14-001364PL Pam Stewart, As Commissioner Of Education vs. Angel Casady Status: Closed Recommended Order on Monday, July 28, 2014.

Summary: Respondent failed to maintain honesty in professional dealings when she encouraged student to violate testing instructions for FCAT. Recommend suspension, followed by probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 14 - 1364PL

ANGEL CASADY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 29 , 2014, a h earing was conducted pursuant to section

120.57(1) , Florida Statutes (2013), by means of video

teleconference with sites in Tallahassee and Panama City ,

Florida, before Administrative Law Judge Lisa Shearer Nelson of

the Division of Administrative Hearings .

APPEARANCES

For Petitioner: David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

For Respondent: Angel Casady, pro se

3401 Country Club Court

Lynn Haven, Florida 32444

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Angel

Casady (Ms. Casady or Respondent) , violated section

1012.795(1)(d) and (j), Florida Statutes (2012), and Florida

Administrative Code Rule 6A - 10.081(5)(a), as alleged in the

Administrative Co mplaint, and if so, what penalty shall be

imposed?

PRELIMINARY STATEMENT

On January 15, 2014, Petitioner Pam Stewart, as Commissioner

of the Department of Education (Petitioner or Commissioner),

filed an Administrative Complaint against Respondent, allegin g

violations of section 1012.795(1)(d) and (j), and rule 6A -

10.081(5)(a). Respondent filed an Election of Rights form on

February 7, 2014, disputing the allegations in the Administrative

Complaint and requesting a hearing pursuant to section 120.57(1),

Fl orida Statutes. On March 24, 2014, the case was referred to

the Division of Administrative Hearings for assignment of an

administrative law judge.

The case was noticed for hearing to commence May 29, 2014,

and proceeded as scheduled. At hearing, Petiti oner presented the

testimony of Douglas Clun a n, N.C., Joy Chonko, Cheryl Denise

Kelley, Janet Bailey, Camilla Hudson, and Sharon Michalik, and

PetitionerÓs Exhibits 1 - 16 were admitted into evidence.

Respondent presented the testimony of Leah Margulies, an d

RespondentÓs Composite Exhibit 1 was admitted into evidence.

The T ranscript of the proceeding was filed with the Division

on June 17, 2014. On June 25, 2014, counsel for Petitioner wrote

to the court reporter asking for corrections to several pages in

the T ranscript. Those corrections were filed with the Division

on July 1, 2014. Both parties timely filed Proposed Recommended

Orders that have been considered in the preparation of this

Recommended Order. All references to Florida Statutes are to the

2 012 codification unless otherwise indicated.

FINDING S OF FACT

1. Respondent is a teacher licensed by the Florida

Department of Education, and has been issued Florida EducatorÓs

Certificate 1204471. The certificate covers the area of

elementary education, and is valid through June 30, 2015.

2. At all times relevant to the allegations in the

Administrative Complaint, Respondent was employed as an associate

teacher at Breakfast Pointe Academy in Panama City, Florida.

Breakfast Pointe is a K - 8 school in the Bay County School

District.

3. Respondent worked in a fourth - grade ÐoverflowÑ classroom

with lead teacher , Joy Chonko. An overflow classroom is a

classroom that has more than 25 students because the actual

number of enrolled students exceeded the projec tion for the grade

level. In that instance, the lead teacher is assigned an

associate teacher to assist h er. Ms. ChonkoÓs classroom had

between 30 and 37 students.

4. Ms. Chonko is in the fourth year of her teach ing career.

She worked for two years in Montana before moving to the Panama

City area and starting at Breakfast Pointe. The events giving

rise to this case occurred during her first year at Breakfast

Pointe. Ms. Chonko is generally regarded as a good teacher.

According to her principal, Denis e Kelley, her students and their

parents love her, and she is always going the Ðextra mileÑ to

help them, both in and out of the classroom. She is very

involved with both students and other teachers on her grade

level, and those teachers wanted her to ret urn so that they could

continue working as a team. When asked if she recommended her

return, Ms. KelleyÓs response was Ðabsolutely.Ñ

5. Ms. Chonko was assigned to an overflow class a few weeks

into the school year , and a n associate teacher was assigned t o

h elp her. H owever, in December 2012, that teacher was let go

because she was not performing the duties assigned to her.

