KENTUCKY EDUCATION PROFESSIONAL STANDARDS BOARD v. SUE P. GAMBREL AND GEORGE W. THOMPSON and GEORGE W. THOMPSON v. KENTUCKY EDUCATION PROFESSIONAL STANDARDS BOARD
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RENDERED:
June 7, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002912-MR
KENTUCKY EDUCATION PROFESSIONAL
STANDARDS BOARD
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 99-CI-00667
SUE P. GAMBREL AND
GEORGE W. THOMPSON
AND
APPELLEES
NO. 2000-CA-002925-MR
GEORGE W. THOMPSON
v.
CROSS-APPELLANT
CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM
ACTION NO. 99-CI-00667
KENTUCKY EDUCATION PROFESSIONAL
STANDARDS BOARD
CROSS-APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal and cross-appeal from a
judgment of the Franklin Circuit Court affirming in part and
reversing in part a decision of the Education Professional
Standards Board (“EPSB”) which found that a secondary supervisor
and high school principal had violated KRS 161.120 and other
regulations when they failed to follow KIRIS appropriate
assessment practices in administering the school’s 1996 KIRIS
test.
Upon review of the arguments on appeal and cross-appeal,
we affirm those portions of the judgment which upheld the EPSB’s
decision and reverse those portions which overturned that
decision, effectively reinstating the EPSB’s order in full.
This case arises out of the March, 1996 Kentucky
Instructional Results Information System (KIRIS) testing at Bell
County High School.
At that time, appellee, Sue Gambrel, was
Bell County Schools’ secondary supervisor, with an office at Bell
County High School (BCHS), and appellee/cross-appellant, George
Thompson, was principal of BCHS.
The KIRIS test was used to
assess the progress of learning in each public school in
Kentucky.
Schools that did poorly on the test could be
sanctioned, while employees of schools that did well were
eligible for cash awards.
On March 12, 1996, the Assistant Superintendent of the
Bell County Schools received two phone calls from Bell County
School employees alleging that individuals were cheating in the
course of administering the KIRIS test.
The Assistant
Superintendent immediately reported the allegations to Pearl Ray
Lefevers, Superintendent of Bell County Schools, who began an
investigation of the matter.
The results of that investigation
were forwarded to the Kentucky Department of Education (KDE),
Office of Curriculum Assessment and Accountability.
Thereafter,
KDE’s Division of Management Assistance followed up with its own
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investigation which revealed that violations of appropriate
testing practices did occur during the March, 1996 testing at
BCHS.1
As a result of the violations, the Kentucky Education
Professional Standards Board (EPSB) charged Gambrel and Thompson
with eight separate counts of misconduct in office, willful
neglect of duty and incompetency pursuant to KRS 161.120(1)(a),
and violations of 704 KAR 20:680, which contains the Professional
Code of Ethics for Kentucky School Certified Personnel.
Specifically, the EPSB alleged:
a. Ms. Gambrel was the building coordinator
for the KIRIS assessment that took place in
March 1996 at Bell County High School, and in
that role she failed to effectively carry out
her responsibilities, as outlined in the
KIRIS Instruction Manual for Assessment
Coordinators.
b. Ms. Gambrel and Mr. Thompson knew of or
were responsible for inappropriate assessment
practices for the KIRIS assessment that took
place in March 1996 at Bell County High
School in the following areas:
* encouraging teachers to assist students in
understanding the KIRIS test questions in
violation of KIRIS Appropriate Assessment
Practices published by the Kentucky
Department of Education [limited to Mr.
Thompson];
* knowing of the use of a student
accountability scale created to encourage
student performance, which was an
inappropriate assessment practice;
* permitting and authorizing the
administration of the KIRIS tests to two Bell
1
As a result of the inappropriate testing practices, the KDE
assigned a “novice” performance rating to all content area
testing for all 11th grade students at BCHS for the 1995-1996
school year, which reduced the overall scores for Bell County
more than 5 points.
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County High School students in locations
other than the high school;
* scheduling extended-time testing in an
inappropriate manner;
* knowing that social studies teachers
reviewed the KIRIS social studies test prior
to testing and formulated a “bullet sheet” of
critical content about the test; and
* knowing of the use of materials during the
testing that were not allowed to be used
pursuant to the KIRIS test instructions
[limited to Ms. Gambrel].
c. Mr. Thompson failed to exercise the
appropriate leadership in preparing his staff
at Bell County High School to follow
appropriate assessment practices.
