18-005534PL Pam Stewart, As Commissioner Of Education vs. Colleen Quinn Status: Closed Recommended Order on Tuesday, May 28, 2019.

Summary: Pet. failed to prove Resp. was dishonest or failed to protect students from harmful learning conditions when she distributed a "graphic organizer" she believed to be an acceptable accommodation to ESE students during the FSAT.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD CORCORAN , AS

COMMISSIONER OF EDUCATION,

Petitioner,

vs. Case No. 18 - 5534PL

COLLEEN QUINN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge Hetal Desai with the Division of

Administrative Hearings (DOAH) held the final hearing in this

case o n January 29 and March 8, 2019, in St. Petersburg,

Florida .

APPEARANCES

For Petitioner: R on Weaver, Esquire

Post Office Box 770 088

Ocala, Florida 34477 - 0088

For Respondent: Carol Buxton, Esquire

Florida Education Association

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803

STATEMENT OF THE ISSUE S

Whether Respondent violated (1) section 1012.795(1)(g) ,

Florida Statutes (2017) , 1/ (committing conduct seriously reducing

her effectiveness as an employee of the district school board );

(2) Florida Administrative Code Rule 6A - 10.081(2)(a)1. (failure

to mak e reasonable effort to protect students from conditions

harmful to learning and/or to students Ó mental and/or ph ysical

health and/or safety); or (3) Rule 6A - 10.081 (2)(c)1 . (failure

to maintain honesty in all professional dealings ) , when she

provided a Ð Gr aphic Organizer Ñ to certain Exceptional Student

Education (ESE) students during the 2017 Florida Standards

Assessment test (FSAT); and if so, what is the appropriate

disciplinary action.

PRELIMINARY STATEMENT

In March 201 8, Petitioner , Pam Stewart, as Comm issioner of

Education 2 / (Department) filed an Administrative Complaint

charging Respondent with violations aris ing from conduct by

Respondent, Colleen Quinn, during the 2017 FSAT. Ms. Quinn

disputed the charges in a timely filed election of rights form,

a nd asked for a hearing.

The matter was transferred to DOAH on October 19, 2018,

assigned to the undersigned, and set for hearing.

The parties filed a Joint Pre - hearing Stipulation on

October 8, 2019, containing stipulated facts which are

incorporated b elow where appropriate. 3/ Citations to these

stipulated facts are indicated as Ð Jt. Stip. Fact, ¶. Ñ

The final hearing was not completed on the original date

noticed, January 29, 2019, and was continued for a second day of

hearing held March 8, 2019.

At th e beginning of the final hearing, the Department made

an ore tenus motion to amend the Administrative Complaint, and

Respondent had no object ion . The motion to amend was granted,

the original Administrative Complaint was amended , a nd the

Amended Administr ative Complaint (Complaint) was filed on

February 1, 2019. 4/

The Complaint alleges four counts: (1) violation of

section 1012.795(1 )(g), alleging Respondent has been found

guilty of personal conduct which seriously reduces effectiveness

as an employee of the school board; (2) violation of section

1012.795(1) (j), alleging Respondent violated Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules; (3) violation of Rule 6A -

10.081(2)(a)l, alleging Responde nt failed to make reasonable

effort to protect student s from conditions harmful to learning

and/or to the student Ó s mental health and/o r physical health

and/or safety; and (4) violation of Rule 6A - 10.081(2)(c)l,

alleging Respondent failed to maintain hones ty in all

professional dealings.

The Department called the following individuals as

witnesses: Kathleen Visconti (appearing by phone) , Dave

Rosenberger, Scott Eline, John Frank, Kim Vongsyprasom, and

Joanna Bernal . P etitioner Ó s Exhibits 1 through 21 , and

Exhibit 23 were admitted in evidence. Respondent offered her

own testimony , and the testimony of Richelle Turner and Stacy

Christian . Respondent Ó s Exhibits 1 through 6 were admitted into

evidence. Official recognition wa s taken of the District Ó s

2016 - 17 school calendar, which was offered by the parties at the

hearing.

Th e Transcript was filed with DOAH in two parts: on

February 19, 2019 (first day of hearing held January 29, 2019);

and March 25, 2019 (second day of hearing held on March 8,

2019) . Th e parties requested and were given an extension to

file their proposed recommended orders (PROs) and an enlargement

of the 40 page - limit set forth in Florida Administrative Code

Rule 28 - 106.215 . Both parties timely filed their PROs on

April 8, 2019, and Respondent filed an a mended version of her

PRO on April 9, 2019. All post - hearing submittals have been

considered.

FINDING S OF FACT

Parties and People

1. The Department is responsible for investigating and

prosecuting allegations of misconduct against i ndividuals

holding educator certificates.

2. M s. Quinn holds Florida Educator Ó s Certificate 1110154 ,

which is valid through June 30, 2 023 , covering the areas of

English for Sp eakers of Other Languages , E SE , and Middle Grades

Integrated Curriculum and Rea ding. (Jt. Stip. Fact, ¶ 2) .

3. During the 2016 - 2017 school year, Ms. Quinn was

employed as a Varying Exceptionalities (VE) Specialist at

Pinellas Park Middle School (PPMS) in the Pinellas County School

District (District) . ( Jt . Stip. Fact, ¶ 3, as amen ded at the

hearing). 5 / At the time of the al legations in the Complaint,

Respond ent had approximately eleven years of experience as an

educator with the District beginning in 2008 as a VE Teacher at

District middle schools, up to December 2015, when she st arted

her present position of VE Specialist at PPMS. (Jt. Stip. Fact,

¶ 3, as amended at the hearing).