Respondent previously worked at Northside Elementary School and

was let go from that ass ignment , and then pl aced at Breakfast

Pointe in Ms. ChonkoÓs class.

6. Ms. Chonko described the relationship between the two

women as cooperative, like team teachers. 1/ She did not think of

Ms. Casady as a subordinate , although it is clear from

Ms. CasadyÓs job description that she was to work und er the

direction of one or more lead teachers. Further, it is clear

from the assignments in the classroom that Ms. Chonko shouldered

the bulk of the instruction responsibilities. For at least part

of the spring semester, Ms. Chonko taught language arts, social

studies, and science, with Ms. Casady assisting her, while

Ms. Casady taught math with Ms. ChonkoÓs assistance.

7. On March 5, 2013, there was a meeting with Ms. Kelley,

Ms. Chonko, Ms. Casady, and Leah Margulies, a classroom coach, to

address Ms . CasadyÓs role in the classroom. The plan at that

time was for Ms. Chonko to continue teaching the language arts,

social studies, and science classes. Ms. Casady was to observe,

with Ms. Margulies, another fourth - grade teacher at Breakfast

Pointe teachi ng math; another teacher off - campus teaching math;

and Ms. Chonko teaching math. Then Ms. Chonko would teach math

on Mondays, Wednesdays, and Fridays, while Ms. Casady taught math

on Tuesdays and Thursdays. 2 / All of these observations were

planned to hel p Ms. Casady improve her teaching skills.

8. In April 2013 , both Ms. Chonko and Ms. Casady were

involved in the administration of the FCAT. Both teachers

participated in the training for those who administer ed the exam,

and were given a testing administr ation manual. Included in the

manual are the Prohibited Activities Agreement and the Test

Security Agreement, which teachers are to sign and date once

training is completed.

9. The Test Administration and Security Agreement includes

the following text:

Examples of prohibited activities are listed

below:

Ư Reading or reviewing the passages or test

items

Ư Revealing the passages or test items

Ư Copying the passages or test items

Ư Explaining or reading passages or test

items for students

Ư Changing or otherwise interfering with

student responses to tes t items

Ư Copying or reading student responses

Ư Causing achievement of schools to be

inaccurately measured or reported

* * *

The use of untrained test administrators

increases the risk of test invalidation due

to test irregularities or breaches in te st

security. Inappropriate actions by district

or school personnel will result in further

investigation and possible loss of teacher

certification.

I, , have received

adequate training regarding the

administration of the Spring 2013 Florida

Comprehe nsive Assessment Test (FCAT/

FCAT 2.0) and have read the Florida Test

Security Statute and State Board of

Education Rule in Appendix B and the

information and instructions provided in all

applicable sections of the Spring 2013

Reading, Mathematics, and Sci ence Test

Administration Manual. I agree to

administer the FCAT/FCAT 2.0 according to

these procedures.

Further, I will not reveal or disclose any

information about the test items or engage

in any acts that would violate the security

of the FCAT/FCAT 2.0 and cause student

achievement to be inaccurately represented.

10. Respondent signed the Sec urity Agreement on April 9,

2013 .

11. Respondent also signed t he Test Administrator

Prohibited Activities Agreement on April 9, 2013. This document

provided i n pertinent part:

It is important for you, as a test

administrator of a statewide assessment, to

know that the following activities are

prohibited. Engaging in such activities may

result in an investigation , loss of teaching

certification, and/or prosecut ion for

violation of the law. Please read the

following list of prohibited activities and

sign your name on the signature line at the

bottom of this page indicating that you

understand these actions and their

consequences:

* * *

I understand that durin g the test I may not:

* * *

Ư Give students more time than is allotted

for the session (unless the student has an

extended time accommodation)

* * *

Ư Instruct students to test in a session

other than the one designated for that

day/allotted testing time (going on to

Session 2 during Session 1, reviewing work

in Session 1 during Session 2)

Ư Coach students during testing regarding

test - taking strategies

* * *

I understand that after testing I may not:

* * *

Ư Discuss the content of the test wit h

anyone, including students or other school

personnel

12. The FCAT is a very structure d test. Administrators are

given the actual script to use as instructions for the test. The

Script for Administering Grade 4 Reading, Session 2, includes the

follow ing directions to be given orally to students:

¤ You may not change any answers from

Session 1. Remove all materials from

your desk except a No. 2 pencil.