Specifically, Mr. Thompson is charged with
delegating the responsibility for
coordinating the KIRIS assessment at Bell
County High School and then failing to
effectively monitor and supervise that
delegation of responsibility, the result
being that the Bell County High School staff
was not properly trained and provided
guidance for test administration.
The EPSB also filed charges against eighteen (18) other
BCHS teachers and Pat Bingham, the District Assessment
Coordinator for the Bell County Schools.
were all settled.
However, these charges
Gambrel and Thompson refused to settle and
demanded a hearing on the charges.
The hearing on the charges against Gambrel and Thompson
was held on October 5-8, 1998.
On March 10, 1999, the hearing
officer for the EPSB issued her findings of fact, conclusions of
law, and recommended order.
She found that Gambrel and Thompson
were not guilty of the following three charges:
knowing about a
social studies “bullet sheet”; knowing of the use of prohibited
materials during the testing; and permitting the administration
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of tests in unauthorized locations.
She found that Gambrel and
Thompson did violate appropriate testing practices by encouraging
teachers to clarify test questions, allowing the use of the
student accountability scale, and inappropriately scheduling
extended testing time.
However, she specifically found that
neither Gambrel nor Thompson intentionally, knowingly or
purposely violated the KIRIS appropriate assessment practices
because, at the time, they were not aware that their acts
violated KIRIS appropriate assessment practices.
Hence, she
found, as a matter of law, that their actions did not constitute
a violation of 704 KAR 20:680, Section 1(3)(c)1. (maintaining the
dignity and integrity of the profession) or KRS 161.120(1)(a)
(misconduct, willful neglect of duty, incompetency, and violation
of state school laws.)
She further found that Gambrel was not
the building coordinator for the KIRIS assessment in March, 1996.
As to the charges against Thompson alone, the hearing officer
found that he was guilty of failing to exercise appropriate
leadership in delegating responsibility for the 1996 KIRIS tests,
but such failure in leadership did not constitute incompetency.
Also, she found that Thompson’s failure of leadership was not the
cause of the BCHS staff not being properly trained or provided
guidance for test administration.
On June 8, 1999, the EPSB issued its findings of fact,
conclusions of law, and final order.
In it, the EPSB agreed with
the hearing officer that Gambrel and Thompson were not guilty of
knowing about a social studies “bullet sheet,” knowing of the use
of prohibited materials during the testing, and permitting the
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administration of tests in unauthorized locations, and thus,
dismissed those charges.
However, the EPSB rejected the
recommendations of the hearing officer as to the remaining
charges.
Specifically, the EPSB found that Gambrel was the KIRIS
building coordinator for BCHS in 1996.
Further, although the
EPSB agreed with the hearing officer that Gambrel and Thompson
were guilty of encouraging teachers to clarify test questions,
allowing the use of the student accountability scale, and
inappropriately scheduling extended time testing, the EPSB
disagreed with the hearing officer’s conclusion that these
actions did not constitute misconduct, willful neglect or
incompetency pursuant to KRS 161.120(1)(a) or a violation of
state school regulation pursuant to 704 KAR 20:680, Section
1(3)(c)1. (maintaining the dignity and integrity of the
profession.)
Consequently, the EPSB suspended Gambrel’s teaching
certificate and endorsements for twelve months and Thompson’s for
eighteen months.
On appeal to the circuit court, Gambrel and Thompson
argued there was insufficient evidence that Gambrel was the
building coordinator for the school and that Thompson’s failure
to exercise appropriate leadership caused the BCHS staff to be
ill-prepared to administer the test.
They also argued that there
was insufficient evidence to find that they committed misconduct
in office, willful neglect or a violation of a state school law
or regulation pursuant to KRS 161.120(1)(a) because there was no
evidence that they specifically intended to violate the KIRIS
assessment practices.
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The circuit court affirmed in part the EPSB’s decision,
finding that Thompson’s failure in leadership resulted in the
BCHS staff being ill-prepared to administer the test.
