14-000987PL Pam Stewart, As Commissioner Of Education vs. Tunisia Hairston Status: Closed Recommended Order on Friday, February 6, 2015.

Summary: Petitioner did not prove that Respondent provided inappropriate assistance to students during the FCAT. Recommend dismissal of complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER

OF EDUCATION,

Petitioner,

vs. Case No . 14 - 0987PL

TUNISIA HAIRSTON,

Respondent.

_______________________________/

RECOMMENDED ORDER

On O ctober 14 - 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 Sp rings, Florida 32435

For Respondent: Peter J. Caldwell, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

ST ATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Tunisia

Hairston, v iolated the provisions of section 1012.795(1)(d), (j),

or (k), Florida Statutes (2010), and/or Florida Administrative

Code Rule 6A - 10.081(3)(a) and (5)(a). If any violations of th ese

provisions are found, then it must be determined what penalty may

be app ropriate.

PRELIMINARY STATEMENT

On September 18, 2013, Pam Stewart, as Commissioner of

Education of the State of Florida (Petitioner or the

Commissioner), filed an Administrative Complaint against

Respondent Tunisia Hairston , asserting that she provided

in appropriate 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 from

fu ture testing environments. Based upon these allegations, the

Administrative Complaint charged Respondent with violating

section 1012.795(1)(d) and (g). On September 30, 2013, through

counsel, Respondent filed an Election of Rights form which

disputed the allegations in the Administrative Complaint and

requested a hearing pursuant to section 120.57(1), Florida

Statutes. T he matter was forwarded to the Division of

Administrative Hearings on March 3, 2014, for the assignment of

an administrative law judge.

A Notice of Hearing was issued on March 7, 2014, scheduling

the case to be heard on May 14, 2014, in Tallahassee, Florida.

At RespondentÓs request, the case was continued and rescheduled

for July 22, 2014.

On June 11, 2014, an Administrative Complaint a gainst

Annette Jones Walker , who is Respondent HairstonÓs mother and

teaches at the same school, was referred to DOAH for the

assignment of an administrative law judge and docketed as DOAH

Case No. 14 - 2705 . The case was assigned to the same

administrative law judge , who scheduled the hearing in the Walker

case for August 28, 2014. On J une 30, 2014, counsel for both

R espondents filed a Motion to Hold Proceedings in Abeyance or to

Consolidate. The motion noted that the allegations against the

Respondents w ere 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 this c ase against Respondent Hairston . 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 eac h case. On July 2, 2014, the Motion

to Hold Proceeding in Abeyance or to Consolidate was denied.

On July 7 , 2014, Petitioner filed a Motion for Leave to

Amend Administrative Complaint, which was opposed by Respondent.

Petitioner indicated in its motion t hat if Respondent required

a continuance in order to prepare for any amendments in the

Administrative Complaint, Petitioner was not opposed.

On July 10, 2014, an Order Granting Leave to Amend

Administrative Complaint, Canceling Hearing, and Requiring Ne w

Dates for Hearing was issued. The Order changed the venue of the

hearing to Quincy, Florida, in order to reduce the inconvenience

for the witnesses, particularly the students. After input from

the parties, the case was rescheduled for September 26, 201 4, in

Quincy, Florida.

On July 16, 2014, Respondent moved to strike legal

conclusions from the Amended Administrative Complaint, which

Pet itioner opposed. On July 22, 2 0 1 4, an Order was entered

denying RespondentÓs motion. The Order noted , however, tha t only

statutory and rule provisions listed under the enumerated counts

in the Amended Administrative Complaint would be the basis for

any penalties against Respondent, and that if Petitioner wished

to charge any additional violations, she would need to fu rther

amend the complaint. Petitioner did so and on August 5, 2014,

PetitionerÓs Second Motion to Amend Administrative Complaint was

granted.

On August 19, 2014, the parties in Case No. 14 - 2705 (Stewart

v. Walker) filed a Joint Motion for Continuance and Joinder. In

the motion, the parties indicated that Respondent Walker needed

m o re time to prepare for additional allegations in the Second

Amended Administrative Complaint filed in that case, and that the

parties had concluded that it would be more efficie nt to try both

cases together. The 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, the 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. Pink

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

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

Cedric Chandler, and Stephen Pitts. PetitionerÓs Exhibi ts 1 and

2 were marked for identification but not offered into evidence.

PetitionerÓs Exhibits 3 - 15 were admitted. Respondent testified

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

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

D . Y . , A . C . , J . J . , A . M . , and E . S . , and Annette Jones Walker.

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 C ounty. 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 depositi on. The request was granted over objection, with

the provision that Respondent 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 appeared no attempt at service had been made

for those students, and he could not dem onstrate unavailability

for them . 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 of Deposition testimony, asserting that

K.B.Ós father refused to a llow him to be deposed, and seeking to

admit his written statement 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 pr oposed recommended orders was

extended to January 9, 2015. Both 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 recommended 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 a re found:

1. Respondent, Tunisia Hairston, holds Florida EducatorÓs

Certificate 886347 , covering the areas of elementary education

and English for speakers of other languages, which is valid

through June 30, 2017.