¤ YouÓll have 70 minutes to complete

Session 2 of the Reading test. Open

your test and answer boo k to Session 2

on page 33. The session number is at

the top of each page. You may work

only in Session 2.

¤ Remember the following:

* * *

Ư When you have finished, check

through your answers in this session

only to make sure you have filled in

only o ne bubble for each question.

¤ Try to answer every question. If you

arenÓt sure how to answer a question,

skip it and keep going. After you have

answered all the other questions, go

back and answer any questions you

skipped in this session only.

¤ When y ou come to the STOP sign, you

have finished Session 2. If you

complete Session 2 before time is

called, go back and check your work.

Do not go back and work in Session 1.

¤ Please remember that during this test

session you MUST NOT

Ư work in Session 1

Ư talk to other students or make any

disturbance

Ư look at another studentÓs test and

answer book

Ư allow another student to look at

your test and answer book

Ư ask for help answering any test

questions

Ư give help to anothe r student in

answering test questions

Ư have notes or scratch paper

Ư have any electronic or recording

devices in your possession at any time,

including breaks, even if you do not

use them

Ư fail to follow any other

instructions given

¤ After the tes t you may not discuss the

test items with anyone.

¤ You have 10 minutes to finish Session

2. Remember, do not go back to Session

1.

13. Administration of the FCAT began on Monday, April 15,

2013. Although Ms. Chonko and Ms. Casady would see each other

and talk in the mornings each day before the testing began, they

had separate groups of children for testing, and were not testing

in the same classroom.

14. N.C. was a fourth - grade student in Ms. ChonkoÓs

classroom. Ms. Chonko described him as a very respectful,

polite, hard - working student who presented no discipline

problems. She could not remember specific grades but thought he

was a good student. N.C. described his grades as good, although

when asked for more specifics, he said he got As, Bs, Cs, and

maybe a couple of Ds. 3 / N.C. was in the group of students to whom

Ms. Chonko administered the FCAT.

15. Session 1 of the reading portion of the FCAT was

administered Monday, April 15, 2013. After testing for the day

was over, N.C. told Ms. Chonk o that he did not finish all of the

questions in Session 1, and asked if he would be able to finish

the session . Ms. Chonko told him he would not be able to go back

into Session 1, that Monday was for Session 1, and Tuesday they

would be doing Session 2. Ms. Chonko was not overly concerned

that N.C. did not finish, because she recognized that with a

timed test not all children are going to finish. 4 /

16. Tuesday morning, Ms. Chonko mentioned her conversation

with N.C. to Ms. Casady. Ms. Casady told Ms. Chonko she should

tell N.C. to go back and finish Session 1. Ms. Chonko reminded

Ms. Casady that it was against the rules to do so.

17. Ms. Chonko did not see Ms. Casady speak to N.C. after

their conversation Tuesday morning, and she thought the issue w as

over. However, on Wednesday, April 17, Ms. Casady told her that

she had encouraged N.C. to go back and finish the questions he

did not complete on Monday. The following day, Ms. Casady told

her that N.C. had in fact g one back and finished Session 1.

18. Ms. Chonko believed that there was a violation of the

testing protocol, and she re ported it to her principal,

Ms. Kelley, on Thursday afternoon. According to Ms. Kelley,

Ms. Chonko appeared hesitant, but came to her office on Thursday,

saying, ÐI thi nk I need to tell you something.Ñ Ms. C honko told

Ms. Kelley about N.C. going back into Session 1. Ms. Kelley

asked Ms. Chonko to write a statement regarding the incident,

which she did. She also called Camilla Hudson, the DistrictÓs

assessment coordina tor, and Sharon Michalik, the executive

director for human resources for the District. After direction

from Ms. Hudson, Ms. Kelley a nd the assistant principal,

Ms. Weatherly , interviewed N.C. and asked him to write a

statement as well. A Testing Incident Rep ort was prepared by

Ms. Kelley and Ms. Bailey, the schoolÓs testing coordinator, and

N.C.Ós FCAT reading score was invalidated.

19. N.C. was interviewed by Ms. Kelley and Ms. Weatherly on

Friday, April 19, 2013. N.C. confirmed that he told Ms. Chonko

that he did not finish Session 1 and that she told him he could

not work in Session 1 anymore. He told Ms. Casady on Tuesday

morning that he had not finished the first session, and she told

him, Ðif you are at one minute, you should always mark them B or

C.Ñ She also told him if you have enough time after session 2,

you should go back and mark B or C . N.C. told Ms. Kelley and

Ms. Weatherly that after he finished Session 2, he went back and

marked the unanswered questions in Session 1 with the answer ÐB. Ñ

The testing coordinator confirmed that the last six questions of

Session 1 were marked B.

