14-002705PL Pam Stewart, As Commissioner Of Education vs. Annette Jones Walker Status: Closed Recommended Order on Friday, February 6, 2015.

Summary: Petitioner did not demonstrate by clear and convincing evidence that Respondent aided students on the FCAT or that she intentionally provided false information on her application for renewal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Petitioner,

vs. Case No . 14 - 2705PL

ANNETTE JONES WALKER,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 1 4 - 15, 2014, Administrative Law Judge Lisa

Shearer Nelson conducted a duly - noticed hearing in this case in

Greensboro, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, F lorida 32435

For Respondent: Peter J. Caldwell, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The first issue to be determined is whether Respondent,

Annette Jones Walker , violated the provisions of section

1012.795(1)(a), (d), (j), or (k), Florida Statutes (2010), and/or

Florida Administrative Code Rule 6A - 10.081(3)(a), and (5)(a),

(g), and (h). If any violations of these provisions are found,

then it must be determined what penalty may be appropriate.

PRELIMINARY STATEMENT

On September 18, 2014, Pam Stewart , as Commissioner of

Education (Petitioner or the Commissioner) , filed an

Administrative Complaint against Respondent, Annette Jones

Walker, asserting that she provide d inappropriate assistance to

students as they took the 2011 Science Florida Comprehensive

Assessment Test (FCAT) by pointing to incorrect answers or

telling students to look again at certain answers, and that she

was removed as a testing administrator fro m future testing

environments. Based upon these allegations, the Administrative

Complaint charged Respondent with violating section

1012.795(1)(d) and (g). On October 3, 2014, through counsel,

Respondent filed an Election of Rights form which disputed th e

allegations in the Administrative Complaint and requested a

hearing pursuant to section 120.57(1), Florida Statutes. The

matter was forwarded to the Division of Administrative Hearings

on June 11, 2014, for the assignment of an administrative law

judge. After input from the parties, a Notice of Hearing was

issued on June 20, 2014, scheduling the case for August 28, 2014,

in Quincy, Florida.

Previously the Commissioner had referred Stewart v. Tunisia

Hairston , DOAH Case No. 14 - 0 987, to the Division for hearing.

The case was assigned to the undersigned, and scheduled for

hearing on July 22, 2014. On June 30, 2014, counsel for both

R espondents filed a Motion to Hold Proceedings in Abey ance or to

Consolidate . The motion noted that the allegations against the

Respondents were identical, involving the same FCAT test

administration, and would involve the testimony of many common

witnesses. Respondents requested that the cases either be heard

together or that the Walker case be abated until a disposition

was entered in the Hairston case. Petitioner objected to the

motion, noting that while the allegations involved the same

factual scenario, the alleged violations occurred in different

classrooms and would involve the testimony of different students

for each case. On July 2, 2014, the Motion to Hold Proceeding in

Abeyance or to Consolidate was denied.

Petitioner filed a Motion for Leave to Amend Administrative

Complaint on July 7, 2014, which was granted by Order dated

July 10, 2014. Respondent moved to stri ke legal conclusions from

the Amended Administrative Complaint with respect to paragraphs

five through ten, arguing that Petitioner impermissibly injected

argument and legal conclusions into the factual allegations of

the complaint. On July 22, 2014, an O rder was issued denying the

motion, stating the paragraphs identified did not appear to be in

violation of Florida Administrative Code Rule 28 - 106.2015.

However, the Order noted that the only provisions upon which any

penalties would be imposed, should th e evidence support the

allegations in the Amended Administrative Complaint, would be

those listed in Counts 1 - 4. If Petitioner was seeking additional

penalties based upon paragraphs 5 - 9 as separate violations,

Petitioner would need to seek to further amen d the complaint.

Petitioner then sought leave to further amend the Amended

Administrative Complaint, both to address the issue discussed in

the July 22 Order, but also to add charges based upon additional

allegations related to Ms. WalkerÓs application for renewal of

her teaching certificate. Respondent did not respond to the

motion, and on August 18, 2014, the motion was granted.

On August 19, 2014, the parties filed a Joint Motion for

Continuance and Joinder. In the motion, the parties indicated

that Respondent Walker needed more time to prepare for the

additional allegations in the Second Amended Administrative

Complaint, and that the parties had concluded that it would be

more efficient to try both cases together. T he parties also

asserted that the cases tried together would take two days to

complete. In both cases, Motions for Change of Venue had been

filed, requesting that the location of the hearing be changed to

West Gadsden High School in Greensboro, Florida. As a result, on

August 25, 2014, t he two cases were consolidated for the purpose

of hearing, and rescheduled for October 14 - 15, 2014, at West

Gadsden High School in Greensboro.