2. At all times relevant to the allegati ons in the Second

Amended Administrative Complaint, Res pondent was employed as a

fifth - grade teacher at Greensboro Elementary School in the

Gadsden County School District (District) .

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

Her mother, A nnette Jones Walker, taught fifth grade in the

classroom adjacent to hers. Respondent is in her thirteenth year

of teaching and currently teaches first grade at the same school.

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

state - wide assessm ent administered pursuant 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 eig ht; and writing was given 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 co mpany with whom the State 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 coord inator would then

distribute 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 b ooklets 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 re gard to the test booklets

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 PearsonÓs, 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 erasures . 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 conjunction 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 Elementary 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. Hairst on and Ms. Walker.

9. The Superintendent for each d istrict 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 Superinte ndent to conduct an

internal 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 investigation for Gadsden County, with the assistance of

the DistrictÓs testing coordinator , Shaia Beckwith - J ames .

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

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

James performing 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 co uld not explain

the high erasures. 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 ei ther 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 hig h erasure indexes.

Superintendent 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 ratin g.

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

wrote back to Superintendent James regarding the schools in

Gadsden County with high erasure indexes. With respect to

Greensboro Elementary, he stated,

While your investigation found no

improp rieties for Grade 5 Science 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 extreme ly unusual, the DepartmentÓs

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 te st results.

13. Greensboro 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 investig ate 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 state - wide : Chaffee

Trail Elementary; Charter School of Excellence; Greensb oro

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 Divisi on of Accountability and Research Management , 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 que stions to ask each student to determine if the

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

not all, of the students from the two classes based upon their

availability at the time , and interviewed Principal Stephen

Pitts; Cedric Chandle r, the schoolÓs guidance counselor who

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 oppo sed to the actual statements of the

students. 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, statements 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 o ver their answers a

second time; by cheating; 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 no t the focus of

the investigation.

17 . Respondent administered 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 successive

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 questio n, so the test booklet is approximately

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 Assessment 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

administra tion of the test. There is also a form 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 Education 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

activ ities 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

docum ents. 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 be

returned immediately to the school

assessment coordin ator 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 invalidation 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 the 2011 Reading,

Mathematics, and Science Test Administr ation

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 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

or reported.

20. Respondent signed the Security Agreement on April 7,

2011.

21. Teachers are also given a specific script to read for

every grade and subject being test ed. 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 in 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 no 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 duri ng 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 about it more, you

w ill eventually get it,Ñ or Ðdo your bes t.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 protocol s 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 inappropriate assistance to students in her

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

to incorrect test answers or telling students to look again at

certain answers.

24. Eight students from Ms. HairstonÓs 2011 fifth - grade

class testified at hearing. Of those 8 students, two testified

that they ha d received assistance from Ms. Hairston during the

test.

25. T.W. was a male student in Ms. HairstonÓs class. He

testified that Ðin a certain period of time, she would point out

answers for me.Ñ He testified that she did not say anything to

him, but Ð I just got the meaning that she was telling me to check

it over again.Ñ He also stated that she told the whole class to

go over their tests again at the end of the test.

26. L.T. was a female student in Ms. HairstonÓs class. She

referred to Mr. Pitts or Ms. Dixon being in the room . She

testified that after Ms. Dixon or Mr. Pitts left the room,

Ms. Hairston would walk around and Ðpoint out questions that maybe

we would get wrong.Ñ She testified that Mr. Pitts or Ms. Dixon

came in 3 - 4 times. L.T. a lso stated that while Ms. Hairston told

the class at the beginning of the test they could go back and

recheck their answers when they were finished, she did not make a

similar statement at the end of the test.

27. On the other hand, students K.M., A.F., R .A., M.C.,

D.Y., and A.C. all testified that they did not remember Ms.

Hairston giving any type of hints during the science FCAT, and

that she did not point to answers on the tests. None of the

students , including T.W. and L.T., had incredibly clear memor ies

of the test , which is understandable given that they took the test

over three years prior to the hearing. To the extent that these

six students remembered Ms. Hairston saying anything, they

remember her telling them to go back and read the questions o ver,

in terms of the whole test.

28. Tamika Battles was the proctor assigned to

Ms. HairstonÓs room. Although there was some dispute about how

many days she was present during the science part of the FCAT, it

is found that she was present for one of the two testing

sessions. 5/ Ms. Battles does not recall Ms. Hairston saying

anything out of the ordinary, but rather simply walked around

telling students to stay on task, and making general statements

about test taking . She did not ever see her point to a p articular

studentÓs test. Ms. Battles had been trained in testing

protocols, and believed that they were followed.