20. N.C.Ós statement was prepared in Ms. KelleyÓs office.

He identified it at hearing and testified that the contents of

the statement were true. N.C. also test ified that he liked both

Ms. Chonko and Ms. Casady and that Ms. Casady had never written

him up for disciplinary problems. N.C.Ós statement reads as

follows:

I didnÓt finish session 1 reading I had 6

questions left Mrs. Chonko told me to work

in session 2 I told Mrs. Cassady that I

didnÓt finsh she said if IÓm not finshed and

thairs 1 minute left I should mark B or C.

She also said if I had a enough time left

after session 2 I should go back in session

1 and mark the questions that I didnÓt

finish B or C . And I did mark them B. 5 /

21. There was no problem with the group of students for

whom Ms. Casady administered the FCAT.

22. Ms. Michalik came to Br eakfast Pointe on Friday,

April 19, 201 3 . She interviewed Ms. Chonko, and then, with

Ms. Kelley and M s. Weatherly present, interviewed Ms. Casady.

23. The meeting was lengthy. Its purpose was to inform

Ms. Casady of the investigation and give her an opportunity to

present her side of the story. At the beginning of the meeting,

Ms. Casady did not seem all that concerned, but as the meeting

progressed and she realized that others viewed the matter more

seriously and that there could be repercussions for what

happened , she became quite upset. She denied that the incident

occurred and said that Ms. Chonko wa s a Ðnervo us wreckÑ about

students not finishing the test, and that the two of them were

trying to brainstorm ways the boys could finish. According to

Ms. Michalik, Ms. Casady said that she thought it would be f ine

if the boys went back into S ession 1 as long as no one knew.

Ms. Casady also expressed frustration over the incident, stating

that she could not understand why it was Ðsuch a big deal over

two FCAT questions and a fourth grader.Ñ When Ms. Michalik asked

her why she would not have known abou t the prohibition on going

back, since it is in the testing manual, she said that while she

did attend the training, she did not study the manualÓs script

for day two until she read it on the second day of testing.

24. During the meeting, Respondent also claimed that it was

N.C.Ós father who told him to go back into Session 1 on the

second day of testing. While N.C.Ós father told him that if he

was not going to be able to finish a session, to answer B or C

for remaining questions, he never told him to go back and finish

during another session of the test, and never told anyone that he

had given such advice.

2 5 . It was clear after the meeting that Ms. Casady was very

upset with Ms. Chonko, and Ms. Kelley and Ms. Michalik decided it

would not be best for the two women to be in the same room with

the students. 6/ Ms. Michalik elected to transfer Ms. Casady to

another school. There was an unanticipated opening as a media

specialist at another school due to the death of an employee , so

she was transferred t here for the rest of the school year. She

was not recommended for return the following year.

CONCLUSIONS OF LAW

2 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with section s 120.569 and 120.57(1).

2 7 . This is a proceeding in which Petitioner seeks to

revoke Respondent's educator certification. Because disciplinary

proceedings are considered penal in nature, Petitioner is

re quired to prove the allegations in the Administra tive Complaint

by clear and convincing evidence. Dep't of Banking & Fin. v.

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

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

2 8 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance o f the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be cr edible;

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. 2d 797, 800 (Fla. 4th DCA 1983)). ÐAlthough this

standard of proof m ay be met where the evidence is in conflict, it

seems to preclude evidence that is ambiguous.Ñ Westinghouse

Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1991).

2 9 . Section 1012.796 describes the disciplinary process for

educators, and provide s in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint

and prosecute the complaint pursuant to the

provisions of chapter 120. An

administrative law judge shall be assigned

by the Division of Administrative Hearings

of the Dep artment of Management Services to

hear the complaint if there are disputed

issues of material fact. The administrative

law judge shall make recommendations in

accordance with the provisions of subsection

(7) to the appropriate Education Practices

Commissi on panel which shall conduct a

formal review of such recommendations and

other pertinent information and issue a

final order. The commission shall consult

with its legal counsel prior to issuance of

a final order.