The
circuit court also affirmed the EPSB’s conclusion that Thompson’s
violations of the assessment practices amounted to incompetency
and a violation of a regulation (704 KAR 20:680, Section
1(3)(c)1.) under KRS 161.120(1)(a).
The circuit court, however,
reversed the EPSB’s ruling that Gambrel’s and Thompson’s actions
rose to the level of misconduct or willful neglect.
The court
adjudged that, although Gambrel and Thompson did violate certain
of the appropriate KIRIS assessment practices, in order to find
them guilty of misconduct or willful neglect, the evidence had to
show that Gambrel and Thompson knew that the assessment practices
were prohibited and specifically intended to violate them.
The
circuit court also reversed the EPSB’s finding that Gambrel was
the building coordinator for BCHS, citing a lack of substantial
evidence thereof.
Finally, the circuit court reversed the EPSB’s
finding that Gambrel’s actions constituted incompetency and a
violation of 704 KAR 20:680, Section 1(3)(c)1.
Hence, the court
dismissed the charges and resulting sanctions against Gambrel.
As to Thompson, the court remanded the matter to the EPSB to
determine if the eighteen-month suspension was appropriate in
light of the charges that remained.
This appeal by the EPSB and
cross-appeal by Thompson followed.
The EPSB first argues that the circuit court erred in
adjudging that there was insufficient evidence that Gambrel was
the building coordinator for BCHS.
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The basic scope of judicial
review of an administrative action is concerned with the question
of arbitrariness.
590 (1982).
Kaelin v. City of Louisville, Ky., 643 S.W.2d
If there is substantial evidence in the record to
support an agency’s factual findings, the findings will be upheld
on appeal, even though there may be conflicting evidence.
Kentucky Commission on Human Rights v. Fraser, Ky., 625 S.W.2d
852 (1981).
In its role as finder of fact, an administrative
agency has great latitude in evaluating the evidence and judging
the credibility of the witnesses.
Aubrey v. Office of the
Attorney General, Ky. App., 994 S.W.2d 516 (1998).
questions of law are subject to de novo review.
However,
Palmore v.
Swiney, Ky. App., 807 S.W.2d 950 (1990).
The instruction manual for assessment coordinators of
the KIRIS states the following:
[T]he instructions in this manual and in the
Instruction Manual for Test Administrators
must be followed closely by district
assessment coordinators, building
coordinators/principals, and test
administrators. All assessment coordinators
should read and be familiar with the
instructions given in both this manual and in
the Instruction Manual for Test
Administrators. Test coordination
responsibilities are divided as outlined on
page 8 between the district assessment
coordinator and a building coordinator
(usually the principal or a guidance
counselor.) If no building coordinator is
appointed, then the district assessment
coordinator will assume the responsibilities
of both district assessment coordinator and
building coordinator.
According to the assessment coordinator instruction manual, the
district assessment coordinator (“DAC”) serves as the “liaison
between the KDE, Advanced Systems [the company that formulated
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the KIRIS test], building coordinators, and test administrators
(classroom teachers in most cases.)”
The DAC’s duties include
being a resource to the building coordinators and test
administrators, coordinating all test activities in the district,
and organizing and conducting building coordinator training
sessions.
The duties of the building coordinator (“BC”) are
listed in the assessment coordinator instruction manual as
follows:
* develops a testing schedule;
* distributes materials to test
administrators and meets with them to answer
any questions they may have;
* sees that testing procedures (including
guidelines for test modifications for special
education students) are followed;
* returns a completed Principal’s
Certification of Proper Test Administration
form; and
* collects and returns all test materials to
the district assessment coordinator.
It was undisputed that Pat Bingham was the DAC for Bell
County from 1992-1996.2
According to the evidence, it was the
policy of Bell County that a BC would be appointed after
consultation with the school principal and the DAC.
Apparently,
that policy was not followed at BCHS in the 1995-1996 school
year.
Bingham testified that she did not know that she had been
assigned BC for that year.
Thompson testified that he usually
delegated the duties of BC to the guidance counselors.
During
the 1995-1996 school year, the guidance counselors at BCHS were
Theresa Capps and Connie Williams.
2
There was evidence that in
Bingham was one of the individuals who was charged and
settled in this case. She agreed to a six-month suspension of
her certificate.
