19-005650 Matthew B. Forrest vs. Richard Corcoran, As Commissioner Of Education Status: Closed Recommended Order on Friday, February 14, 2020.

Summary: Department appropriately invalidated Petitioner's FCTE exam for violation of test center rules.

P RELIMINA RY S TATEMENT

Petitioner took and passed the General Knowledge portions of the Florida

Teacher Certification Examination (“FTCE”) on February 25, 2019. Petitioner

took the Health K - 12 Certification Examination on August 7, 2019, at the

Pearson test center l ocated at Florida Gateway College in Lake City, Florida.

On or about September 17, 2019, Petitioner received notice from the

Department of Education that his Health K - 12 examination results had been

invalidated. Petitioner timely filed a request for hear ing to contest the

invalidation of his examination, which the Department of Education forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct a fact - finding hearing.

The final hearing was scheduled f or January 7, 2020, and commenced as

scheduled. At the final hearing, Petitioner testified on his own behalf, and

offered no exhibits into evidence. Respondent presented the testimony of

John Hartzog, the test center coordinator at Florida Gateway College; and

Jasmine Carnell, the Department’s test administration project coordinator.

Respondent's Exhibits R1 through R10 were admitted in evidence.

The one - volume Transcript of the final hearing was filed on January 22,

2020. Respondent timely filed a Propos e d Recommended Order on

February 3, 2020, which has been considered by the undersigned in

pre paring this Recommended Order. Petitioner did not file a proposed

recommended order.

F INDINGS OF F ACT

1. Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where,

at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School.

2. In order to continue teaching HOPE for the 2019 - 2020 school year,

Petitioner was required t o become a certified teacher by passing both the

General Knowledge and the Health K - 12 components of the FTCE.

3. Respondent, Richard Corcoran, as Commissioner of Education

(hereinafter, “Respondent” or “Department), is the agency with the duty and

authori ty to certify teachers for the State of Florida. For purposes of this

Recommended Order, the Department is the “test program sponsor.”

4. The Department administers the FTCE through third party test

administrators. The test administrator in the instant cas e is a company

known as “Pearson.”

5. Petitioner took and passed the General Knowledge Examination on

February 25, 2019.

6. Petitioner took the Health K - 12 Examination on three different

occasions. The administration of the exam relevant hereto was on Augu st 7,

2019.

7. Two different types of breaks may be taken during test administration.

8. A scheduled break is automatic, usually given between sections of an

exam. The test administrator instructs candidates as to the length of the

break and when to retur n to the testing room. During a scheduled break, a

candidate may access personal items which have been stored at the test

center.

9. An unscheduled break is voluntary, and may include time to use the

restroom or water fountain.

10. John Hartzog was the tes t center administrator for the August 7, 2019

exam administration.

11. Petitioner took three unscheduled breaks during the exam. The first

lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each

break, Petitioner notified the proctor he was leaving to use the restroom.

12. At the Florida Gateway College test center, the restrooms are separate

from the testing rooms. The two are located in the same building, but are

accessed by different entrances connected by an outdoor covered walkwa y.

13. The restrooms are considered part of the test center building; however,

the parking lot is not.

14. During Petitioner’s third unscheduled break, Mr. Hartzog walked

down to the restrooms to check on Petitioner. Mr. Hartzog observed

Petitioner exiting his personal vehicle in the parking lot.

15. Petitioner explained that he had water bottles stored in his vehicle

and had retrieved and consumed a water bottle after he used the restroom.

16. Through the window of the vehicle, Mr. Hartzog observed a case of 12 -

ounce water bottles on the back seat directly next to a beach bag, which was

unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other

papers, as well as Petitioner’s cell phone, in plain view in the open bag. 1

Administrative Charges

17. On or about September 17, 2019, Petitioner received the Agency

Action Letter, which states, in pertinent part, as follows:

As noted on the program website under ‘Policies,’

the FTCE/FELE testing rules DO NOT permit an

examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K - 12

examination taken on August 7, 2019, have been invalidated.

18. The Department has charged Petitioner with both leaving the test

center, and accessing prohibi ted materials, during an unscheduled break.

2

1 Mr. Hartzo g photographed the items on the back seat, as well as the items in the open bag.

The photographs were admitted in evidence as Respondent’s Exhibit 10.

2 The Department’s Agency Action Letter does not specifically state what actions taken by

Petitioner con stitute a violation of the rules. Respondent’s position was clarified throughout

the final hearing.

C ONCLUSIONS OF L AW

19. The Division has jurisdiction of the parties to, and subject matter of,

this proceeding. See § 120.57, Fla. Stat. (2019).