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a tea ching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicantÓs

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission m ay specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educat or placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educatorÓs certificate.

2. Have his or her immediate supervisor

sub mit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certifica tion file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal , which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

30 . The Administrative Complaint makes the following

factual allegations a gainst Respondent:

3. On or about April 9, 2013, Respondent

signed a Test Administrator Prohibited

Activities Agreement with respect to

administering the Florida Comprehensive

Assessment Test (FCAT) which stated, in

part: ÐI understand that during testin g I

may not . . . Instruct students to test in a

session other than the one designated for

that day/allotted testing time (going on to

Session 2 during Session 1, reviewing work

in Session 1 during Session 2).

4. On or about April 16, 2013, Respondent

en couraged another teacher to violate FCAT

testing procedures in that Respondent told

the teacher to instruct fourth grade

students N.C. and T.R. to revisit the

previous dayÓs session of the FCAT and fil l

in any unanswered questions . . . . After

instructed to do so by Respondent, and after

completing Session 2, N.C. went back to

Session 1 and filled in unanswered

questions. As a result of the conduct

alleged herein, N.C.Ós FCAT test was

invalidated.

5. The Respondent is in violation of

Section 1008.24(1) , Florida Statutes, in

that Respondent knowingly and willfully

violated 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, ed ucators, or

applicants for certification or administered

by school districts pursuant to s. 1008.22.

6. The Respondent is in violation of

Section 1008.24(1)(f), Florida Statutes, in

that Respondent knowingly and willfully

failed to follow test administra tion

directions specified in the test

administration manuals.

7. The Respondent is in violation of

Section 1008.24(1)(g), Florida Statutes, in

that Respondent participated in, directed,

aided, counseled, assisted in, or encouraged

any of the acts prohibi ted in this section.

8. The allegations of misconduct set forth

herein are in violation of Rule 6A -

10.042(1), Florida Administrative Code, in

that Respondent failed to

maintain/administer tests in a manner to

preserve test integrity.

9. The allegations of misconduct set forth

herein are in violation of Rule 6A -

10.042(1)(f), Florida Administrative Code,

in that Respondent has participated in,

directed, aided, counseled, assisted in, or

encouraged an activity which could result in

the inaccurate measureme nt or reporting of

examineeÓs achievement.

31. Petitioner has proven the allegations contained in

paragraphs three and four, with respect to student N.C., by clear

and convincing evidence. The witnesses who testified had no

motive to cast Respondent in a negative light, and there was no

indication that any of these witnesses disliked her. To the

contrary, both Ms. Chonko and N.C., the witnesses most closely

involved in the incident, professed to liking Ms. Casady.

Indeed, both had something to lose by the reporting of the

incident, as opposed to something to gain. 7/ All the witnesses

who testified were candid, straightforward, and consistent.

However, no significant evidence was presented with respect to

student , T.R.

32. Paragraphs five, six, and seven deal with purported

violations of section 1008.24, Florida Statutes (2012), which

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 and willfully to:

(a) Give examinees access to test questions

prior to testing;

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

inconsistent with test security rules all or

any portion of any secure test booklet;

(c) Coach examinees during testing or alter

or interfere with exami neesÓ responses in

any way;

(d) Make answer keys available to

examinees;

(e) Fail to follow security rules for

distribution and return of secure test as

directed, or fail to account for all secure

test materials before, during, and after

testing;

(f) Fa il to follow test administration

directions specified in the test

administration manuals; or

(g) Participate in, direct, aid, counsel,

assist in, or encourage any of the acts

prohibited in this section.

(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 .

33. While the evidence support s a conclusion that

Respondent violated the provisions cited by enc ouraging N.C. to

go back into Session 1 , section 1008.24 makes a violation a

criminal offense, not a disciplinary offense. Notably, the

Administrative Complaint does not charge Respondent with a

violation of section 1012.795(1)(k)(Ðhas otherwise violated the

provisions of law , the penalty for which is the revocation of the

educatorÓs certificateÑ). Compare Godwin v. DepÓt of ProfÓl

Reg ., 461 So. 2d 226 (Fla. 1st DCA 1984)(contractor violated

section 489.127, containing criminal penalties, and by doing so,

violated section 489.129(1)(j), by fai ling in any material

respect to comply with the provisions of this act). Therefore,

the only utility of these paragraphs would be as they relate to

the charge in Count 1 or Count 3 , discussed below.