4 . Kathleen Visconti is the accommodation specialist for

the Bureau of K - 12 Subset at the Department. Her duties include

communicating with Florida sc hool districts about disability

accommodations, and reviewing and editing test administration

manuals.

5 . Scott Eline is the Assessment Specialist for the

District. He coordinates the administration of the FSAT in the

District, as well as course exams.

6 . Dave Rosenberger has been the PPMS principal since

2014.

7 . Kim Vongsyprasom has been an assistant principal at

PPMS since December 2014. As part of her duties, Assistant

Principal Vongsyprasom supervises the ESE Department at the

PPMS. Prior to bec oming a n assistant principal, she was the VE

Specialist at PPMS (the same position currently held by

Ms. Quinn) for twelve years. During the 2016 - 17 school year she

was Ms. Quinn Ó s direct supervisor.

8 . Joanna Bernal has b een an assistant principal at P PMS

since July 2015. Assi stant Principal Bernal served as the

Testing Coordinator for PPMS for the 2016 - 2017 FSAT.

9 . At PPMS the assistant principals may have overlapping

duties. As explained by Assistant Principal Bernal, each

assistant principal ha d Ð big rocks Ñ or areas of supervision.

For example, Assistant Principal Bernal was the administrator in

charge of assessment testing for all of PPMS , but she also had

oth er duties such as supervision for all of eighth grade.

Assistan t Principal Vongsypra som was in charge of transportation

for all of PPMS , and anot her assistant principal was in charge

of scheduling for all PPMS students .

10 . The ESE department was not a Ð big rock, Ñ because one

administrator was not responsible for all ES E student s Î it had

multi - person oversight . Assistant Principal Bernal Ó s oversight

of the eighth grade , for example, included responsibility for

eighth grade ESE students, even though Assistant Principal

Vongsyprasom was over the ESE Department.

Ms. Quinn Ó s Duties and IEP Responsibilities

11 . Ms. Quinn serves as the Chair of the ESE Department ,

and is supervised by Assistant Principal Vongsypras om.

12 . Ms. Quinn works with all the ESE teachers and staff to

determin e what accommodations are need ed and appropriate for

each ESE student. Ms. Quinn is responsible for overseeing

compliance with accommodations requirements for students with

disabilities at PPMS, including those who have Individual

Education Plans (IEPs).

13 . As background, an IEP is a legal document requi red by

the Individuals with D isabilities Education Act, a federal law

which requires schools to provide special education and related

services to child ren with disabilities. § 20 U.S.C. § 1400.

Failure to adhere to an ESE student Ó s IEP c an result in the

District Ó s liability for violations of state and federal laws .

14 . T he IEP provides directions for accommodating an ESE

student so that he or she can be as equal as possible to a non -

ESE student in an educational setting. Accommodations can be

provided b oth in the classroom and for assessment testing

situations.

15 . Ms. Quinn is not a classroom teacher and does not have

students assigned to her. Rather, she has a caseload of

students with disabilities for which she manages their

paperwork, including dr afting IEPs. She, however, does not have

final authority regarding what accommodations are listed in an

IEP.

16 . Rather, each IEP is individualized and specifically

created for each ESE student based on that student Ó s needs.

This is done through an inte ractive process made up of a team

(IEP team) of individuals that meet and review the ESE student Ó s

performance, progress, attendance, behavioral issues, and other

relevant data in order to fashion appropriate accommodations for

classroom learning and testi ng . The IEP team determines the ESE

student Ó s ability to function in the real world and the

classroom.

17 . Each IEP team includes required participants including

the parent, the student Ó s case manager, an ESE teache r, a

general education teacher, an d an interpreter for the

evaluations. Sometimes a local education agent (LEA) is also

involved to ensure all parti es involved with that child get the

appropriate information regarding that student Ó s IEP. The LEA

serves as a liaison between the family and the District to make

sure the school is adhering to the IEP in accordance with legal

requirements .

18 . The IEP document containing the accommodations is

drafted using a computer system known as Ð PEER. Ñ Although there

was a suggestion by counsel that PEER is an acronym for Ð Portal

to Exceptional Education Resource, Ñ there was no evidence at the

hearing supporting this definition.

19. Regardless, each IEP may contain standard

accommodations and/or Ðunique accommodations.Ñ O nce the IEP

team checks certain bo xes on the IEP, PEER provides a drop - down

menu populated with suggested standard accommodations . Th e IEP

team can then select which accommodations are required for that

ESE student. Anyone on the IEP team can recommend an

accommodation, but the team must come to an agreement to

finalize the accommodations listed on the IEP. Unique

accommodations must be approved by the District and/or the

Department.

20 . The IEP has one section for accommodations in the

classroom , and a separate section for accommodatio ns for

assessment testing. T he IEPs presented at the hearing were each

slightly different for each student , but each IEP had a section

marked Ð Assessment Accommodations Ñ or Ð For Students

Participating in Assessments with Acco mmodations. Ñ This section

has accommodations related to the following four categories:

Presentation, Responding, Scheduling, and Setting.

21 . Most relevant to the allegations made by the

Department against Ms. Quinn is the section titled Ð Responding. Ñ

All of the IEPs provided at th e hearing, except for one, allowed

the accommodation of Ð Organizers, outlines, checklists and other

writing supports. Ñ This accommodation was one of the standard

accommodations listed in the drop - down menu in the PEER system. 6/

FSAT Testing

22 . The FSA T is the state - wide student assessment program

examination that is administered in Flor ida public school s.

§ 1008.22, Fla. Stat. T he District is re sponsible for

administer ing the FSA T in public schools in Pinellas County.