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the fall of 1995, Thompson had indicated to the Central Office
that Capps would be the BC.
However, after Christmas 1995,
Thompson expressed to Gambrel that he had doubts about whether
Capps and Williams could handle the duties of the BC since they
were new to BCHS and asked if she would help.
Gambrel agreed to
help, responding that she had a computer disc that contained all
of the information of the BC from the previous year’s KIRIS test.
At the hearing Thompson testified:
[And] that’s when I went to Sue [Gambrel] and
again, I don’t remember exactly how I said
it, but it was along the line of what Sue has
testified and you know, Sue, we’ve got a
pickle here, I need your help, can you do
this, and I knew that Sue had assisted Steve
Baker in the year before, do this thing, so
when I, when I said I need you to really work
on the schedule, help us right here, if I
recall correctly, I indicated that Theresa
and Connie would help, you know, they would
be working as a team is what I envisioned for
that to happen, that Theresa and Connie would
be working with Sue. I knew that Sue could
handle the, the scheduling. I had every, you
know, Sue was my go-to person when I, when
something had to be done, I would go to Sue
and I knew that she had every bit of
confidence in the world that she could pull
this thing together, organize this thing, and
with Connie and Theresa, both of them having
previous experience of administering the
KIRIS, I thought we was [sic] in good shape,
you know, but I knew that together, the two
(2) counselors, or I felt like they, based on
my observation and that’s what I do as
principal is observe a lot, that this would
be the best direction for us to go that
particular year.
During the investigation of the test violations,
Thompson indicated to Jim Jackson, one of the KDE’s
investigators, that Gambrel was the BC for BCHS, which was
consistent with his testimony above that she was his “go-to”
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person regarding the test.
Also the superintendent of the Bell
County schools, as well as the staff at BCHS, understood that
Thompson had assigned Gambrel to be the BC.
Capps and Williams
testified that Thompson never asked them to be the BC, although
Capps was placed in charge of make-up testing and performance
events testing and Williams was put in charge of extended-time
testing.
Both Capps and Williams identified Gambrel as the BC.
Gambrel herself ultimately conceded to Jackson during the
investigation that she was the BC.
It was undisputed that the 1996 test materials,
including the instruction manual for assessment coordinators and
the instruction manual for test administrators were delivered to
Gambrel’s office and that she prepared the test schedule and made
staff and room assignments.
Six days before the test, Gambrel
also conducted a meeting with teachers during which she
distributed test booklets, instruction manuals, the test
schedule, make-up information, and the student accountability
scale which will be discussed further below.
From our review of the evidence, there was substantial
evidence that Gambrel was the BC for BCHS in 1996.
Although the
title of BC may not have been officially bestowed upon her and
she may have shared some of the duties with Capps and Williams,
Gambrel performed the major duties of a BC, she was considered by
the principal and the teachers to be the BC, and she admitted to
an investigator from the KDE that she was the BC.
Accordingly,
the circuit court erroneously reversed the EPSB’s conclusion to
that effect and, thus, we reinstate that determination.
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EPSB next argues that the circuit court erred in
requiring a finding that Gambrel and Thompson specifically
intended to violate KIRIS appropriate assessment practices in
order to find them guilty of misconduct under KRS 161.120.
KRS
161.120(1)(a), as it existed in 1996, provided:
Any certificate issued under KRS 161.010 to
161.100, or any certificate or license issued
under any previous law to superintendents,
principals, teachers, supervisors, directors
of pupil personnel, or other administrative,
supervisory, or instructional employees may
be revoked by the Education Professional
Standards Board for immorality, misconduct in
office, incompetency, violation of the school
laws of the state or administrative
regulations adopted by the State Board for
Elementary and Secondary Education, willful
neglect of duty, . . .
Within the KIRIS assessment materials was an
appropriate assessment practices form which contained information
on permitted and prohibited practices in administering the KIRIS
test.
The assessment coordinator’s and administrator’s
instruction manuals also contained information about how the test
was to be administered and what was and was not allowed.
It is
undisputed that the following violations of appropriate
assessment practices occurred:
* Thompson encouraged teachers to assist
students in understanding the KIRIS test
questions.