The parties filed Amended Joint Pre - hearing Stipulations in

each case which included stipulated facts for which no evidence

at hearing was required. Those facts, where relevant, have been

incorporated into the findings of fact below. The hearing

commenced as scheduled and was completed on October 15, 2014. 1/

At hearing, Petitioner presented the testimony of Dr. P ink

Hightower, Veronica White, Victoria Ash, Bridget Royster, Anthony

Jackson, S tudents S. B . , T . W ., D . M . , and L.T., 2 / Rosalyn Smith,

Cedric Chandler, and Stephen Pitts. PetitionerÓs Exhibits 1 and

2 were marked for identification but not offered into evid ence.

PetitionerÓs Exhibits 3 - 15 were admitted. Respondent testified

on her own behalf and presented the testimony of Valorie Sanders,

Tamika Battles, Tracey Shelley, s tudents K . M . , A . F . , R . A ., M . C . ,

D . Y . , A . C . , J . J . , A . M . , and E . S . , and Tunisia Hairston .

RespondentsÓ Exhibits 1 - 4 were admitted into evidence.

Many of the people listed on both partiesÓ witness lists

were students, some of whom apparently no longer reside in

Gadsden County. Petitioner Ós counsel filed a return of non -

service with respect to K.B., and learned the morning of the

hearing that K.B. was now in Atlanta. Petitioner requested that

the record remain open for a period of 30 days in order to take

K.B.Ós deposition. The request was granted over objection, with

the provision that Re spondent could also depose identified

students listed in the prehearing stipulation as witnesses for

whom service could not be obtained. Although two students were

initially identified for Respondent, counsel indicated later in

the hearing that it appeare d no attempt at service had been made

for those students, and he could not demonstrate unavailability

for those students. On October 31, 2014, Petitioner filed a

Notice of Taking Deposition with respect to K.B., scheduling the

deposition for November 13, 2014. However, on November 14, 2014,

Petitioner filed a Sworn Motion for Admission of Witness

Statement of Student K.B. in Lieu o f Deposition testimony ,

asserting that K.B.Ós father refused to allow him to be deposed,

and seeking to admit his written stat ement in lieu of his written

testimony. The remedy for the failure to honor a subpoena is to

file a petition in circuit court. § 120. 569(2)(k)2., Fla. Stat.

(2014). Accordingly, the motion was denied by Order dated

November 25, 2014.

The transcript for the hearing was filed with the Division

on December 3, 2014. Corrections to several pages in the

transcript were filed on December 30, 2014. At RespondentÓs

request, the deadline for filing proposed recommended orders was

extended to January 9, 2015. B oth parties timely filed their

Proposed Recommended Orders which have been carefully considered

in the preparation of this Recommended Order. After submission

of the Proposed Recommended Orders, the cases were severed for

preparation of separate recommend ed orders.

FINDING S OF FACT

Based upon the demeanor and credibility of the witnesses and

other evidence presented at hearing, and upon the entire record

of this proceeding, the following facts are found:

1. Respondent holds Florida EducatorÓs Certificate number

948631 , covering the areas of elementary education and English

for speakers of other languages, which is valid through June 30,

2019.

2. At all times pertinent to the allegations in the Second

Amended Administrative Complaint, Respondent was emplo yed as a

teacher at Greensboro Elementary School in the Gadsden County

School District (District).

3. In April of 2011, Respondent was teaching fifth grade.

Her daughter, Tunisia Hairston, taught fifth grade in the

classroom adjacent to hers. Respondent worked as a substitute

teacher for approximately 14 years and as a full time teacher for

10 years. She currently teaches second grade in the same school.

4. The Florida Comprehensive Assessment Test (FCAT) is a

state - wide assessment administered pu rsuan t to section

1008.22(3)(c) , Florida Statutes (2010). For the 2010 - 2011 school

year, the reading component was given to grades three through

ten; math was given to grades three through eight; science was

given to grades five and eight; and writing was give n to grades

four, eight, and ten. At issue in this case is the

administration of the science portion of the FCAT to fifth

graders in Ms. HairstonÓs and Ms. WalkerÓs classrooms at

Greensboro Elementary.

5. Pearson, Inc., was the company with whom the Stat e of

Florida contracted to provide the 2011 FCAT. The evidence

presented indicates that Pearson provided the test booklets to

each county, which then distributed the test booklets to each

school. The schoolÓs test assessment coordinator would then

distri bute the tests to each teacher, matched with a list of the

students each teacher was supposed to test. After the tests were

completed, they were returned by the teacher to the assessment

coordinator, who in turn returned the test booklets to the

district. Pearson picked up each districtÓs test booklets and

transported them to either Austin, Texas , or Cedar Rapids, Iowa ,

for scoring.

6. There is no allegation or evidence presented to indicate

that there was any irregularity with regard to the test booklet s

b e fore they arrived at Greensboro Elementary or after the test

was completed.