Id.

23 . The FSAT is made up o f multiple testing areas

including an English Language Arts (ELA) component. The ELA

portion of the FSAT is made up of a reading section and a

separate writing section .

24. Mr. Eline, as the District Assessment Coordinator, was

responsible for administer ing the FSAT in the District. He

described the FSAT as Ð the standards by which students are

measured for adequate yearly progress to determine whether

they Ó re performing at grade level proficiency above or, perhaps,

below. Ñ

25 . Assistant Principal Bernal was responsible for

administering the FSAT at PPMS.

2 6 . Ms. Quinn was responsible for providing appropriate

accommodations during the FSAT to ESE students at PPMS that

required such accommodations. She did not proctor the exam.

2 7 . The test is graded on a range from one through five,

with one being the lowest and five being the highest. All

students taking the FSAT must score a three or higher to be

considered proficient in that area. This includes the ESE

students at PPMS that were required to take the exam.

28 . There is a strict protocol for administering the FSAT.

For a student whose test is invalidated, the school would have

no data as to the proficiency regarding that testing area for

the next school year.

29 . All District schools must partici pate in the FSAT.

The Department bases school accountability, in part, on FSAT

scores. FSAT scores also factor into teacher evaluations, and

potentially teacher pay. Teachers who can show significant

growth of their students Ó test scores may be entitled to a

bonus.

30 . All teachers involved in proctoring of the FSAT must

attend a training presentation. Assistant Principal Bernal was

in charge of the training during the 2016 - 17 school year. There

is a dispute as to whether Ms. Quinn attended this trai ning.

3 1 . There is no credible evidence Ms. Quinn attended the

training. Although the Department offered into evidence a sign -

in sheet for those who attended a training session , Ms. Quinn Ó s

name was not on it. The sign - in sheet only had Assistant

Princi pal Bernal Ó s signature as having attended for PPMS.

Likewise , there is no evidence Ms. Quinn had signed (or was

required to sign) the security agreement form required by those

who are involved in the chain of custody of the FSAT booklets ,

or for those who are proctoring of the exam. See FSA Manual,

Appendix D, 289 - 295.

3 2 . Ms. Quinn is also not listed as one of the recipients

in the email sent by Mr. Eline on December 6, 2016, to FSAT test

coordinators. This email contains a slide presentation on

Ð Spri ng 2017 Florida Standards Assessments Training Materials

for Paper - Based Assessments - Grades 4 - 7 ELA Writing; Grade 3

ELA Reading. Ñ

3 3 . The only testimony that Ms. Quinn had FSA T training

was supposition from Assistant Principal Bernal who testified

all PPMS teachers and FSAT proctors were required to take the

training. Those who attended the training were provided a FSAT

manual with their name written on it . After the training,

Assistant Principal Bernal had the manuals for those who did not

attend the training. She concluded that Ms. Quinn must have

attended the training because after the training she did not

have a manual with Ms. Quinn Ó s name on it. But Ms. Quinn was

neither a teacher nor a proctor . T he conclusion that if a

teacher missed the trai ning, then Assistant Principal Bernal

would still have that teacher Ó s manual, assumes Ms. Bernal had a

manual with Ms. Quinn Ó s name on it -- a fact not established at

the hearing. As such, the undersigned finds Ms. Quinn did not

attend the FSAT training for the 2016 - 17 year.

Accommodating the ESE Students at PPMS for the FSAT

3 4 . Because of the low rate in FSAT proficiency scores for

ESE s tudents a t PPMS, Ms. Quinn began researching a possible

solution or accommodation that would assist the ESE students

dur ing the FSAT testing period . She began looking into possible

aids for the ESE students at the beginning of the 2016 - 17 school

year.

3 5 . The unrefuted evidence establishes Ms. Quinn reviewed

all aspects of the ESE student testing experience, including

phy sical placement (grouping) during the test, anxiety levels of

students, testing dates, and student deficits. She reviewed all

of the listed accommodations in the PEER system for assessments.

She reviewed various databases and federal sources for

disabili ty accommodations to find a n accommodation for ESE

students so that they m ight obtain scores more in l ine with

their non - ESE peers.

36 . Based on her research, she began exploring the use of

Ð organizers, outlines, checklists, and other writing supports Ñ

which was a listed accommodation on the IEPs of some of the ESE

students for assessments .

3 7 . In October 2016 , Ms. Quinn email ed District personnel

including Debbie Thornton with questions regarding FSAT

accommodations. I n response she received the 2015

Accommodations for Florida Ó s S tatewide Stude nt Assessments (2015

Accommodations Manual). The manual was issued by the

Department Ó s Bureau of Exc eptional Education and Student

S ervices. The entire manual focuses specifically on

accommodating ESE students on statewide assessments.

3 8 . Contrary to Ms. Visconti Ós testi mony that the 2015

Accommodations Manual is outdated , it is still available on the

Department Ó s website . See Fla. Dep Ó t of Ed., 2015

Accommodations for Florida Ó s Statewide Student Assessmen ts ,

http://www.fldoe.org/core/fileparse.php/7567/urlt/

statewideassessmentaccommodations.pdf (last visited May 23 ,

2019). Moreover, there is no convincing evidence the District

or Ms. Quinn knew the 2015 Accommodation Manual was outdated.

In fact, there is no evidence anyone at the Department , the

District level or PPMS (including Assistant Principal

Vongsyprasom), advised Ms. Quinn that the Accommodations Manual

was invalid . 7/

3 9 . The undersigned finds Ms. Quinn Ó s reliance on the 2015

Accommodations Ma nual was reasonable under the circumstances.

