COMMONWEALTH OF KENTUCKY EDUCATION AND WORKFORCE CABINET DEPARTMENT OF EDUCATION AGENCY CASE NO. 14-23 ADMINISTRATIVE ACTION NO. 14-EAHC-0315 DAVID MIKE, PETITIONER FINDINGS OF FACT, CONCLUSIONS OF LAW, v. AND FINAL ORDER NOTICE OF APPEAL RIGHTS JEFFERSON COUNTY SCHOOLS. RESPONDENT. An administrative Tribunal was held in this matter on December 9, 10, and 12, 2014, at the Administrative Offices of the Jefferson County Public Schools, VanHoose Education Center, 3332 Newburg Road, Louisville, Kentucky, The Petitioner, David Mike, was present and was represented by William J. Walsh, Buchenberger Walsh PLLC. The Respondent, Jefferson County Public Schools, was represented by Byron Leet, Wyatt Tarrant & Combs LLP, and Rosemary Miller, Jefferson County Schools. Donna Hargens, Superintendent of Jefferson County Schools, was the Schools” representative, The Tribunal members, who were accepted without objection after voir dite, consisted of Jill Kaiser, a teacher from Lexington, Kentucky, Betty Pace, an administrator from Winchester, Kentucky; and Beverly Standifer, a lay person ftom Frankfort, Kentucky. The Heating Officer was Susan S. Durant. The heating was public, ‘The following witnesses testified: Patsy Kenner, Executive Staff Adviser, Kentucky Department of Education; Erica Thompson, Specialist Il, District Assessment Coordinator (DAC), Jefferson County Public Schools (JCPS); Craig Klingenfus, Goal Clarity Coach, Louisville Male High School (LMHS); Jill Crutcher, School Counselor LMHS; Ronald Newman,Business Department Chair and School Technical Coordinator, LMHS; Sarah Graziano Portman, Math Teacher, LMHS; Lauren Schanz, June 2014 Graduate of LMHS; Josh Poore, Social Studies Teacher, LMHS; William Todd Barber, Assistant Principal, LMHS; Jeanine Ritey, JCPS ‘Compliance and Investigation Investigator; Paige Hartstern, Area Assistant Superintendent, JCPS; Donna Hargens, Superintendent, JCPS; Joe Burks, retired Assistant Superintendent, JCPS; Stacey Schoen Social Studies Teacher, LMHS; Matthew Waldrop, Social Studies Teacher LMHS; David Mike, Principal, LMHS; and Artie Dietz, Jefferson County High School Assistant Principal. Approximately 29 exhibits were placed into the record during the hearing. All of the Respondent’s exhibits were attachments or attachments to attachments to the termination letter of October 28, 2014, which was tabbed #1 in the combined binder of exhibits, The Petitioner's exhibits were tabbed numerically, but many of the numbers were removed from the final binder ‘because the exhibits were not introduced. The Tribunal’s Findings and Conclusions were written without the aid of a transcript because of the statutory deadline. FINDINGS OF FACT 1, Inthe summer of 2013, David Mike became the Principal of Louisville Male High School. In 1995, Mike had begun his career in the Jefferson County Public Schools as a teacher. In approximately 2000, Mike became an Assistant Principal at Seneca High School. ‘Then he was recruited to serve as Principal at Kennedy Metro School from 2005-2008. From 2008-2013 Mike ‘was the Principal at Westem High School. In 2013, he was named the Prineipal at LMHS. 2. Aswith all high schools in Kentucky, assessment tests are significant tools to measure the progress of students, of individual schools, and of the Commonwealth. In the second week of September, 2013, Mike and a large number of faculty and staff members at LMHSsigned that they had “received, read, and will comply with” the Administrative Code for Kentucky's Educational Assessment Program, 703 KAR 5:080, for the school year 2013-2014. Exhibit 1, attachment G, attachment H to attachment G, Hereinafter cited as Ex.__(_). ‘The following provisions are included within 703 KAR 5:080: Activities that are created or implemented for the sole purpose of increasing test scores and do not contribute to the student's overall education are considered in violation of this regulation. Student Ownership: All assessment work shall be done entirely by the student, During testing, test administrators or proctors shall not engage in any behavior that would assist the students in understanding or responding to any item on the test. Ex. IF. 3. On September 24, 2013, the ACT Plan test was administered at LMHS. Cynthia Sullivan, who was the LMHS Building Assessment Coordinator (BAC), oversaw the administration of the test. Principal Mike thought that the administration of the test was inept. ‘Therefore, Mike named Deborah Greenberg to oversee the upcoming ACT Compass assessment tests, Ex. 1G, Greenberg and Mike had become close associates around 2000 while Mike was Assistant Principal at Seneca High School. Thereafter, Greenberg had followed Mike to Kennedy Metro, Western, and Male, Mike referred to Greenberg as his right arm. Sullivan remained BAC inname only. 4. Also in late September, 2013, Artie Dietz, an Assistant Principal at Jefferson ‘County High School, came over to LMHS and gave a presentation to the high school’s Instructional Leadership Team (ILT) about ACT Compass 3.2. Dietz testified that Jefferson County High