7. Test booklets are Ðconsumable,Ñ meaning that there is no

separate answer sheet. Multiple - choice answers are recorded in

the test booklet itself. A subcontractor of Pearso nÓs, Caveon

Data Forensics (Caveon), ran an analysis on the erasure marks on

the answer portion of the test booklets for each grade, in order

to set baseline data for similarities of answers in a particular

test group code or school with respect to erasure s. Generally,

erasure analysis is performed to identify potential anomalies in

the testing and to identify potential questions for review in

terms of question validity. Standing alone, the erasure analysis

provides nothing useful. It must be viewed in c onjunction with

other information.

8. The erasure analysis performed by Caveon identified 21

Florida schools with scores that were above the threshold set for

erasures. Gadsden County had three schools fitting within that

category: Stewart Street Elemen tary School for third - grade

reading, Greensboro Elementary School for fifth - grade science,

and West Gadsden High School for tenth - grade reading retake. The

science classes affected at Greensboro Elementary were those of

Ms. Hairston and Ms. Walker.

9. Th e Superintendent for each district with a high erasure

index, including Superintendent Reginald James of Gadsden County,

was notified by letter dated June 9, 2011, of the testing groups

involved. Th e letter requested the Superintendent to conduct an

inter nal investigation to examine the administration of the

affected tests for any testing irregularities, including testing

conditions and test security protocols at the schools. The

Superintendent was notified that each school would initially

receive an ÐIÑ for its 2010 - 2011 accountability outcomes until

the erasure issue was resolved , or the Commissioner determined

that sufficient data was available to accurately assign the

schools a grade.

10. Deputy Superintendent Rosalyn Smith conducted an

internal inv estigation for Gadsden County, with the assistance of

the DistrictÓs testing coordinator Shaia Beckwith - James.

According to Ms. Smith, the two of them collected documents and

submitted them to the Department of Education, with Ms. Beckwith -

James performin g a lot of ÐlegworkÑ on the investigation. 3/ Both

Ms. Hairston and Ms. Walker were interviewed and the interviews

recorded. Ms. Smith testified that she did not find that either

teacher had violated any testing protocols, but could not explain

the high e rasures. Both Ms. Walker and Ms. Hairston were removed

as administrators from future administrations of the FCAT, a move

that both teachers welcomed. No evidence was presented to

indicate that the District considered, or that either teacher was

notified that, removal as a test administrator was considered

discipline.

11. On June 16, 2011, Superintendent James forwarded to DOE

information collected as part of the DistrictÓs internal

investigation related to those schools with high erasure indexes.

Supe rintendent James asked that the Department exclude the scores

of any students with an erasure index of 1.3 or higher from the

schoolÓs letter grade calculatio n in order to assign the school s

a letter grade as opposed to an ÐIÑ rating.

12. On June 29, 2011 , Deputy Commissioner Chris Ellington

wrote back to Superintendent James regarding the schools in his

district with high erasure indexes. With respect to Greensboro

Elementary, he stated,

While your investigation found no

improprieties for Grade 5 Scienc e at

Greensboro Elementary School, there is

sufficient statistical evidence that student

test results may have been advantaged in

some way. . . . Because this high percentage

of three or more net wrong - to - right erasures

is extremely unusual, the Department Ós

decision is to remove these test results

from the 2010 - 2011 accountability outcomes

for this school. Consequently, the ÐIÑ

designation will be removed and the

accountability outcomes will be calculated

without these student test results.

13. Green sboro Elementary subsequently received an A grade

for the year.

14. On March 6, 2012, then - Commissioner Gerard Robinson

notified Superintendent James that he was requesting the

DepartmentÓs Office of Inspector General to investigate whether

there was any fraud with respect to the administration of the

2011 FCAT. The Inspector GeneralÓs Office then conducted an

administrative investigation of four schools: Chaffee Trail

Elementary; Charter School of Excellence; Greensboro Elementary;

and Jefferson County Elementary.

15. The Inspector GeneralÓs investigation was conducted by

Bridget Royster and Anthony Jackson. They received the results

from the DistrictÓs investigation, and requested testing booklets

from the Division of Accountability and Research Man agement, who

had the studentsÓ test booklets for fifth - grade science shipped

from Texas. Ms. Royster counted the number of erasures on each

test booklet and created answer keys for each student. She also

developed questions to ask each student to determi ne if the

erasures were theirs. She and Mr. Jackson interviewed some, but

not all, of the students from the two c lasses based upon their

availability at the time , and interviewed Principal Stephen

Pitts; Cedric Chandler, the schoolÓs guidance counselor wh o

served as the testing coordinator; and Tamika Battles and Valorie

Sanders, who both served as proctors for the 2011 FCAT. They

attempted to interview Ms. Walker and Ms. Hairston, who both

declined to be interviewed, 4/ preferring instead to seek counsel.