40 . The 2015 Accommodations Manual provides in relevant

part:

MAKING DECISIONS ABOUT STATEWIDE

ASSESSMENT ACCOMMODATIONS

The IEP [ ] team makes decisions about

accommodations for an individual student

with a disability when they evaluate the

impact of the student Ó s disability and need

for accommodations in classroom instruction

and assessment activities. The content and

format of the statewide assessments are

important considerations in the decision -

making process. The following guidelines

are recommended for making decisions about

accommodations for statewide assessments:

1. Accommodations should facilitate an

accurate demonstration of what the student

knows or can do.

2. Accommodations should not prov ide the

student with an unfair advantage or

interfere with the validity of a test;

accommodations must not change the

underlying skills that are being measured by

the test.

3. Accommodations must be the same or

nearly the same a s those needed and used by

the student in completing classroom

instruction and assessment activities.

4. Accommodations must be necessary for

enabling the student to demonstrate

knowledge, ability, skill or mastery.

* * *

Classroom accommodations are used by the

student regularly for academic work and

assessments. In accordance with testing

guidelines, these same accommodations Î if

proven successful in the classroom and if

allowable - may be used during the

administration of statewide assessments.

* * *

Acco mmodations are documented on an IEP [ ]

based on the needs of the student and should

not be dictated by testing dates or

deadlines. Accommodations should be

determined necessary by the IEP [] team for

regular use by the student in the classroom

as well as on assessments.

If a student uses accommodations for

classroom instruction that are not permitted

on the statewide tests; the parent must be

notified.

2015 Accommodations Manual, 11.

4 1 . Ms. Quinn understood the above guidelines to mean that

accommod ations utilized in the classroom should be utilized,

when allowed , in the assessment setting. Ms. Quinn, however,

was unsure as to what would constitute an allowable FSAT

accommodation.

42 . On October 4, 2016, Ms. Quinn contacted Mr. Eline at

the Distric t level , in preparation for the 201 7 FSA T . She asked

questions about different accommodations and how to provide them

for the FSA T without giving the ESE students an unfair

advantage. E ventually, the emails focused on the standard

accommodation listed in the IEPs as Ð o rganizers, outlines,

checklists and other writing supports. Ñ

4 3 . There is no evidence that Mr. Eline told Ms. Quinn to

address the issue with the administration at PPMS. Rather,

initially, Ms. Quinn Ó s questions were forwarded to De bra He lton -

Boza, who was in charge of ESE compliance for the District.

4 4 . Ms. Quinn did not rec eive an answer to her questions.

I nstead, Ms. Helton - Boza provided Ms. Quinn with excerpts from

various sources including: the 2010 edition of Ð Accommodations,

Ass isting Students with Disabilities, Ñ the 2014 - 2015 edition of

the Ð FCAT/FCAT 2.0. NGSSS EOC Assessment Accommodations, Ñ the

2015 Accommodations Manual , and online resources.

4 5 . Ms. Quinn still did not have a clear answer from the

District regarding Ð allow able Ñ accommodations for the FSAT , so

she email ed Mr. Eline again on October 25, 2016.

4 6 . On the morning of November 30, 2016, Mr. Eline

forwarded the questions to the Department . At 1:38 p . m . on

November 30, 2016, Kathleen Visconti of the Department r esponded

that the mathematics grids/guides were an acceptable

accommodation for the FSA T , but that she needed more information

about using Ð sample problems and tasks Ñ and Ð organizers,

outlines, check lists, and other writing supports Ñ as testing

accommodati ons.

4 7 . Mr. Eline forwarded Ms. Visconti Ó s response to

Ms. Quinn . When Ms. Quinn asked Mr. Eline if she should contact

Ms. Visconti, he told her that all communications with the

Department should go through him. Ms. Quinn complied by

emailing Mr. Elin e more information about her questions.

48 . At no time did Ms. Quinn have direct contact with

anyone at the Department.

49. An email conversation between Mr. Eline and Ms. Quinn

ensued on the afternoon of November 30, 2016 , and lasted into

the evening. During this exchange, Mr. Eline (who was not in

charge of ESE students or accommodations for ESE students)

opined he did not think an organizer would be allowable, but

that he would ask the Department .

(emphasis added by Petitioner) (the 4:14 p.m. emai l) .

50. In a separate email exchange, Mr. Eline and

Ms. Visconti discussed Ms. Quinn Ó s questions regarding an

organizer.

(emphasis added by Petitioner).

51 . The parties dispute whether Ms. Quinn received this

email . Although there is an email from Mr. Eline to Ms. Quinn

at 5:10 p.m. on November 30, 2016 ( 5:10 p.m. email) , it simply

states Ð FYI . Ñ It does not indicate there is an attachment, nor

does it contain any of Ms. Visconti Ó s 4:14 p.m. email message.

Based on Ms. Quinn Ó s demeanor and testimo ny, coupled with the

appearance of the 5:10 p.m. email , the undersigned finds

Ms. Quinn did not receive this message and did not know that

Ms. Visconti said Ð no Ñ to the use of an organizer as an

accommodation for the FSAT.

5 2 . T he email exchange between Ms. Vi sconti and Mr. Eline

establishes the District had no definite answer to Ms. Quinn Ó s

question as to whether a n organizer was an Ð allowable Ñ

accommodation until 4:14.p.m. on November 30, 2019.

