued a letter of reprimand and suspended for ten

days without pay.

15. Respondent continued to teach his sixth-grade

mathematic class during the ten days that he was suspended,

despite the fact that he was not being paid to do so.

16. Ms. Victoria Ash, Bureau Chief for K-12 Assessment for

the Florida Department of Education, testified that the FCAT is

used as part of the accountability system for the state. The

results from the FCAT results are used to determine if schools

have made an adequate yearly progress, to assign school grades

and to measure each student’s level of achievement.

17. Ms. Ash further testified that due to the three-year

process in developing test questions, selected questions are

frequently re-used on the FCAT. As a result, pursuant to the

FCAT security agreement, teachers are warned not to “check

through books and return them to students after they have been

collected or discuss test items or answers with students even

after all test materials have been returned and testing has been

completed because some items may be used on future tests.”

18. There is no evidence presented that student achievement

was inaccurately reported or misrepresented as a result of this

incident. There is also no evidence that any of the questions on

the FCAT were discarded or that any test scores were invalidated

as a result of the incident.

19. Respondent has received consistent excellent teaching

reviews and has never been reprimanded before this incident.

20. There is no evidence that Respondent acted

inappropriately in any manner during the actual administration of

the FCAT.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

22. This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend Respondent’s

teaching certificate for one year, followed by a one-year term of

probation. Petitioner bears the burden of proof to demonstrate

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

23. As stated by the Florida Supreme Court:

Clear and convincing evidence 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 lacking in confusion as to the

facts in issue. The evidence must be of such

a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

24. Subsection 1012.795(1)(j), Florida Statutes, authorizes

the Education Practices Commission to suspend, revoke, or

otherwise penalize a teaching certificate, provided it can be

shown that the holder of the certificate:

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

25. Florida Administrative Code Rule 6B-1.006 states in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

26. The Administrative Complaint alleges that the

Statutes, and Florida Administrative Code Rule 6B-1.006, because

he violated the provisions of Section 1008.24(1), Florida

Statutes, and Florida Administrative Code Rule 6A-10.042(1). The

factual allegations in the Administrative Complaint include the

following:

3. In or around March 2008, the Respondent

administered the Florida Comprehensive

Assessment Test (FCAT) to his class. In

preparation for the test, the Respondent

signed a “FCAT Administration and Security

Agreement,” under which he agreed:

A. To abide by Rule 6A-10.042, F.A.C and

Section 1008.24, F.S.

B. To avoid the following examples of

prohibited activities:

1) Reading the passages, test items, or

performance tasks;

2) Revealing the passages, test items,

or performance tasks;

3) Copying the passages, test items, or

performance tasks;

4) Explaining or reading test items, or

passages for students;

5) Changing or otherwise interfering

with students responses to test items;

6) Causing achievement of schools to be

inaccurately measured or reported;

7) Copying or reading student

responses.

C. Further, the Agreement indicated that

“The security of all test materials must be

maintained before, during, and after the test

administration. Please remember that after

ANY administration, initial or make-up,

materials must be returned immediately to the

school coordinator and placed in a locked

storage...”

D. Under the Agreement, the Respondent

specifically agreed, “I will not disclose any

information about the test items or engage in

any acts that would violate the security of

the FCAT and cause student achievement to be

inaccurately represented or reported.”

4. In or around March 2008, after

administering the FCAT, the Respondent gave

his students an assignment, asking them to

write down questions they could remember from

the FCAT. The Respondent collected the

questions written down by the students. The

Respondent intended to use these questions to

help students prepare for the FCAT the

following year.

27. The Administrative Complaint further alleges that

Respondent violated Section 1008.24(1)(b), Florida Statutes, in

that he "knowingly and willfully violated test security rules

adopted by the State Board of Education"; and "copied,

reproduced or used in any manner inconsistent with the security

rules all or any portion of any secure test booklet." It also

alleges that he violated Rule 6A-10.042(1) in that he "failed to

maintain/administer tests in a manner to preserve test

integrity"; and "revealed, copied, or otherwise reproduced tests

or individual test questions."