16. Ms. Royster and Mr. Jackson recorded answers from the

students on the questionnaire form they had developed. However,

a review of the handwriting on the forms submitted into evidence

reveals that they were filled out by Ms. Royster and Mr. Jackson,

as opposed to being filled out by the students themselves. The

statements made also refer to the students in the third person,

supporting the belief that these are statements as understood by

the investigators, as opposed to the actual statements of the

s tudents. Based on these interviews, the investigative report

prepared by Ms. Royster and Mr. Jackson states in part:

Ðalthough evidence does not support that fifth - grade teachers,

Annette Walker and Tunisia Hairston, altered student answer

tests, stateme nts taken during the investigation reveal that they

did coach or interfere with their studentsÓ responses during the

administration of the FCAT.Ñ Ms. Royster acknowledged that

erasures can be caused by students going over their answers a

second time; by c heating; by a studentÓs confusion; by a student

changing his or her mind about the answer; and by other

unspecified reasons. She also acknowledged that they did not ask

the students whether they cheated, as that was not the focus of

the investigation.

1 7. Respondent adminis t e red the 2011 Science Comprehensive

Assessment Test (FCAT) for students in her classroom on April 19

and 20, 2011.

18. The science portion of the FCAT was the last portion to

be administered. It consisted of two sessions on success ive

days, with 29 questions on one day and 31 questions on the other.

Both sessions were 55 minutes long. All 60 questions are in the

same booklet. There may be one or two questions per page,

depending on the question, so the test booklet is approximate ly

50 - 60 pages long. There are different forms of the test, but the

core items are the same for each student.

19. Teachers were trained regarding testing protocols and

security measures by Cedric Chandler, Greensboro ElementaryÓs

Guidance Counselor and A ssessment Coordinator. Each teacher

responsible for administering the FCAT was provided with a

testing administration manual, including a copy of Florida

Administrative Code Rule 6A - 10.042, which governs the

administration of the test. There is also a fo rm that is signed

by educators when they attend the training that indicates that

they understand and have read the rules. The FCAT/FCAT 2.

Administration and Security Agreement signed by Respondent states

in pertinent part:

Florida State Board of Educatio n Rule 6A -

10.042, F.A.C., was developed to meet the

requirements of the Test Security Statutes,

s. 1008.24, F.S., and applies to anyone

involved in the administration of a

statewide assessment. The Rule prohibits

activities that may threaten the integrity

of the test. . . . Examples of prohibited

activities are listed below:

Ư Reading 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 test items

Ư Copying or reading student responses

Ư Causing achievement of schools to be

inaccurately measured or reported

* * *

All personnel are prohibited from examining

or copying the test items and /or the

contents of student test books and answer

documents. The security of all test

materials must be maintained before, during,

and after the test administration. Please

remember that after ANY test administration,

initial OR make - up, materials must b e

returned immediately to the school

assessment coordinator and placed in locked

storage. Secure materials should not remain

in classrooms or be taken out of the

building overnight.

The use of untrained test administrators

increases the risk of test inva lidation due

to test irregularities or breaches in test

security.

I, (insert name) , 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 th e 2011 Reading,

Mathematics, and Science Test Administration

Manual. I agree to administer the Florida

Comprehensive Assessment Test (FCAT/FCAT

2.0) according to these procedures.

Further, I will not reveal or disclose any

information about the test item s or engage

in any acts that would violate the security

of the FCAT/FCAT 2.0 and cause student

achievement to be inaccurately represented

or reported.

20. Respondent signed the Security Agreement on April 7,

2011.

21. Teachers are also given a specifi c script to read for

every grade and subject being tested. For the fifth - grade science

test, the script is approximately five pages long. Teachers are

instruct ed that they are to read the script and that their actions

should comport with the directions i n the script.

22. Victoria Ash is the bureau chief for K - 12 assessment at

the Florida Department of Education. Her office is charged with

the development, administration, assessment, scoring, and

reporting of the FCAT. Ms. Ash indicated that there are n o stakes

attached to the science test at the state level. When asked about

protocols to follow in the administration of the FCAT, Ms. Ash

indicated that it is not permissible for teachers to assist

students, as teacher interference would cause results not to be an

accurate measure of the studentsÓ ability. It is not permissible

to walk up to a student, point to a question and answer and tell

the student to take another look at that question. Such behavior

is not permitted either verbally or by some other physical cue.

When a student calls a teacher over during the FCAT to ask a

question, the teacher is to avoid any specific response. However,

it is acceptable, according to Ms. Ash, for a teacher to say

things such as Ðjust keep working hard,Ñ Ðthink abo ut it more, you

will eventually get it,Ñ or Ðdo your best.Ñ To say something like

Ðjust remember the strategies we discussedÑ would be, in Ms. AshÓs

view, Ðgoing right up to the edgeÑ of permissible responses. As

long as the response is not to a specific question, a teacher

would not be violating the protocols to tell students to read over

their answers again, and to make sure the students answered every

question.