34. Paragraphs eight and nine alleged violations of Fl orida

Administrative Code Rule 6A - 10.042(1) and (1)(f), with respect to

test administration. The rule in effect at the time of the

incident provided in pertinent part:

(1) Tests implemented in accordance with

the requirements of Sections 1004.93,

1008.22 , 1008.30, 1012.55, and 1012.56,

F.S., shall be maintained and administered

in a secure manner such that the integrity

of the tests shall be preserved.

* * *

(f) Persons who are involved in

administering or proctoring the tests or

persons who teach or o therwise 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 examineesÓ achievement.

35. Subsection (4) of the rule pro vided that Ðviolations of

test security provisions shall be subject to penalties provided

in statute and State Board Rules.Ñ Once again, nothing in the

rule itself indicates that it is a basis for disciplinary action,

and Petitioner has not specifically p led any statute or rule

provision authorizing discipline for violation of this provision,

such as section 10 1 2.795(1)(k).

36. Because licensing statutes are penal in nature, they are

strictly construed in favor of the licensee. Elmariah v. DepÓt of

Pro f Ól Reg. , 574 So. 2d 164, 165 (Fla. 1 st DCA 1990); Taylor v.

DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784 (Fla. 1 st DCA 1988).

Disciplinary statutes and rules must be construed in terms of

their literal meaning, and words used by the Legislature may not

be e xpanded to broaden their application. Beckett v. DepÓt of

Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1 st DCA 2008); Dyer v.

DepÓt of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1 st DCA 1991).

Therefore, in order for the Commission to discipline a licensee

s uch as Respondent for a violation of section 1008.24 or rule 6A -

10.042, these provisions must be tied to a provision in section

1012.795 authorizing discipline.

37. Count 1 charges Respondent with violating section

1012.795(1)(d), which requires a finding that Respondent has been

guilty of gross immorality or an act involving moral turpitude Ð as

defined by rule of the State Board of Education. Ñ (emphasis

added).

38. The Ethics in Education Act, chapter 2008 - 108, section

32, Laws of Florida, amended sect ion 1012.795(1)(d) to add the

phrase Ðas defined by rule of the State Board of Education,Ñ

creating the statute as it presently appears.

39. Judge F. Scott Boyd analyzed the effect of the 2008

legislative amendment in Arroyo v. Smith , Case No. 11 - 2799, ¶ 109

(Fla. DOAH May 31, 2012; Fla. EPC Nov. 13, 2012), as follows:

The Ethics in Education Act, Chapter 2008 -

108, Laws of Florida, added the phrase Ðas

defined by rule of the State Board of

EducationÑ to what now appears as section

1012.795(1)(d). It is u nclear whether this

new language modifies only Ðan act involving

moral turpitudeÑ or if it instead modifies

the entire phrase Ðgross immorality or an

act involving moral turpitude.Ñ The absence

of a comma after the word ÐimmoralityÑ

suggests that it modif ies the entire phrase.

In any event, when construing penal

statutes, any statutory ambiguity should be

resolved in favor of [the Respondent]

. . . . This portion of the statute is

thus only violated if an educator is guilty

of gross immorality as define d by rule of

the State Board of Education.

40. The Final Order in Arroyo v. Smith considered the

Recommended Order and it was Ðadopted in full and becomes the

Final Order of the Education Practices Commission.Ñ The Final

Order in Arroyo and the concl usions of Judge Boyd adopted in that

Final Order must be applied here as well. Gessler v. DepÓt of

ProfÓl Reg. , 627 So. 2d 501 (Fla. 4th DCA 1993).

41. As noted by Judge Boyd, Ð[t]he State Board of Education

has not defined the term Ògross immoralityÓ b y rule.Ñ Arroyo v.

Smith , at ¶ 110.

42. Petitioner does not address the failure to define gross

immorality by rule, instead relying on cases construing the term

that were decided prior to the 2008 legislative amendment to

section 1012.795(1)(d). Given the amendment, those cases are

inapplicable to the current standard established by the

Legislature.