5 3 . Ms. Quinn continued her email conversation with

Mr . Eline. These email s establish Ms. Quinn Ó s intent was to

know how to abide by the IEPs assessment accommodations without

Ð getting ou rselves into trouble. Ñ

5 4 . The email conversation between Mr. Eline and Ms. Quinn

ended on December 1 , 2016 , at 8:51 a . m . , when Ms. Quinn stated

that she sent several pictures from PEER showing what the drop -

down menus contained as accommodations, including one regarding

organizers. Based on the emails she received, Ms. Quinn did not

think Mr. Eline had given her a definit ive answer to her

question about using an organizer as an accommodation .

55 . During their email exchange, Mr. Eline also referred

Ms. Quinn to the Spring 2017 FSA Paper - Based Test Administration

Manual (2017 FSA T Manual). The 2017 FSA T Manual addresses t he

process for administering the FSAT to all students . The 2017

FSAT Manual says nothing about replacing the 2015 Accommodations

Manual, nor does it allow someone in Ms. Quinn Ó s position to ask

the Department questions directly about specific accommodatio ns .

Rather it instructs in relevant part:

School personnel should communicate with

their district offices about any questions

or concerns prior to test administration;

district personnel should contact FDOE if

guidance or clarification is needed.

2017 F SA Manual, 1. Ms. Quinn complied with this instruction.

5 6 . The 2017 FSA Manual does not define what kind of

organizer was an allowable accommodation during the testing

process , but does address assessment accommodations in general .

It states in relevant part:

Students with Disabilities

Students with disabilities participate in

the statewide assessment program by taking

one of the following:

1. FSA without accommodations,

2. FSA with accommodations, or

3. Florida Standards Alternate Assessment.

All de terminations regarding participation

in the statewide assessment program must be

documented in the studen t Ó s IEP or Section

504 plan.

* * *

General Information about Accommodations

Appendix A provides information concerning

allowable accommoda tions for students with

disabilities and for ELLs. The test

administrator and the school assessment

coordinator are responsible for ensuring

that arrangements for accommodations have

been made prior to the test administration

dates.

* * *

If st udents with current IEPs, Section 504

plans, or . . . plans have allowable

accommodations documented, test

administrators may provide accommodations as

described in Appendix A and may modify the

script as necessary to reflect the allowable

accommodations.

5 7 . Appendix A does not address the use of Ð Organizers,

outlines, checklists and other writing supports. Ñ Rather it

repeats the guidelines in the 2015 Accommodation Manual,

including:

3. Accommodations must be the same or

nearly the same as those neede d and used by

the student in completing classroom

instruction and assessment activities.

2017 FSA Manual, 62.

5 8 . On January 24, 2017, Ms. Quinn advised Mr. Eline that

the 2017 FSA manual was not helpful in answering the question

about using an organize r as an accommodation . She also told him

that the Department had not yet answered her question about the

organizer accommodation . She then aske d Mr. Eline if an

organizer would be considered a Ð unique accommodation. Ñ

59. A gain , Mr. Eline did not say Ð yes Ñ or Ð no. Ñ Instead

he stated it was his Ð inclination Ñ that it was not allowable,

but he would defer to Deb Thor n ton at the District . It is

unclear whether Ms. Thor n ton ever responded to Ms. Quinn.

60 . Although Ms. Quinn was aware there was a process f or

requesting Ð unique accommodation s , Ñ she did not believe the use

of an organizer was Ð unique Ñ for numerous reasons. First, the

use of or ganizers was one of the standard drop - down

accommodations listed in PEER, not requiring special approval by

the Depar tment . Second, because numerous ESE students had this

accommodation listed on their IEPs, any organizer would not be

unique (i.e., an exclusive or individual accommodation aid).

Ms. Quinn Ó s conclusion that the use of an organizer was not a

Ð unique accom modation Ñ was reasonable under the circumstances.

61 . Not having a concrete answer as to whether the use of

an organizer was an allowable accommodation, or what that

organizer would look like, Ms. Quinn raised the issue during an

ESE Department meeting in early 2017 . This meeting was attended

by an E SE ELA teacher, Stacy Christian ; a behavioral specialist,

Richelle Turner ; and Assistant Principal V ongsyprasom .

6 2 . During that meeting the participants discussed whether

an organizer type accommodation co uld be provided to ESE

students for use during the 2017 FSAT. There is a dispute as to

what Ms. Quinn relayed to the gro up about her conversations with

Mr. Eline.

6 3 . Ms. Quinn Ó s version of events is supported by that of

Ms. Christianson and Ms. Turner . The undersigned finds

Ms. Quinn did not imply or state at the meeting that she had

receive d approval for using a graphic organizer.

6 4 . Rather, at that meeting she voiced frustration tha t

she could not get clear direction from the District or the

Dep artment regarding the use of such an accommodation. She then

asked the team members for input . None of the team members, not

even Assistant Principal V ongsyprasom , questioned providing some

type of organi zer as an accommodation for the ELA portion of the

FSAT to those students who had IEPs referencing such an

accommodation.

6 5 . The group at the meeting then discussed the form this

type of accommodation might take. Ms. Turner advocat ed using an

accommodation that mirrored the type used in the classroom.

Ms. Christian relayed to the group that she use d a chart that

hung on her classroom wall to a ccommodate students with the

Ð organizers, outlines, checklists, and other writing supports Ñ

accommodation on their IEPs. That chart was not in the room

during t he meeting, nor did Ms. Christian provide the team with

a copy of the chart. It is uncle ar who, if anyone, at this

meeting was familiar with Ms. Christian Ó s chart.

6 6 . After the meeting Ms. Christian reduced the wall chart

to the size of a letter sized h and - out (Graphic Organizer). The

Graphic Organizer was a two - sided sheet, with a flow chart

titled Ð Argumentative Essay Planner Ñ on one side and another

flow chart titled Ð Explanatory Essay Planner Ñ on the other side.