28. Subsection 1008.24(1), Florida Statutes, provides in

pertinent part:

(1) 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 or through

the State Board of Education or the

Commissioner of Education to students,

educators, or applicants for certification or

administered by school districts pursuant to

s. 1008.22, or with respect to any such test,

knowingly or willfully to:

* * *

(b) Copy, reproduce, or use in any manner

inconsistent with test security rules all or

any portion of any secure test booklet;

* * *

(f) Fail to follow test administration

directions specified in the test

administration manuals. . . .

29. Florida Administrative Code Rule 6A-10.042(1) provides

in relevant part:

(1) Tests implemented in accordance with the

requirements of Sections 1004.93, 1008.22,

1008.29, 1008.30, 1012.55, and 1012.56,

Florida Statutes, shall be maintained and

administered in a secure manner such that the

integrity of the tests shall be preserved.

* * *

(b) Tests or individual test questions shall

not be revealed, copied or otherwise

reproduced by persons who are involved in the

administration, proctoring or scoring of any

test.

* * *

(f) Persons who are involved in

administering or proctoring the tests or

persons who teach or otherwise prepare

examinees for the tests shall not participate

in, direct, aid, counsel, assist in, or

encourage any activity which could result in

the inaccurate measurement or reporting of

the examinees’ achievement.

30. Disciplinary statutes are penal statutes that must be

strictly construed, with any ambiguity interpreted in favor of

the licensee. Elmariah v. Department of Professional Regulation ,

574 So. 2d 164 (Fla. 1st DCA 1990). "In particular, agencies are

not permitted to extend the requirements of such statutes by

construction. This restriction on agency discretion is necessary

to ensure that those whose conduct is regulated by such statutes

have fair notice of what conduct is proscribed." Beckett v.

Department of Financial Services , 982 So. 2d 94, 100 (Fla. 1st

DCA 2008)(citations omitted).

31. In order for Respondent to be disciplined in this case,

it must be determined whether Respondent's asking the students to

write down FCAT questions after the administration of the test

was complete constitutes a violation of Section 1008.24, as

alleged in the Administrative Complaint. If such a violation is

found, then it must be determined whether this alleged violation

of Section 1008.24 also violates the specific statutory and rule

provisions alleged in the Administrative Complaint that authorize

disciplinary action.

32. At the crux of the first inquiry is the determination

of whether Respondent's conduct constituted copying or

reproducing the test questions from the FCAT. Chapter 1008 does

it is appropriate to resort to the dictionary in order to

interpret these terms in a manner consistent with its plain and

ordinary meaning. Bolanos v. Workforce Alliance , 23 So. 3d 171,

173 (Fla. 1st DCA 2009); Morris v. C.A. Meyer Paving & Constr. ,

516 So. 2d 302, 304 (Fla. 1st DCA 1987).

33. The noun "copy" is defined as "1) an imitation,

transcript, or reproduction of an original work (as a letter, a

painting, a table, or a dress); 2) one of a series of especially

mechanical reproductions of an original impression; also: an

individual example of such a reproduction; 3) archaic : something

to be imitated: MODEL; 4a) matter to be set especially for

printing b: something considered printable or newsworthy. . .

5) DUPLICATE 1a ."

"copy." Merriam-Webster Online Dictionary. 2010. Merriam Webster

Online.

as a verb, copy is defined as 1) to make a copy or duplicate of;

2) to undergo copying." Id.

34. Similarly, the term "reproduce" is a transitive verb

defined as "to produce again: as a) to produce (new individuals

of the same kind) by a sexual or asexual process; b) to cause to

exist again or anew ; c) to imitate

closely d) to

present again; e) to make a representation (as an image or copy)

of; . . . f) to revive mentally: RECALL . . . ." Id.