23. The Second Amended Administrative Complaint alleges that

Respondent provided inappropri ate assi stance to students in her

fifth - grade class as they took the 2011 Science FCAT by pointing

to incorrect test answers or telling students to look again at

certain answers.

24. Five students from Ms. WalkerÓs class testified at

hearing with respect to the 2011 science FCAT examination. Of

those five, one studentÓs testimony could be construed as

supporting the allegations in the Administrative Complaint.

25. D.M. testified that Ms. Walker just walked around the

classroom. She ÐwasnÓt giving nob ody answers. . . . She just tell

you that maybe you should redo that one.Ñ She testified that

Ms. Walker told her to ÐrelookÑ at a question, but also testified

that she did not think Ms. Walker actually said anything, but

rather pointed to the test bookle t. D.M. admitted that her memory

was not very clear, stating, Ðit was so long ago.Ñ

26. Students S.B., J.J., A.M., and E.S. also testified.

S.B. said she Ðkind ofÑ remembered the test, but that nothing

about the test really stood out. She believed that in response to

a question she had about the test, Ms. Walker may have given a

general answer, such as, check over the page again. She did n ot

remember Ms. Walker giving any hints to the class. S.B.Ós

testimony is vague and general at best, and does not support a

finding of inappropriate assistance.

27. J.J. testified that she was focused on the test, and was

not paying attention to what others were doing. She stated that

Ms. Walker did not go around the room giving hints to students

during the test, an d she did not recall Ms. Walker putting her

finger on anyoneÓs test in a Ðhinting manner.Ñ

28. Similarly, A.M . testified that she did not remember

Ms. Walker going around giving hints about how students should

answer questions. Ms. Walker did not give any hints to A.M. and

A.M. did not hear Ms. Walker give any hints to anyone else. A.M.

stated that it was really quiet in the room, and while it is hard

to remember that far back, if a teacher was giving hints on the

FCAT, she would remember it.

29. E.S. also testified that it was pretty quiet during the

FCAT. She was not paying attention, but did not think that

Ms. Walker went around the room giving hints about answers. She

admitted that she did not remember much about the test, and could

not separate out what happened in the science part of the test as

opposed to the rest of the FCAT, but thinks it would have stood

out if something inappropriate happened. She was focused on the

test but aware of what was going on in the classroom, and

Ms. Walker never pointed to anything on her test booklet, and

thinks she would have heard something if Ms. Walker said anything

inappropriate.

30. Valorie Sanders was the proctor assigned to Ms. WalkerÓs

class. 5/ She does not recall exactly what Ms. Walker said during

t he test, but believed it was for the students to focus. She did

not see Ms. Walker do anything that would violate testing

protocols, for which she had received training; did not recall

Ms. Walker giving hints to any students; did not recall any

instance w here Ms. Walker implied a student should change an

answer from wrong to right; and did not see Ms. Walker point to an

answer on a studentÓs test.

31 . Finally, Ms. Walker denied that she gave any

inappropriate assistance to students during the test. She stated

that she made statements such as Ðpay attention,Ñ Ðfocus,Ñ Ð go

back over your tests if you finish early,Ñ and Ðmake sure you have

an answer for every question,Ñ but did not make any comments about

specific questions on the test. Ms. Walker testifi ed that she

remained seated during most of the testing because it is painful

for her to walk. She did walk around once when she saw

Mr. Chandler in Ms. HairstonÓs class next to hers, and if she saw

students staring off into space she would touch the stude ntÓs desk

to get them back on task, but did not point to specific questions.

Ms. Walker testified that she had been giving tests to students

for 20 years and had never been accused of any impropriety. She,

like her daughter, welcomed the decision not to proctor any more

FCA T test s .

32. After careful review of the evidence presented, it is

found that Ms. Walker did not violate testing protocols by

providing assistance to students during the 2011 science FCAT.

She did not point to specific questions/ans wers or tell a student

(or indicate without talking) that the student should change the

answer to any particular question.

33. The type of coaching alleged in the Second Amended

Administrative Complaint woul d be quite difficult to do, give n the

structure of the test and the testing environment. There is no

answer key to the test, and according to Ms. Ash, there are

different forms of the test. Some pages have one question while

others have two. Students are given a set amount of time to

complete the tes t, but work ed at different speeds. Many finished

early, while some may not have completed it. In order for

Ms. Walker to give the kind of assistance alleged, she would have

to stand by the testing student, read the question on the page,

see the answ er given, recognize it as wrong, and point out the

error to the student. Such a scenario is improbable at best,

given that the testimony is undisputed that Ms. Walker had a

difficult time walking 6/ and only walked around the one time she

saw Mr. Chandler. The explanation that she would point to the

desk in order to gain a childÓs attention and get them to focus is

reasonable.