20. Respondent is responsible for certifying teachers in Florida and

conducts certification examination s for Florida educators. § 1012.56, Fla.

Stat. The statute governs contracts for administering written examinations,

and provides that the “delivery system for these examinations shall provide

for overall efficiency, user - friendly application, reasonable accessibility …

and prompt attainment of examination results.” § 1012.56(9)(f), Fla. Stat.

21. Respondent has adopted Florida Administrative Code Rule 6A - 4.0021

to implement the forgoing statutory provisions. The rule provides, in

pertinent part:

(1) Scope. This rule governs the written

examinations for teacher certification. Additional requirements for certification are specified in

chapter 6A - 4, F.A.C.

(2) Description of the examinations and

competencies to be demonst rated.

(a) The Florida Teacher Certification Examinations

shall be developed by the Commissioner of

Education.

(b) The written examinations shall include subtests

of English language skills, reading, writing, mathematics, professional skil ls, and subject a rea

specialty. These examinations may contain

multiple - choice questions and questions requiring

the examinee to write an answer or demonstrate a proficiency.

* * *

(3) Administration of the examinations.

(a) The examinations shall be administered by a te st administration agency or agencies under

contract with the Florida Department of Education.

(b) The examinations shall be administered at least four (4) times each year. The Commissioner of

Education shall designate the registration

deadlines, administra tion sites, and examination

dates.

(c) The examinations shall be administered at sites

designated by the Commissioner of Education.

* * *

(10) Score reports for the general knowledge essay,

english language skills, reading, and mathematics

subtests, prof essional education test, and subject

area examinations.

(a) A properly authenticated score report is defined

as the original score report issued directly by the

test administration agency without any qualification, reservation, or irregularity.

(b) The exa minee shall be sent an authenticated

score report as described in paragraph 6A -

4.0021(10)(a), F.A.C.

22. Petitioner did not receive a “properly authenticated score report” as

that term is used in the rule. Respondent invalidated Petitioner’s

examination f ollowing the investigation of the proctor’s report of “candidate

error or misconduct.”

23. As the party seeking certification, Petitioner bears the burden to

prove, by a preponderance of the evidence, that he has met the requirements

for his examination sc ore to be reported. See Dept. of Banking and Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996). However, Respondent

has the burden to establish, by a preponderance of the evidence, both that

Petitioner committed the violations alleged in the A gency Action Letter and

that such violations warrant invalidation of Petitioner’s exam. See Id.

Leaving the Test Center

24. Upon arrival at the test center, Petitioner signed in for the exam on a

digital screen, where he agreed to the following pertinent P rofessional

& Regulatory Candidate Rules (“test center rules”):

You must leave the testing room for all breaks. If

you want to leave the test center building

during any breaks, verify with the TA

whether your test program sponsor permits you to leave the building.

25. Petitioner admitted he broke the rules by going to the parking lot after

using the restroom on his third unscheduled break. Without permission from

the test center administrator, Petitioner left the test center and entered his

vehicle in the parking lot.

Accessing Prohibited Materials

26. The Department has published standardized information for

examinees defining prohibited materials and aids, both electronic and non -

electronic. The Department provides that prohibited aids are “items that m ay

give an unfair advantage to an examinee and/or detract from a fair and

standardized assessment.”

27. The test center rules to which Petitioner agreed provide, in pertinent

part, as follows:

If you are taking any break, you MUST receive

permission from the TA PRIOR to accessing

personal items that have been stored (with the

exception of comfort aids, medication, and food,

which you may access without permission). Unless

specifically permitted by the test program sponsor, personal items that cannot be ac cessed during any

break include but are not limited to mobile phones,

test notes, and study guides.

28. “Access” is defined as follows:

3

Definition of access (Entry 2 of 2)

transitive verb

: to get at : to gain access to: such as

a: to be able to use, en ter, or get near (something)

accessed the computer by phone

a system that makes it easier to access the money in your bank account

3 See “Access.” Merriam - Webster.com Dictionary , Merriam - Webster, https ://www.merriam -

webster.com/dictionary/access. Last visited Feb. 5 , 2020.

b: to open or load (a computer file, an Internet site,

etc.)

a file that can be accessed by many users at the

same time

29. While Petitioner was in his vehicle, he had the ability to use, to get at,

or to get near his cellular phone and exam study notes. Pursuant to the plain

meaning (dictionary definition) of the verb “to access,” Petitioner accessed

prohibited materials durin g an unscheduled break.

Invalidation of Examination

30. Neither the applicable statute nor the rule addresses penalties for

violating FTCE testing procedures.