* Gambrel and Thompson knew of the use of a
student accountability scale created to
encourage student performance.3
* Gambrel and Thompson scheduled extendedtime testing which gave students unmonitored
3
This was a scale devised by BCHS staff outside the
parameters of the appropriate KIRIS assessment practices which
gave points to students based on their effort, motivation, and
constructive use of time in completing the KIRIS test.
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breaks and allowed students to move,
unmonitored, to another testing area with
their test booklets.
The EPSB maintains that the above violations of the
appropriate assessment practices constituted misconduct under
KRS 161.120(1)(a).
While Gambrel and Thompson admit they are
guilty of the above violations of appropriate KIRIS assessment
practices, they insist that such conduct does not rise to the
level of misconduct because they did not specifically intend to
violate the assessment practices, which was the reasoning used by
the circuit court in reversing the EPSB’s decision on this issue.
Gambrel testified that she did not read the assessment
coordinator instruction manual, the test administrator
instruction manual, or the appropriate assessment practices form.
She claims that she delegated that duty to Capps and Williams,
telling them that she did not work in the area of assessment.
Therefore, she was unaware that the above testing practices were
prohibited.
Thompson testified that he had read both the
assessment coordinator and test administrator instruction manuals
and was familiar with the appropriate assessment practices form.
He maintained, however, that he in good faith believed that the
assessment practices in question were permissible according to
his interpretation of KIRIS assessment materials.
Unfortunately, there is no definition of “misconduct”
within KRS Chapter 161.
In Kentucky State Board of Education v.
Isenberg, Ky., 421 S.W.2d 81, 84 (1967), involving alleged
misconduct by school board members pursuant to KRS 156.132 and
156.134, the Court stated, “‘misconduct in office’ means to
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conduct amiss; bad behavior.”
The Court then went on to quote
from Gover v. Stovall, 237 Ky. 172, 35 S.W.2d 24, 26 (1931), as
follows:
The word (misconduct in office) has a broad
scope, and is more comprehensive than
“immoral conduct” or “immorality,” since the
acts composing them must necessarily be
immoral in nature. But conduct might not be
intrinsically immoral and yet be “misconduct”
as growing out of the status and social
relationship of the one engaged in it.
According to the text in 40 C.J. 1220, it is
defined as: “Bad behavior; improper conduct;
mismanagement; or wrong conduct, in usual
parlance, a transgression of some established
and definite rule of action, where no
discretion is left, except what necessity may
demand.”
Id.
In another case involving alleged misconduct by school board
members, our Supreme Court stated:
The lower court found “no evidence of any
willful, knowing, calculated or arrogant
disregard and disrespect for the local
Board’s obligations under KRS 162.160.”
Instead, the trial judge classified the
construction and occupation of the field
house without the prior approval that KRS
162.160 requires as “a shocked and
embarrassed realization by the local [school
board] officials that someone had fumbled the
ball.” The failure to abide by KRS 162.160
was characterized by the trial judge as
merely a “break down in communication.”
. . .
The trial judge conceded that the evidence of
appellees’ misconduct was true and correct;
however, he then found the appellees to have
been in substantial compliance with the
statutes. While substantial compliance may
be appropriate in regard to some areas of the
law, the test is quite inappropriately
applied in this given fact situation. There
is no basis for the use of the substantial
compliance test. Either the appellees did or
did not violate the statutes; and if they
did, they can, and must be removed.
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State Board for Elementary & Secondary Education v. Ball, Ky.,
847 S.W.2d 743, 749 (1993).
As to Gambrel, we have no problem agreeing with the
EPSB that her conduct constituted misconduct under KRS
161.120(1)(a).
She never bothered to read any of the instruction
manuals or the appropriate assessment practices form, instead
delegating the job and never following through to see that the
teachers were properly trained and testing procedures were
followed.4
Although Gambrel claims to have been unaware that she
was the BC and therefore did not believe that reading the manuals
was part of her job in seeing that testing procedures were
followed, her delegation of that duty demonstrates otherwise.
If
she had read the instruction manuals and the appropriate
assessment practices form, she, first, would have known that the
duties of the BC included seeing that the appropriate assessment
practices were followed and, secondly, that the testing practices
at issue were prohibited, as we shall discuss further below.
Gambrel cannot benefit from her ignorance.
See Freeman v.