34. It is not clear from the record at hearing when the

Department of Education began or ended the investigation with

respect to RespondentÓs license. The Administrative Complaint was

signed by the Commissioner on September 18, 2013.

35. Ms. Walker testified that she did not remember receiving

the Administrative Complaint, although she knew that there was an

Administrative Compla int regarding the FCAT. She received a lot

of paperwork during this time period, but did not read it all.

She hired Mr. Caldwell to represent her during the investigative

stage.

36. On October 3, 2013, an Election of Rights form was filed

on Ms. WalkerÓ s behalf requesting time to negotiate a settlement

with the Office of Professional Practices, and if an agreement was

not reached during that time, electing a formal hearing. The

Election of Rights form is signed by counsel, and not by

Ms. Walker.

37. On March 13, 2014, Ms. Walker completed an application

for renewal form for renewal of her educatorÓs certificate. The

form has a variety of questions, all of which Ms. Walker answered

Ðno.Ñ The questions listed included the following:

Have you ever been convicted of a criminal

offense?

Have you ever been found guilty of a criminal

offense?

* * *

Are there currently charges pending against you

for any criminal offense?

Have you ever had a professional license or

certificate sanctioned or disciplined in this

state or any other state?

* * *

Do you have any current disciplinary action

pending in this state or any other state against

a professional license or certificate or against

an application for a professional license or

certificate?

38. Following the questions was a box that stated the

following:

Florida Law requires you to provide a YES or

NO answer to the questions within the Legal

Disclosure section of your application, even

if previously submitted. If you answered

YES to any question in the L egal Disclosure

section on the application form, you must

provide detailed complete information for

each affirmative response within the

corresponding section in this Legal

Disclosure Supplement.

* * *

Having a criminal history or administrative

sanction against a professional license does

not automatically disqualify a person from

receiving a Florida EducatorÓs Certificate,

but such incidents will prompt a review by

the Office of Professional Practices

Services.

39. For the section labeled ÐProfessio nal License or

Certificate Sanction(s), Ñ the form required the applicant to

identify the state, year, and issuing agency, as well as the

license or certificate affected and the ÐSanction and Reason.Ñ

40. Above the sign ature line, the form states: Ð I do hereby

affirm by my signature that all information provided in this

application is true, correct, and complete. Ñ

41. At the time Ms. Walker filled out the application, no

discipline against her certificate had been imposed. There was,

however, a proceed ing in which Petitioner sought to impose

discipline against her certificate. However, at that time, there

would have been no year, sanction, or reason for her to list in

the disclosure supplement.

42 . Applications for renewal are completed at the school

district and forwarded to the Department of Education for

processing. Ms. Walker testified that she went to the district

office at the end of the day and was in a hurry when she filled

out the application. At first she skipped the question about

Ðcurrent disciplinary action pendingÑ because she did not

understand the question. She bubbled it ÐnoÑ because she was in a

hurry.

43. Veronica White of the Department of Education Bureau of

Educator Certification explained the process for renewing

educator c ertificates. She has been employed by the bureau since

1998. Ms. White was asked about the meaning of the term Ðpend ing

disciplinary action Ñ on the application form:

Q. Ms. White, you referred to a question,

referred to the application, the renew

applic ation of Ms. Walker. Let me ask you

about a question on that application. When

the Education Practices Commission, I will

call it EPC. When EPC has ordered

discipline, but it has not yet gone into

effect; is that pending discipline?

A. You are asking me questions that I canÓt

answer. I donÓt work in Professional

Practices Services.

Q. Okay.

A. I can only answer from the certification

side. I am sorry.

Q. Okay. Can I ask you about the meaning

of pending discipline on the application

form; is th at something you feel you have

expertise in, the meaning of pending

discipline?

A. No.

Q. You canÓt? Okay. All right. So you do

not know the meaning of pending discipline

on that application form?

A. No, I really donÓt.

44. At the time Ms. Walk er completed her renewal

application, there was no final order imposing discipline against

her license. There were disciplinary proceedings seeking to

impose discipline that had not yet been resolved. It was not

unreasonable, given the structure of the a pplication, for her to

answer ÐnoÑ to the question as phrased, especially in light of

the information sought in the legal disclosure supplement. She

did not seek to obtain the renewal of her teaching certificate by

fraudulent means.

45 . Some of Ms. Walk erÓs evaluations were admitted into

evidence. A review of RespondentÓs Exhibit 3 reveals that there

are multiple copies of some of the evaluations, and the

evaluation for 2010 - 2011 lacks a signature page. With respect to

those evaluations that are comple te, Ms. Walker was rated

Ðoutstanding Ñ and Ðeffective.Ñ

CONCLUSIONS OF LAW

46 . 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).