35. On a technical level, Respondent did not personally

either copy or reproduce anything related to the FCAT. However,

clearly he asked his students to revive mentally or recall, and

therefore reproduce, questions for the FCAT. While their

recollections may not have resulted in a duplicate of the

questions, he used his students as a conduit to obtain the test

material. To that extent, he is guilty of violating the

provisions of Section 1008.24(1)(b), Florida Statutes, and

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

36. The inquiry does not stop there, however. The only

violations for which discipline is authorized are those alleged

in the Administrative Complaint and contained in Section

1012.795, Florida Statutes, and by means of Section

1012.795(1)(j), those violations identified in the Principles of

Professional Conduct for the Education Profession as prescribed

in Florida Administrative Code 6A-1006.

36. The Administrative Complaint alleges that Respondent's

conduct failed to make reasonable effort to protect the student

from conditions harmful to learning and/or to the student's

mental health and/or physical health or safety, in violation of

Rule 6A-1.006(3)(a). There was no evidence that Respondent's

actions violated the provisions of this rule. No threat to any

student's physical or mental health was alleged or proven, and no

conditions harmful to learning were demonstrated. Respondent's

actions, though misguided, were intended to help his students

understand the concepts presented on the test. No tests were

invalidated and there was no evidence that any student suffered

any adverse education consequences as a result of the post-FCAT

assignment. Compare Horne v. Gause , Case No. 04-3635 (DOAH

April 6, 2005), adopted in toto , (EPC Final Order July 8, 2005).

37. Likewise, Petitioner did not establish that Respondent

failed to maintain honesty in all professional dealings.

Therefore, no violation of Rule 6A-1.006(5)(a) has been proven.

38. Even assuming a violation of either rule provision, the

recommended penalty is wholly unwarranted. By all accounts,

Respondent is a fine teacher with no prior disciplinary history.

The local school district suspended him without pay for ten days

and issued a reprimand. Despite not being paid during the

suspension, Respondent continued to teach his class so as not to

disrupt his students' educational progress. His principal,

Donald Nelson, continues to regard him as a fine educator.

39. Under these circumstances, in light of the mitigating

factors enumerated in Florida Administrative Code 6B-11.007(3),

the following mitigating circumstances exist: the offense is an

isolated one; Respondent has not been disciplined previously, and

has taught for over 40 years; no damage occurred as a result of

any violation; and no test results were invalidated or test

questions thrown out. Further, Respondent has been discipline by

the local school district by a 10-day suspension, which the

school district felt to be adequate punishment. Respondent

continued to teach his students while not being paid, evidencing

his dedication to his students. The School Board has indicated a

willingness to continue to employ Respondent, which it would not

be able to do should recommended penalty be imposed.

40. Losing a teacher of Respondent's caliber would serve no

one. In the event that the Commission rejects the undersigned's

Conclusion of Law that no violation of Section 1012.795(1)(j),

Florida Statutes, or Florida Administrative Code Rule 6A-1.006

was proven, a suspension of ten days, considered already served

at the time he served his school district-imposed suspension; two

years' probation; and a requirement that Respondent attend, at

his own expense, any seminars or courses the EPC deems

appropriate is an appropriate penalty in this case. See Winn v.

Parets Case No. 05-3220 (DOAH April 4, 2006), adopted in toto ,

(EPC Final Order February 14, 2007).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

dismissing the Administrative Complaint.

DONE AND ENTERED this 19th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2010.

ENDNOTES

1/ Students who testified at hearing are referred to by their

initials.

2/ At hearing, it was agreed that Petitioner would late-file

certain exhibits because when he originally received copies of the

documents, the names of students had been cut off. Among those

exhibits that were to be late-filed were Petitioner's Exhibit 6

(identified as the FCAT questions written by L.S.), and composite

exhibit 16 (identified in the transcript as the collection of

questions/answers submitted by students). Petitioner promptly

filed the substituted exhibits within the timeframe contemplated

at hearing. However, the exhibits submitted included a Composite

Exhibit 6 and no Exhibit 16.

COPIES FURNISHED:

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Donald E. Pinaud, Jr., Esquire

Kattman & Pinaud, P.A.

4069 Atlantic Boulevard

Jacksonville, Florida 32207

Kathleen M. Richards, Executive Director

Department of Education

Education Practices Commission

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

this recommended order should be filed with the agency that will

issue the final order in this case.