Louisville and Jefferson County Planning and Zoning Commission,
Ky., 214 S.W.2d 582 (1948) (wherein it was held that ignorance of
the law is not a valid defense.)
Further, although Gambrel told
teachers to read the appropriate assessment practices form and
sign it, Gambrel never conducted or saw to it that any training
4
We are by no means saying that Gambrel could not delegate
certain of her duties as BC. However, when one delegates certain
functions of the job, it is axiomatic that the delegating
individual has a duty to follow through to see that those
functions are being carried out.
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session was held where the teachers were instructed on and able
to discuss the appropriate assessment practices.
We now address Thompson’s claim that he in good faith
believed the testing procedures at issue were not forbidden.
Under the heading “Test Administration” in the instruction manual
for test administrators, it states, “With the exception of
approved pre-existing modifications, you should not aid any
student in reading, understanding, or answering any of the test
questions.”
In the proctoring guide contained within the
appropriate assessment practices form, it states in pertinent
part:
Proctors for the KIRIS Transitional (Ondemand) Assessment are generally allowed to
maintain an atmosphere conducive to the
successful completion of the KIRIS
assessments so long as no information about
the content of answers is provided to the
students.
Under the heading, “Proctors cannot,” the proctoring guide states
in pertinent part:
* Read the questions to students (unless in
special cases as specified in the manual.)
* Answer questions related to the response
(no hints, restatements, reinterpretations,
rephrasing for clarification.) (emphasis
added.)
As to the appropriate assessment practice violation for
encouraging test administrators to help students understand the
test questions, we believe the above language clearly forbids
such conduct such that Thompson cannot legitimately claim that he
in good faith believed that helping students understand the
questions was permissible.
Further, common sense dictates that
if the test administrator cannot even read a question to the
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student, then he certainly cannot explain a question.
In his
testimony at the hearing, Thompson also attempted to justify his
belief by pointing out that helping students understand questions
had always been an accepted practice in years past at BCHS.
We
would note that this kind of thinking is what perpetuates
incompetent practices within our schools.
The same goes for Thompson’s and Gambrel’s knowledge of
the student accountability scale.
Among other things, the
student accountability scale gave points to students for asking
for assistance from test administrators during testing.
Hence,
allowing the use of the student accountability scale also
constituted misconduct under KRS 161.120(1)(a).
The violations regarding the extended-time testing stem
from the fact that students were permitted to have unmonitored
breaks and move unmonitored to other areas with their test
booklets.
The instruction manual for test administrators states
that “[s]tudents should not be allowed to discuss any portion of
the test during the break.”
Throughout the instruction manual
for test administrators, it emphasizes that after a portion of
the test has been completed, that all testing materials should be
collected and kept in a secure location.
In our view, Gambrel
and Thompson should have known from the above-stated provisions
that students should not have been allowed any opportunity to
discuss the test before that section of the test had been
completed and should not have been allowed to take test materials
from a testing area while unsupervised.
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Finally, there was evidence that certain teachers
approached Thompson during the testing and questioned the
practices of helping students understand test questions and
allowing students to move unmonitored to extended-time testing
areas with their test booklets.
It is undisputed that Thompson
essentially dismissed these concerns and allowed the practices to
continue.
In sum, there were definite rules regarding the KIRIS
testing procedures which left no room for discretion and of which
Gambrel and Thompson had a duty to be aware as the building
coordinator and principal of BCHS.
In our view, Gambrel’s
ignorance of these rules and Thompson’s failure to insure that
these rules were followed rose to the level of misconduct.
Accordingly, we reverse the circuit court’s determination that
Gambrel and Thompson were not guilty of misconduct under KRS
161.120(1)(a) and reinstate the EPSB’s finding to the contrary.
The EPSB’s final argument is that the circuit court
erred in reversing the EPSB’s determination that, pursuant to KRS
161.120(1)(a), Gambrel was guilty of incompetence and violating a
state school law or regulation.
The regulation which the EPSB
found Gambrel and Thompson in violation of is 704 KAR 20:680,
Section 1(3)(c) which provides:
Section 1. Certified Personnel in the
Commonwealth:
(3) Shall strive to uphold the
responsibilities of the education profession,
including the following obligations to
students, to parents, and to the education
profession:
(c) To the education profession:
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1. Shall exemplify behaviors which
maintain the dignity and integrity of the
profession.