The top bubble on each flow chart de scribes an Ð introduction

paragraph Ñ with an arrow to two or three bubbles titled Ð body

paragraphs, Ñ and then an arrow to a bubble titled Ð conclusion

paragraph. Ñ Each bubble describes the types of sentences or

thoughts that should be included in that parag raph.

6 7 . Ms. Christian initially showed the Graphic Organizer

to Ms. Quinn. Ms. Quinn did not approve its use, rather she

asked Ms. Christian to show it to Assistant Principal

V ongsyprasom .

6 8 . Assistant Principal V ongsyprasom Ó s testimony was that

s he was shown something by Ms. Christian, but did not review it.

She also testified she was not authorized to approve FSA

Accommodations.

69. Ms. Christian Ó s credible and convincing testimony

established she showed the Graphic Organizer to Assistant

Pri ncipal V ongsyprasom , and told her Ms. Quinn wanted her

approval. Assistant Principal V ongsyprasom reviewed the Graphic

Organizer. When asked by Ms. Christian whether it was okay,

Assistant Principal V ongsyprasom replied, Ð yes. Ñ The

undersigned finds the testimony of Ms. Christian more

believable.

70 . Even if Assistant Principal V ongsyprasom Ó s testimony

that she did not look at what was shown to her by Ms. Christian

is true, the undersigned finds the members of the ESE meeting ,

including Ms. Quinn, reas onably believed Assistant Principal

V ongsyprasom approved the use of the Graphic Organizer for use

as an accommodation on the ELA portion of the FSAT.

2017 FSAT

71 . After Ms. Christian received approval from Assistant

Principal V ongsyprasom regarding the Graphic Organizer,

Ms. Quinn made copie s of the reduced version of the

chart/organizer she obtained from Ms. Christian for each of the

students who had listed on their IEP Ð organizers, outlines,

checklists, and other writing s upports Ñ under accommodation s for

testing assessments.

7 2 . Ms. Quinn wrote each ESE student Ó s name on the top of

his or her copy of the Graphic Organizer, placed the documents

in a m anila folder with that student Ó s t est proctor Ó s name on

the folder , and distributed the folders to t he appropriate

proctor the morning of the ELA portion of the FSAT.

7 3 . On February 28, 201 7 , P PMS administered the ELA

portion of the FSAT. In total, 37 ESE students received a copy

of the Graphic Organizer with their testing materials. Of

these, all bu t one had on their IEPs listed Ð organizers,

outlines, checklists, and other writing s upports Ñ as an

assessment accommodation.

7 4 . Ms. Quinn did not collect the Graphic Organizers after

testing. Rather, each document was either taken home by the

student or turned in with all other testing materials.

Ms. Quinn made no attempt to hide her distribution of the

Graphic Organizer.

7 5 . O n the day of the testing, or shortly thereafter, a n

ESE student Ó s parent (who coincidentally was a District

employee) discov ered the Graphic Organizer and sent it to

Principal Rosenberger Ó s attention.

7 6 . Assistant Principal Bernal also discovered copies of

the Graphic Organizer in the testing materials being collected

back from the proctors. She raised concerns with Principa l

Rosenberger, who in turn questioned Ms. Quinn.

7 7 . Contrary to Petitioner Ó s position that Principal

Rosenberger Ð knew immediately that the graphic organizer was not

allowed , Ñ see Pet Ó r PRO, ¶ 37, the email s show otherwise.

Principal Rosenberger emaile d Ms. Quinn at 7:14 p.m. on

February 29, 2017, indicating he had been contacted by a parent,

who was worried there was cheating going on during the FSAT. He

noted, Ð So far, only ESE students appear to have them. I will

need to know the source, and can I justify their use as an

acceptable type of support, as a reasonable accommodation for

ESE students on a standardized test? Your thoughts please, I

need to nip this quickly. Ñ

7 8 . In response, Ms. Quinn provided a lengthy explanation

for the use of the Gr aphic Organizer. This response was

prepared in collaboration with Ms. Turner and contained

citations to various sources.

79. Principal Rosenberger cut and paste d the explanations

Ms. Quinn had provided in an email he sent to Mr. Eline, noting

Ð Ms. Quin n made a valid point that the graphic organizer viewed

in isolation clearly paints the school in a poor light. She has

requested that we include a rationale for its use. The reader

should be reminded that only ESE students with testing

accommodations ind icated on their IEP had access to the

document. Ñ There is no indication how Mr. Eline responded to

Principal Rosenberger , or that Mr. Eline informed Principal

Rosenberger that a ny kind of organizer was an unacceptable

accommodation.

80 . The Department a lleges Ms. Quinn was dishonest in her

conversations with Principal Rosenberger after the 2017 FSAT.

Principal Rosenberger testified that Ms. Quinn implied Mr. Eline

had given her permission to use the Graphic Organizer , but her

email s to him showing her e xplanation do not indicate she

received permission from anyone. Rather, th ey indicate, as did

the testimony at the hearing that Mr. Eline did not give

Ms. Quinn a firm Ð no. Ñ Even Principal Rosenberger admitted,

Ð the recommendations from the distri ct nev er specifically said

Ò no , Ó Ñ although he inferred a Ð no Ñ from the email Mr. Eline sent

to Ms. Quinn at 3:50 p.m. on November 30, 2016.