43. Rule 6A - 5.056 defines the terms ÐimmoralityÑ (not gross

immorality) and Ðmoral turpitude.Ñ ÐImmoralityÑ is defined as

Ðconduct that is inconsistent w ith the standards of public

conscience and good morals. It is conduct that brings the

individual concerned for the education profession into public

disgrace or disrespect and impairs the individualÓs service in the

community.Ñ However, rule 6A - 5.056 impl ements sections 1012.33

and 1012.335. Section 1012.33(1) defines just cause for

termination of a contract by a district school system as including

Ðbut not limited to, the following instances, as defined by rule

of the State Board of Education: immorality , misconduct in office

. . . .Ñ Section 1012.335 also directs the State Board of

Education to adopt rules defining Ðjust cause,Ñ including, but not

limited to immorality, misconduct in office, incompetency, gross

insubordination, willfull neglect of duty, and being found guilty

of, entering a plea to, regardless of adjudication, any crime of

moral turpitude. Neither of these provisions require a definition

of gross immorality, while section 1012.795(1)(d) clearly does so .

As the State Board of Education has not defined the term as

required by s ection 1012.795(1)(d), it cannot serve as a basis for

discipline in this case. Arias v. DepÓt of Bus. & ProfÓl Reg. ,

710 So. 2d 655 (Fla. 3d DCA 1998).

44 . Section 1012.795(1)(d) also authorizes discipline for

cr imes of moral turpitude, as defined by the State Board of

Education. Rule 6A - 5.056 does define crimes of moral turpitude

as follows:

(8) ÐCrimes involving moral turpitudeÑ

means offenses listed in Section 1012.315,

F.S., and the following crimes:

(a) Se ction 775.085, F.S., relating to

evidencing prejudice while committing

offense, if reclassified as a felony.

(b) Section 782.051, F.S., relating to

attempted felony murder.

(c) Section 782.09(1), F.S., relating to

killing of unborn quick child by injury to

mother.

(d) Section 787.06, F.S., relating to human

trafficking.

(e) Section 790.166, F.S., relating to

weapons of mass destruction.

(f) Section 838.015, F.S., relating to

bribery.

(g) Section 847.0135, F.S., relating to

computer pornography and/or traveling to

meet a minor.

(h) Section 859.01, F.S., relating to

poisoning of food or water.

(i) Section 876.32, F.S., relating to

treason.

(j) An out - of - state offense, federal

offense or an offense in another nation,

which, if committed in this state,

constitutes an offense prohibited under

Section 1012.315(6), F.S.

45 . Section 1012.315 provides an extensive list of criminal

penalties that disqualify an applicant from certification as an

educator. Neither the offenses listed in section 1012.315 nor

t he offenses listed in rule 6A - 5.056 include a violation of

section 1008.24 as a crime of moral turpitude. Count 1 has not

been proven by clear and convincing evidence.

46 . Count 2 is not truly a separate disciplinary violation,

but rather section 1012.79 5(1)(j) provides the necessary

statutory authority for violations of the Principles of

Professional Con duct for the Education Profession, a violation

which is charged in Count 3.

47 . Count 3 alleges that Respondent violated rule 6A -

10.081(5)(a), which pro vides that Ðobligation to the profession

of education requires that the individual shall maintain honesty

in all professional dealings.Ñ The term ÐhonestyÑ is not defined

in the rule.

48 . Where a term is not defined in statute or rule, its

common ordinar y meaning applies. Donato v. American Tel. & Tel.

Co. , 767 So. 2d 1146 (Fla. 20 0 0); Cole V ision Corp. v. DepÓt of

Bus. & ProfÓl Reg. , 688 So. 2d 404, 410 (Fla. 1st DCA 1997). The

plain and ordinary meaning of a word may be ascertained by

reference to a d ictionary. Green v. State , 604 So. 2d 471, 473

(Fla. 1992). The term ÐhonestyÑ is defined as Ð fairness and

straightforwardness of conduct; adherence to the facts.Ñ

www.merriam - webster.com/dictonary/honesty . The term ÐhonestÑ is

similarly defined as Ðfre e from fraud or deception; genuine,

real; reputable, respectable; creditable, praiseworthy; marked by

integrity.Ñ www.merriam - webster.com/dictionary/honest .

49 . In this case, the conduct at issue is essentially

encouraging a child to do something that both the teacher and the

child knew was against the rules for testing: in other words, to

cheat. This behavior, by common ordinary standards, is the

antithesis of maintaining honesty. A violation of testing

standards also violates this provision. By vi rtue of a teacherÓs

special role in mentoring and instructing students, teachers are

held to a high moral standard. Adams v. ProfÓl Practices

Council , 406 So. 2d 1170 (Fla. 1st DCA 1981). Encouraging

children to violate the testing protocols sends the op posite

message from that which a teacher is expected to convey.