47 . This is a proceeding in which Petitioner seeks to

discipline Respondent's educator certification. Because

disciplinary proceedings are considered penal in nature,

Petitioner is re quired to prove the allegations in the Second

Amended Administrative 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).

48 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ b ut 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 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 convict ion,

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 may be met where t he 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).

49 . Section 1012.796 describes the disciplinary process for

educators, and provides in pertinent pa rt:

(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 Department 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

C ommission 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.

50 . The Second Amended Administrative Complaint makes the

following factua l allegations against Respondent:

3. On or about April 19 and 20, 2011, in

Gadsden County, Florida, Respondent provided

inappropriate assistance to fifth grade

students as they took the 2011 Science

Florida Comprehensive Assessment Test (FCAT)

by pointing to incorrect test answers or

telling students to look again at certain

answers.

4. Respondent was removed as a test

administrator from future testing

environments. RespondentÓs studentsÓ FCAT

scores were recommended to be invalidated by

the district.

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

Ed ucation or the Commissioner of Education to

students, educators, or applicants or

certification or administered by school

districts pursuant to s. 1008.22.

6. The Respondent is in violation of Section

1008.24(1)(c), Florida Statutes, in that

Respondent c oached examinees during testing

or altered or interfered with examineesÓ

responses.

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 a ny of

the acts prohibited in this section.

8. The allegations of misconduct set forth

herein are in violation of Rule 6A -

10.042(1)(c), Florida Administrative Code, in

that Respondent assisted examinees in

answering questions.

9. The allegations of misc onduct set forth

herein are in violation of Rule 6A -

10.042(1)(d), Florida Administrative Code, in

that Respondent interfered with examinees

answers while administering test [sic].

10. The allegations of misconduct set forth

herein are in violation of Rul e 6A -

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

that Respondent has participated in,

directed, aided, counsel, assisted in, or

encouraged an activity which could result in

the inaccurate measurement or reporting of

examineesÓ achievement.

11. On or ab out January 19, 2013, Respondent

received a letter by certified mail from the

Office of Professional Practices Services

(PPS) in the Florida Department of Education,

informing Respondent that PPS Ðhas now

concluded its preliminary investigation and

is prep ared to provide [Respondent] an

opportunity to review the materials and

respond to the allegations.Ñ The letter

state d , in part, Ð. . . if founded these

allegations could result in sanctions against

your Florida EducatorÓs Certificate.Ñ On or

about Septe mber 18, 2013, the Commissioner of

Education found Probable Cause to justify

sanctions against RespondentÓs Florida

EducatorÓs Certificate.

12. On or about March 13, 2014, Respondent

submitted an application to renew her Florida

Educator Certificate. Th e application, under

the ÐProfessional License or Certificate

Sanction(s)Ñ section, asked the following

question: ÐDo you have any current

disciplinary action pending in this state or

any other state against a professional

license or certificate or agains t an

application for a professional license or

certificate? Respondent falsely answered

Ðno,Ñ and swore that her application was

Ðtrue, accurate, and complete.Ñ

51 . Based upon these factual allegations, Petitioner charged

Respondent with violating sect ion 1012.795(1)(a), (d) , (j), and

(k), and rule 6A - 10.081(3)(a), (5)(a), (g), and (h). Section

1012.795(1) provides in pertinent part:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) o r (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

t o teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

s tudents for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate , upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(j ) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules.

(k) Has otherwise violated the provisions

of law, the penalty for which is the

revocation of the educator certificate.

52 . Rule 6A - 10.081 was not in effect at the time of the

alleged conduct giving rise to the allegations against

Respondent. Childers v. Dep't of Envtl. Prot. , 696 So. 2d 962,

964 (Fla. 1st DCA 1997)(ÐThe version of a statute in effect at

the time grounds f or disciplinary action arise controls.Ñ).

However, its predecessor, rule 6 B - 1.006, contained the same

provisions with respect to the subsections charged. Pertinent

s ections in subsections (3) and (5) in both rules provide:

(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 studentÓs mental and/

or physical health and/or safety.

* * *

(5) Obligation to the profession of

education require s that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(g) Shall not misrepresent oneÓs own

professional qualifications.

(h) Shall not submit fraudulent

information on any document in connection

with professional activit ies.

53. Petitioner did not prove the allegations against

Respondent by clear and convincing evidence. The burden of proof

in this proceeding is a high burden for Petitioner to meet. After

careful review of the evidence presented, the evidence is

insufficient to demonstrate that Respondent provided inappropriate

assistance to students as alleged in the Second Amended

Administrative Complaint. Further, it appears that RespondentÓs

removal as a test administrator and invalidation of student test

sco res was undertaken, not as an indication that Respondent did

anything wrong, but as a measure to insure that Greensboro

Elementary School received a letter grade for accountability

purposes. The record presented at hearing demonstrated that

Respondent con tinues to be a valued member of the teaching staff

at Greensboro Elementary. Given the failure to prove that

Respondent gave inappropriate assistance to students during the

science FCAT administration, Petitioner has not established that

Respondent violat ed sections 1012.795(1)(d), (j), or (k), or

Florida Administrative Code Rule 6A - 10.081(3)(a) and (5)(a), as

alleged in Counts 2 - 6 of the Second Amended Administrative

Complaint.