81 . On March 2, 2017, Principal Rosenberger notified

Ms. Quinn the District office had rejected the use of the

Graphic O rganizer . He noted, Ð Basically the blank graphic

organizer might have passed . . . however what was provided was

so detailed that it appeared to be directions on how to complete

the test. The [District] ESE office up here was consulted and

they immediate ly declined it. Without a special review by [ the

Department ] , I do not think it was truly reviewed in detail, if

nothing else we failed to follow the process [,] thus it is a

violation. Ñ

8 2 . Ultimately, the Department ruled the Graphic Organizer

was not a n appropriate accommodation for the ELA portions of the

FSAT. The District invalidated the ELA test scores for all 37

ESE student s who received a copy of the Graphic Organizer .

8 3 . Upon further investigation, the District learned that

36 of the 37 ESE s tudents were eligible for an Ð organizer Ñ as an

Ð approved Ñ accommodation during an assessment test. The

remaining ESE st udent did not have that accommodation listed on

his or her IEP.

8 4 . On or around April 6, 2017, Ms. Quinn was notified she

would be que stioned by John Frank, the administrator for the

District Ó s Office of Professional Standards. Although

Mr. Frank Ó s testimony and notes are largely hearsay, it i s clear

from the evidence at the hearing that Ms. Vongsyprasom was

unwilling to take any respo nsibility for the use of the Graphic

Organizer. Ms. Quinn, on the other hand, acknowledged her role

and fully cooperated with Mr. Frank Ó s investigation.

8 5 . The District and Ms. Quinn entered into a stipulation

regarding the use of the Graphic Organizer , and Ms. Quinn was

suspended for one day without pay. 8/ The matter was referred to

the Department Ó s Education Practices Commission (EPC) .

8 6 . Although the evidence established that invalidation of

FSAT scores are Ð a big deal Ñ and Ð serious business, Ñ the re is

insufficient evidence to determine, what effect, if any , this

had on the individual ESE students or their educational plan.

Although there was testimony the ESE students with invalidated

tests would require additional reading and writing instruction ,

it is unclear that the results would have been different had the

test scores not been invalidated. T he IEPs of the 37 students

involved reflect that most , if n o t all , had n ot been deemed

proficient on the ELA portion of the FSAT ( i.e. , their past

scores were below a 3). Only ten percent of all ESE students

showed gr ade level proficiency in ELA in the previous school

year.

8 7 . The Department argues, Ð Mrs. Quinn Ó s defense and

demeanor clearly indicated she has not taken ownership of what

she did wrong. Ñ (Pet Ó r PRO, ¶52.) The evidence establishes

otherwise. Ms. Quinn made no effort to hide the use of the

Graphic Organizer from anyone. She immediately responded to

Principal Rosenberger Ó s request for her reasoning behind the use

of the Graphic Organizer . She accepted the District Ó s

discipline without dispute. She admitted that the inclusion of

verbiage inside the flow chart bubbles was, in retrospect, an

error. Moreover, during her testimony at the hearing she did

not try to blame anyone else for the use of the Graphic

Organizer .

8 8 . Ms. Quinn has two other disciplines from the District,

but neither involves testing violations. She has no previous

violations brought by the Department or the EPC.

89 . Ms. Quinn remains the chair of the ESE Departme nt at

PPMS. She continues to serve ESE students, parents and teachers .

Although there was testimony Ms. Quinn is not allowed to proctor

FSAT, she had not been proctoring the test previously.

CONCLUSIONS OF LAW

9 0 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 12 0.57(1), Florida

Statutes .

91 . Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructiona l

personnel. §§ 1012.795(1) and 1012.796(6), Fla. Stat.

9 2 . Petitioner seeks to suspend Respondent Ó s educator

certificate. Such an action against a professional license is

penal in nature and requires Petitioner to prove the allegations

in the Complaint by clear and convincing evidence. Fla. Dep Ó t

of Child. & Fam s . v. Davis Fam. Day Care Home , 160 So. 3d 854,

856 (Fla. 2015) ( reaffirming that an agency must prove its

reasons for imposing a fine or revoking a professional license

by clear and convincing e vidence because such a proceeding is

penal in nature and implicates significant property rights ).

9 3 . Clear and convincing evidence Ð requires more proof

than a Ò preponderance of the evidence Ó but less than Ò beyond and

to the ex clusion of a reasonable doub t. Ó Ñ In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). The c lear and convincing standard

req uires :

[T]he evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and expl icit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought t o be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quotations

omitted).

Count 1

9 4 . Count 1 of the Complaint seeks to discipline

Respondent on charges that she violated section 1012.795(1)(g)

for having been found guilty of personal conduc t that seriously

reduced her effectiveness as an employee of the district school

board.

9 5 . T here was not clear and convincing evidence

Ms. Quinn Ó s role had been reduced or that she was a less

effective ESE Department Chair. As such, Petitioner has fail ed

to establish a violation as alleged in Count 1 of the Complaint.

Count 2

96 . Count 2 of the C omplaint alleges that Respondent

violated section 1012.795(1)(j) for violating the Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules. Count 2 is derivative of the

rule violations charged in Counts 3 and 4.

9 7 . For the reasons cited below, Petitioner has failed to

present clear and convincing evidence Petitioner has violated

the Principals of Professio nal Conduct, and therefore has failed

to establish the violation alleged in Count 2 of the Complaint.

Count 3

9 8 . Count 3 of the Complaint alleges a violation of

Rule 6A - 10.081(2)(a)1, which states:

6A - 10.081 Principles of Professional Conduct

for the E ducation Profession in Florida.

* * *

(2) Florida educators shall comply with

the following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation or

suspension of the individual educator Ó s

cert ificate, or the other p enalties as

provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student Ó s mental

and/or physical he alth and/or safety.