Petitioner has proven Count 3 by clear and convincing evidence.

50 . The Education Practices Commission has adopted

disciplinary guidelines for the imposition of penalties

authorized by secti on 1012.795. Fla. Admin. Code R. 6B - 11.007.

For improperly assisting a student with testing in violation of

rule 6B - 1.006(3)(a), or (5)(a), 8/ the penalty range is probation

to revocation.

51 . Rule 6B - 11.007(3) also identifies aggravating and

mitigating factors for consideration in reducing or increasing the

penalty from the ranges identified in the rule. No evidence in

mitigation was presented. Moreover, the theme presented in this

case wa s one of a person who was willing to blame anyone else who

might be part of the process rather than any effort to take

responsibility for her own conduct. Respondent reacted by casting

blame on N.C.Ós father; excoriating the character of her lead

teacher; and accusing Ms. Michalik of lies and unprofessional

behavior. These actions do not model the professionalism expected

of educators placed in a position of leadership with our children.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of

Law, it is RECOMMENDED that that the Education Practices

Commission enter a Final Order finding Respondent guilty of

Counts two and three of the Administrative Complaint. It is

further recommended that the Commission suspend RespondentÓs

educatorÓ s certificate for one year; impose an administrative

fine of $500; and that upon reinstatement , Respondent serve three

years of probation, subject to terms and conditions determined by

the Commission.

DONE AND ENTERED this 28th day of July , 2014 , in

Tallah assee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of July , 2014 .

ENDNOTE S

1/ Ms. ChonkoÓs description of her relationship with Ms. Casady

appears to be viewed through rose - colored glasses. She reported

no real problems or concerns with Ms. Casady, and could not think

of any concerns she reported to Ms. Kelley. Ms. Kelley said that

they appeared to work well together and there was no reason to

think they disliked one another. She believed that there were a

few times where Ms. Chonko mentioned concerns to her, and several

times where Ms. Casady did so.

On the other hand, Ms. Casady complained several times to her

teaching coach, Leah Margulies, that Ms. Chonko wanted to play a

larger role in the teaching in the classroom, and that she found

Ms. Chonko difficult to work with. As the investigation

unfolded, her comments about Ms. Chonko were less and less

flattering. During rebuttal, Petitioner called Ms. Chonko back

to the stand to give her t he o pportunity to rebut some of

Ms. CasadyÓs statements. She seemed truly taken aback by the

things Ms. Casady said about her, and said she did not know why

she would do so. She said, ÐI am required to report what was

reported to me, and thatÓs what I di d. ItÓs nothing personal . I

just had to.Ñ

2 / It is unclear whether these assignment changes, which were

designed to help Ms. Casady improve her skills, ever took place.

Breakfast Pointe was not a school assigned to Ms. Margulies, but

she had been wo rking with teachers there because the assigned

coach had other temporary duties monopolizing her time. The day

after the referenced meeting, Ms. Margulies was notified that she

no longer needed to work at Breakfast Pointe, and the record does

not indicate whether the plans were carried out with another

teaching coach.

3 / To be fair, the question posed did not specify whether the

query meant to elicit grades throughout the year on individual

assignments, or grades on his report card. One can be a very

go od student and still have a hiccup now and then.

4 / Ms. Casady attempted to portray Ms. Chonko as extremely

nervous about the FCAT and worried about how the studentsÓ scores

would affect her evaluations. Ms. Chonko, however, testified

credibly that whil e it is important to any teacher that the

students do as well as they can, the FCAT is simply part of the

job.

5 / The text is produced exactly as N.C. wrote it.

6/ In a follow - up call to Ms. Casady, she continued to make

disparaging comments about Ms. Chonko, calling her Ða real piece

of workÑ and Ða snake in the grass.Ñ

7/ Moreover , Ms. Chonko was required to report the testing

violation under rule 6A - 10.081(5)(m), or be subject to discipline

for failing to do so.

8/ This rule has been transfer red to rule 6A - 10.081. The

relevant text is the same.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Angel Casad y

3401 Country Club Court

Lynn Haven, Florida 32444

David Holder, Esquire

J. David Holder P . A .

387 Lakeside Drive

Defuniak Springs, Florida 32435

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines S treet

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 SUB MIT 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.