29. Ms. Hairston also denied coaching any of the students or

pointing out incorrect answers. She acknowledged pointing toward

test booklet s on occasion, not to point to a specific answer but

to remind a student to focus or stay on task. Her testimony was

credible.

30. After careful review of the evidence, it is found that

Ms. Hairston did not violate testing protocols by providing

assistan ce to students during the 2011 science FCAT . She did not

point to specific questions/answers or tell a student (or indicate

without talking) that the student should change the answer to any

particular question.

31. T.W. was in Ms. HairstonÓs class for th e second time,

having failed fifth grade the year before. He testified that

Ms. Hairston did not say anything to him, but rather that he

understood her to mean something that she never verbalized. While

L.T. testified that Ms. Hairston would point to a q uestion and

say, Ðcheck your answers again,Ñ she tied these actions to times

when Ms. Dixon or Mr. Pitts came in the room. Neither Mr. Pitts

nor Ms. Dixon signed the security log for Ms. HairstonÓs class for

either day of the science examination. Ms. Dix on signed in for

one testing session on April 13, but not for either day of science

testing, and Mr. Pitts is not signed in for any session at all.

Credible testimony was also presented to indicate that while

perhaps Ms. Dixon was present at some time dur ing testing (and not

necessarily science), Mr. Pitts was not. In addition, L.T.Ós

written statement focuses more on math questions than science

questions. It is entirely possible, given the vague nature of her

answers, that she was confusing the science FCAT with some other

testing experience. In any event, T.W. and L.T.Ós testimony,

taken together or apart, does not rise to the level of credible,

clear and convincing evidence of providing inappropriate

assistance to students during the FCAT.

32. Furthe r, the type of coaching alleged in the Second

Amended Administrative Complaint woul d be quite difficult to do,

given 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 f orms of the test. Some pages have one

question while others have two. Students are given a set amount

of time to complete the test, but work ed at different speeds.

Many finished early, while some may not have complete d it. In

order for Ms. Hairston to give the kind of assistance alleged, she

would have to stand by the testing student, read the question on

the page, see the answer given, recognize it as wrong, and point

out the error to the student. Such a scenario is improbable at

best , given that test imony is uniform that she walked around the

room, not that she stopped for significant periods at any

studentÓs desk . Ms. HairstonÓs explanation that she commonly

points in order to gain a childÓs attention and get them to focus

is reasonable.

33. Seve ral years of RespondentÓs performance evaluations

were submitted. Only those that were complete were considered.

Those evaluations indicate that Ms. Hairston consistently has

achieved effective, highly effective, or outstanding evaluations

during her ten ure at Greensboro Elementary School.

CONCLUSIONS OF LAW

34 . 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).

35 . 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 convinci ng

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).

36 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òb eyond 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 wi tnesses 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 he sitancy, 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 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).

37 . Section 1012.796 describes the disciplinary process for

educators, and provides in pertinent part:

(6) Upon t he 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

Commission 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

fina l 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 teaching

certificate. The denial may provide tha t

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 administrat ive 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 may 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 educator placed on

probation. An educator who has b een 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.

38 . 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

Edu cation 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 co ached 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 an y 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 misco nduct 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 Rule 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.

39 . Based upo n these assertions, Petitioner alleges that

Respondent violated section 1012.795(1)(d), (j) , and (k); and

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

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) or (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 c ontact with students for that period

of time, after which the holder may return

to 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

distr ict school board or public school in

any capacity requiring direct contact with

students 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 r elating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(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.

40 . 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 for disciplinary action arise controls.Ñ).

H owever, its predecessor, rule 6B - 1.006, contained the same

provisions with respect to the subsections charged. Sections

(3)(a) and (5)(a) in both rules provide:

(3) Obligation to the student requires that

the ind ividual:

(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 requires that the individual:

( a) Shall maintain honesty in all

professional dealings.

4 1 . 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

scores 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 pr esented at hearing demonstrated that

Respondent continues 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, Pe titioner has not established that

Respondent violated the provisions alleged in the Administrative

Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Education Practices

Commission e nter a Final Order dismissing the Second Amended

Administrative Complaint.

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 Parkway

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 principal 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 th is 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 D istrict investigation. Not only was Ms.

Beckwith - James the District assessment c oordinator, 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 invol vement 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 case.

5/ The dispute involved the fact that Ms. Battles did not sign

the security log for either testing day. People coming in and

out of the room during the FCAT are supposed to sign and record

the time they enter and exit the room. Ms. Battles signed in and

out for other test sessions, but not for the days the science

test was administered , although testimony is consistent that she

was present for one of the two days. After considering the

evidence as a whole, it is found that she was present for one of

the days, but not both, and simply neglected to sign the security

log.

COPIES FURNIS HED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Peter James Caldwell, Esquire

Florida Education Association

213 South Ada ms Street

Tallahassee, Florida 32301

(eServed)

David Holder, Esquire

J. David Holder P.A.

387 Lakeside Drive

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 Practices 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 submi t 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.