99 . Taken as a whole, the evidence was not clear and

convincing that R espondent distributed the Graphic Organizer to

harm the ESE students . To the contrary, the evidence proved

Respondent was simply trying to accommodate these studen ts in

accordance with what was listed in their IEPs.

10 0 . Although the test results of those students who were

provided the Graphic Organizer were invalidated , and the

District and PPMS were placed in a negative light, there was no

testimony regarding the effects of disqualification on

individual students.

10 1 . Accordingly, Petitioner failed to establish that

Respondent allowed students to be harmed as alleged in Count 3

of the Complaint.

Count 4

10 2 . Count 4 of th e Complaint alleges a violation of

Rule 6A - 10.081(2)(c)1, which dictates professional educators,

Ð [s] hall maintain honesty in all professional dealings. Ñ

10 3 . Petitioner did not establish by clear and convincing

evidence Ms. Quinn acted in a dishonest way, or that she lied to

anyone regard ing the use of the Graphic Organizer . Before the

testing, she did not hide the fact she was seeking an

appropriate accommodation for the ESE students who had the

Ð organizer Ñ accommodation listed on their IEP. She did not hide

the use of the Graphic Organ izer from PPMS administration;

Ms. Vongsyprasom was present at the ESE meeting where it was

discussed, and was shown a copy of the actual Graphic Organizer .

After the testing, Ms. Quinn did not try to cover up the

distribution of the Graphic Organizer , n or did she try to point

the finger at any of the participants in the ESE meeting .

10 4 . Petitioner failed to establish Respondent was

dishonest as alleged in Count 4 of the Complaint.

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 charges against Respondent.

DONE AND ENTERED this 28th day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

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 Administr ative Hearings

this 28th day of May , 2019 .

E NDNOTE S

1/ Unless otherwise specified, the statutory and rule citations

are to the 2017 versions, which were in effect on February 28,

2017, the time of the conduct alleged in the Administrative

Complaint. S ee McCloskey v. Dep Ó t of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013).

2/ This case was previously styled with Pam Stewart as

Commissioner of Education. On January 8 , 2019, Richard Corcoran

became the Commissioner of Education, and was substituted as the

Respondent.

3/ The undersigned accepts the stipulation of facts, absent a

showing of fraud, misrepresentation or mistake. See Delgado v.

Ag. for Health Care Admin. , 237 So. 2d 3d 432, 436 - 37 (Fla. 1st

DCA 2018) .

4 / The Complaint replaced the Acc ommodations Manual with the

Ð 2017 FSA test administration manuals Ñ as the manuals on which

to rely in providing accommodations during statewide

assessments. ( See Amended Administrative Complaint, ¶5, filed

February 1, 2019 ) .

5/ Ð Varying Exceptionalities Ñ students are a subset of ESE

students that have disabilities such as low intellect, health

impairments, and other disabilities that hinder their

educational performance. Ms. Quinn and the IEPs also mention

students with Ð autism spectrum disorder Ñ or Ð em otio nal

behavioral disability . Ñ For the purposes of this recommended

order all of these students will be referred to as Ð ESE

students. Ñ

6/ Examples of accommodations listed in the IEPs presented at

the hearing for the Ð Presentation Ñ section include: Ð o ral

presentation of directions Ñ ; Ð di rections repeated, clarified; Ñ

Ð verbal encouragement ( e.g. , Ò keep working Ó Ò make sure to answer

every question Ó Ñ ); and sample problems and tasks. S imilarly,

examples of accommodations listed in the Ð Scheduling Ñ section

include: Ð Extended time (As much time during the school day to

complete any started portion of any assessment); Time management

tools like checklists, assignment planners or visual schedules. Ñ

Accommodations listed under the Ð Setting Ñ section pertain to

small group settings and preferential seating. As explained at

the hearing, some ESE students needed to be proctored by a

familiar teacher , tested in a specific type of classroom, or

te sted (or not tested) with certain students.

7 / Interestingly, the or iginal Administrative Complaint listed

the 2015 Accommodations Manual as the manual which sets forth

the rules and procedures to be followed in providing

accommodations for the FSA T .

8/ Petitioner argued at the h earing that Ms. Quinn was bound by

the fac ts contained in the District discipline stipulation.

Although Ms. Quinn Ó s acceptance of those facts may be

inconsistent with her testimony, they do not preclude her from

introducing evidence to the contrary , especially in a separate

matter with a separate agency . See Lambert Bros., Inc. v. Mid -

Park, Inc. , 185 So. 3d 1266, 1269 (Fla. 4th DCA 2016) ( Ð T he

principles of res judicata and collateral estoppel do not always

nearly fit within the scope of administrative proceedings and

should be applied with great caution. As the Florida Supreme

Court observed, administrative procedures are often summary,

parties are sometimes unrepresented by counsel, and permitting a

second consideration of the same question may frequently be

supported by other similar reasons wh ich are inappl icable to

judicial proceedings. Ñ citations and quotations omitted); Delray

Med. Ctr. v. Ag. for Health Care Admin. , 5 So. 3d 26, 29 (Fla.

4th DCA 2009) ( Ð Florida courts do not apply the doctrine of

administrative finality when there has been a significant change

of circumstances or there is a demonstrated public interest . Ñ ).

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Stre et

Tallahassee, Florida 32399 - 0400

(eServed)

Carol R. Buxton, Esquire

Florida Education Association

1516 East Hillcrest Street , Suite 109

Orlando, Florida 32803

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Matthew Mears

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Randy Kosec, Jr. , Chief

Office of Professional Services

Department of Education

Turlington Building, Suite 224 - E

325 W est 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 exceptions

to this Recommended Order s hould be filed with the agency that

will issue the Final Order in this case.