54. With respect to allegations that Respondent violated

section 1012.795(1) (a), and rule 6A - 10.081(5)(g) an d (h) (Counts

1, 7, and 8) , the evidence must be examined in light of the

specific language of both the renewal application and the language

of the charged violation s . The question that Petitioner alleges

that Respondent an swered falsely, asks about Ðpending disciplinary

action.Ñ It does not, as the corresponding question regarding

criminal proceedings does, ask whether there are ÐchargesÑ

pending. More telling, the person who has processed these

applications for over fift een years could not explain what was

meant by the question, and the description contained in the form

for supplemental disclosure is open to the interpretation that

only information regarding discipline that has been decided in

some form, but may, for exam ple, be pending issuance of a final

order or pending the results of an appeal , is being sought . Under

these circumstances, it is understandable that Respondent was

confused about the question, and answered it ÐnoÑ because she knew

of no existing disciplin e at that time.

55. Moreover, where a term is not defined in statute or

rule, its common ordinary meaning applies. Donato v. American

Tel. & Tel. Co. , 767 So. 2d 1146 (Fla. 2000); Cole Vision Corp. v.

DepÓt of Bus. & ProfÓl Reg. , 688 So. 2d 404, 410 (Fl a. 1st DCA

1997). The plain and ordinary meaning of a word may be

ascertained by reference to a dictionary. Green v. State , 604 So.

2d 471, 473 (Fla. 1992). BlackÓs Law Dictionary defines the term

ÐfraudÑ by saying:

Fraud consists of some deceitful prac tice or

willful device, resorted to within intent to

deprive another of his right, or in some

manner to do him an injury. As

distinguished from negligence, it is always

positive, intentional.

www.thelawdictionary.org/fraud . Under this definition, the

ev idence does not support a finding that Ms. Walker acted in an

intentional or willful manner with the intent to deceive anyone

with respect to her license , especially where, as here, the

action originated from DOE . Similarly, the term Ðfraud ulent

misrepres entationÑ means an Ðintentional disregard of false or

possibly false information.Ñ

www.thelawdictionary.org/fruadulent - misrepresentation . Given

these definitions, a violation of section 1012.795(1)(a) and rule

10.081(5)(g) and (h) has not been demonstrat ed by clear and

convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order dismissing the Second Amended Administrative

Complaint in its entirety.

DONE AND ENTERED this 6th day of February, 2015 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February , 2015 .

ENDNOTE S

1/ The undersigned notes that Pauline West, the p rincipal of West

Gadsden High School, and her assistant, Ms. Conyers, were more

than accommodating and went out of their way to make sure that

the participants in the hearing had everything they could need.

Without their hospitality, it would have been much more difficult

to obtain the presence of the many students who testified, and

their efforts to provide a hearing space is much appreciated.

2 / All students testifying in this proceeding are identified by

their initials.

3/ Ms. Beckwith - James did not testify.

4/ Both women voiced a concern that Ms. Beckwith - James had been

involved in the di strict investigation. Not only was

Ms. Beckwith - James the District assessment coordinator, but she

was also a distant relative of theirs. According to the

Respondents, there had been a family dispute over the appropriate

disposition of some land , and Ms. Beckwith - JamesÓ allegiance on

the issue was not aligned with theirs. Her involvement gave them

little confidence in the investigative process. As Ms. Beckwith -

James did not testify, no findings are made with respect to her

motivations in this c ase.

5/ P etitioner asserts that Ms. Sanders was not in the room for

both days of science testing, in large part because for one day,

she signed the security log ÐValorie SandersÑ and on the other

day, she signed the log ÐV. Sanders. Ñ Ms. Sanders could n ot

explain the difference. However, on the first log , Ms. Sanders

was not the first person to sign the log . The first person

signing in was Ms. Walker, who had used her first initial and

last name. Ms. Sanders simply followed suit. On the second

page, Ms. SandersÓ was the first signature, and she used both her

first and last name. The difference in form does not support an

inference that Ms. Sanders was not actually present.

6/ Ms. Walker testified that she had trouble with her knees,

making it painf ul for her to walk. Mr. Chandler also testified

that he would go pick up Ms. WalkerÓs test booklets because of

her problems walking.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Su ite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Peter James Caldwell, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

(eServed)

David Holder, Esquire

J. David Holder P.A.

387 Lakeside Dr ive

Defuniak Springs, Florida 32435

(eServed)

Matthew Mears, General Counsel

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Pract ices Services

Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.