31. Ms. Carnell testified that Respondent’s authority to invalidate

Petitioner’s exam for violati ng test center rules derives from t he

Department’s document titled “Important Testing Information and

Agreement to the Testing Rules,” which Petitioner was required to

acknowledge during exam registration, and which reads, in pertinent part:

There are two types of automatic score

invalidations:

If you retake the same test sooner than the 31 st

calendar day after the previous administration, or sooner than the 31

st calendar day after attending a

score verification session for that test, or within three years of receiving a passing score, the score(s)

for the latter administration will be invalidated.

Possession of a cell phone (or any electronic prohibited aid) during testing will result in an automatic score invalidation.

For more information regarding sco re invalidations

and invalidations due to cheating, refer to the memorandum titled “Important Information about Cheating Behaviors and Test Score Invalidations”

and the “Agreement to the Testing Rules” below.

* * *

I understand that if I am found possessi ng a

cell phone or an electronic prohibited aid

(regardless of circumstances and whether on/off),

unless on a scheduled break, I will not be allowed

to continue testing, the test site will report this

information to the Department, and this act of possessi on of an electronic prohibited aid will

result in an automatic score invalidation .

32. The referenced “Important Information about Cheating Behaviors and

Test Score Invalidations” reads as follows:

If an examinee is found possessing a cell phone or an ele ctronic prohibited aid as

outlined in Section 2, the examinee will not be allowed to continue testing, the test site will report

this information to the Department, and this act of

possession of an electronic prohibited aid will

result in an automatic scor e invalidation .

[ 4 ]

33. Respondent has not charged Petitioner with possession of a prohibited

electronic aid. 5 Therefore, the cited registration documents do not authorize

Respondent to automatically invalidate Petitioner’s exam.

34. Ms. Carnell further id entified the Pearson test center rules themselves

as authority for Respondent’s invalidation of Petitioner’s exam.

35. Upon signing in for the exam, Petitioner agreed to the following

Candidate Statement:

I understand the information provided above and a gree to follow these rules in addition to any other

program rules I may have agreed to during my registration for this test. If I do not follow the rules

or I am suspected of cheating or tampering with the

computer, this will be reported to Pearson VUE an d

the test sponsor, and I acknowledge and

4 Section 2 defines electronic prohibited aids to include cellular phones as well as a variety of

other electronics, including CD players, MP3 players, and other electronic

communica tion/recording/listening devices .

5 Upon inquiry from the undersigned, Respondent’s counsel clarified on the record that the

Department’s position is that Petitioner “had access to prohibited aids,” not that he

possessed a cell phone. T.68:4 - T.69:7 .

understand that my test may be invalidated, and

the sponsor may take other action such as decertifying me, and I will not be refunded m y test

fee.

36. With regard to the second allegation — accessing prohibited ma terials

during an unscheduled break — the test center rules prohibit an examinee

from accessing cell phone s, test notes, and study guides during any break,

unless specifically permitted by the test program sponsor.

37. Petitioner did not meet his burden to p rove he had satisfied all the

requirements to have his score on the Health K - 12 examination reported.

38. Respondent met the burden to prove that Petitioner committed both of

the violations alleged in the Agency Action Letter.

39. The candidate statement p ortion of the test center rule provides as

follows:

If I do not follow the rules or I am suspected of

cheating or tampering with the computer, this will

be reported to Pearson VUE and the test sponsor, and I acknowledge and understand that my test

may be invalidated , and the sponsor may take

other action such as decertifying me, and I will not

be refunded m y test fee (emphasis added).

40. Thus, the Department has the discretion to invalidate Petitioner’s

exam for violation of the Pearson test center rules .

41. Invalidation of Petitioner’s exam score for violation of the specified

test center rules, while not automatic, is certainly consistent with the aim of

preventing an examinee from gaining an unfair advantage in test

administration.

R ECOMMENDATION

Bas ed on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Commissioner of Education issue a final order

invalidating Petitioner’s FTCE Health K - 12 Examination due to his

violations of test center rules during the August 7, 201 9 administration of the

exam.

D ONE A ND E NTERED this 14th day of February , 2020, in Tallahassee, Leon

County, Florida.

S UZANNE V AN W YK

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 14th day of February , 2020 .

C OPIES F URNISHED :

Matthew B. Forrest

10743 Alden Road , Unit 4

Jacksonvil le, Florida 32246

Bonnie Ann Wilmot, Esquire

Department of Education

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Gavin Hollis Dunn, Esquire

Department of Education

325 West Gaines Street , Suite 1244

Tallahassee, Florida 32399 - 0400

(eServed)

Chris Emerson, Agency Clerk

Department of Educ ation

Turlington Building, Suite 1520

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner of Education

Department of Educ ation

Turlington Building, S uite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Educ ation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMI T E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.