The circuit court affirmed the EPSB’s finding of
incompetence and a violation of the above regulation as to
Thompson, but reversed the same finding as to Gambrel, stating
there was not substantial evidence thereof.
“Incompetency” has been defined as:
Of public officer: — the absence of a
physical, moral, or intellectual quality,
incapacitating one to perform the duties of
his office, characterized by gross neglect of
duty or gross carelessness in the performance
of duty, lack of judgment, and want of sound
discretion.
BALLENTINE’S LAW DICTIONARY 602 (3d ed. 1969).
For the same reason that we believe Gambrel was guilty
of misconduct under KRS 161.120(1)(a), we likewise believe that
Gambrel was guilty of incompetency and violating 704 KAR 20:680,
Section 1(3)(c)1.
Gambrel’s failure to read any of the KIRIS
instructional materials when she was the BC constituted, at the
very least, incompetency — gross neglect of duty, lack of
judgment, and want of sound discretion —
the integrity of her profession.
and was an affront to
Accordingly, we again reverse
the circuit court and reinstate the findings of incompetency and
a violation of a state school regulation as to Gambrel.
We now turn to the cross-appeal.
Thompson argues that
the circuit court erred in sustaining the charges of incompetency
against him under KRS 161.120(1)(a) and in finding there was
substantial evidence that he failed to exercise appropriate
leadership relative to the 1996 KIRIS test.
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We deem these two
arguments to be inextricably connected and, thus, will address
them as one.
Thompson insists that his education, clean past record,
dedication to his profession, and years of hard work preclude a
finding of incompetency in this case.
While those qualifications
are commendable, they do not negate Thompson’s acts of
malfeasance and nonfeasance as to the 1996 KIRIS test at BCHS.
For the same reasons Thompson was guilty of misconduct under KRS
161.120(1)(a), we agree with the EPSB and the circuit court that
Thompson’s conduct demonstrated incompetency — gross
carelessness, lack of judgment, and want of sound discretion.
As principal, Thompson had a duty to see that the KIRIS test was
properly administered.
In fact, at the conclusion of the test,
the principal must sign the Principal’s Certification of Proper
Test Administration attesting to that fact.
Although Thompson
claimed to have read the instruction manuals and to have been
familiar with the appropriate assessment practices, he
nevertheless allowed conduct which clearly was in violation of
the appropriate assessment practices.
Concerns over certain of
the violations were even brought to his attention during the
testing and he maintained that such practices were permissible
and allowed them to continue.
As with the finding of misconduct,
Thompson’s alleged good faith belief that the assessment
practices at issue were permissible does not preclude a finding
of incompetency.
Thompson, as an educated school administrator,
should have known from the instruction manuals and the
appropriate assessment practice form that the conduct at issue
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was prohibited, especially the practice of helping students
understand test questions which was expressly forbidden.
We also agree that Thompson’s conduct demonstrated a
failure in leadership regarding administration of the KIRIS test
which we believe was further evidence of incompetency.
First, if
Thompson had demonstrated appropriate leadership skills, there
would have been no question as to who the BC was.
Secondly, if
Thompson had followed through with his delegation of BC duties,
he would have known that all of the duties of the BC were not
being carried out — that no one was seeing to it that the test
administrators were being trained as to appropriate assessment
practices and that these assessment practices were being
followed.
Thompson’s remaining argument is that the circuit court
erred in upholding the EPSB’s finding that his conduct was a
violation of 704 KAR 20:680, Section 1(3)(c)1. as set out
earlier.
As the leader of the school, Thompson had an obligation
to see that the duties he delegated were fully and properly
performed.
We agree with the EPSB and the circuit court that
Thompson’s failure to follow up on the delegation of KIRIS
testing duties and the failure to insure that the staff was
properly trained as to the appropriate assessment practices was
behavior which did not maintain the integrity of his profession.
For the reasons stated above, the judgment of the
Franklin Circuit Court is affirmed in part and reversed in part
such that the final order of the EPSB is hereby reinstated in
full.
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ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEES/CROSSAPPELLANT:
Robert E. Stopher
Robert D. Bobrow
Louisville, Kentucky
JoEllen S. McComb
Mary E. Schoonover
Lexington, Kentucky
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