School had been using ACT Compass 3.2 since 2006 to help predict if students were ready for dual credit college programs. The test is a placement test, He thought that anotherlocation where students could take the test would be useful for students interested in dual credit classes. LMHS’s ILT thought that the ACT Compass 3.2 test seemed like a good idea for LMHS. Mike approved the installation of the test and it was installed on October 24, 2014, 5. ACT Compass 3.2 was installed in Lab Room 108. It is a standalone test installed ‘through Windows. Also given in Lab Room 108 was the ACT Compass test which is “an untimed computer-adaptive placement test that helps educators quickly evaluate students’ skill levels in Reading, Writing Skills (English), and Mathematics.” It is designed so that students can ‘be placed in appropriate college credit-bearing courses. Ex. 1F. The regular ACT test which is given to 11" grade students was not the subject of this action. The ACT Compass test is given to 12 grade students who had not yet met the state’s benchmarks in reading, writing, and math, Students may take the ACT Compass test twice with a minimum of five instructional days between tests. 6. Thus, in the fall of 2013 at LMHS, the ACT Compass intemet test and the ACT Compass 3.2 Windows test were both available on computers in Lab Room 108- the internet test was in the back of the room and the Windows test was in the front of the room. Apparently no one at LMHS in the fall of 2013 realized that the Windows test and the internet test shared some of the same questions. The shared questions were referred to as “live” questions because they ‘were in a data bank of items that could be used again. 7. A major aspect of this disciplinary action is that once Compass 3.2 was installed, LMHS began using that test as a “practice” test for the ACT Compass intemet test, certainly not the purpose for which 3.2 was intended. Greenberg oversaw the scheduling of testing activities, recorded the scores of the test-takers, set the desired achievement level, and served as a proctor in Room 108. As a “practice test,” a student was allowed to take the test multiple times until thestudent reached a proficiency level 10 points above the passing score for the ACT Compass test. Ronald Newman, Business Department Chair and School Technical Coordinator, testified that the testing room was unorganized, loud, confusing, and there was constant talking, Craig Klingenfuus, Goal Clarity Coach, testified that he took a portion of the ACT Compass test as a ‘rial run and found that Greenberg and Rhonda Branch, another Counselor and frequent test proctor, were talking so loudly that he could not concentrate, The room was noisy and chaotic, Students were asked to help other students take the “practice” test. Sarah Graziano Portman, a first year math teacher, was assigned to help tutor students so that they could pass the ACT Compass test. Students brought notebooks with problems from the “practice” test for help and she eventually went to the lab to help students on the “practice” test. Klingenfus heard reports that Greenberg was giving help to students who were taking the intemet ACT Compass test. In general, the atmosphere was such that it was difficult to tell who was taking the “practice” 3.2 test and who was taking the ACT Compass test. 8. David Mike testified that he was an active Principal and was out and about in the high school constantly. He testified that he walked through Room 108 about a half dozen times and saw nothing amiss. Jill Crutcher, School Counselor, testified that she was in the Lab helping proctor about six times and Mike came through the room each time. Newman had also seen Mike talking to a student who was taking a test in Room 108, 9. Then, on December 6, 2013, ACT investigative staff reported to the Kentucky Department of Education (KDE) that it had received two hotline reports of students’ receiving impemnissible help on ACT tests at Louisville Male High School. Thus on December 9, 2013, Carl Christiansen, an Investigator for ACT, and Patsy Kenner, an Executive Staff Advisor with KDE, who investigates testing allegations statewide, appeared at LMHS, to begin a jointinvestigation by interviewing staff. On December 11, Erica Thompson, a Specialist IIL, who specializes in testing and assessment for JCHS, along with a data management specialist for ICHS, joined the investigation, More staff was interviewed at the high school and some students ‘were called out of class and escorted to interviews by Mike. 10. On February 21,2014, ACT conducted a conference call and followed up with a letter to David Mike detailing the results of its investigation. Ex. 1C. The letter began by ‘emphasizing that: “It is important that ACT’s assessments be administered and handled in a ‘manner that protects both the validity of the resulting scores as well as ACT’s intellectual ‘property rights.” The letter continued by saying that its investigation had concluded that students hhad copied items from the ACT Compass 3.2 Windows test and LMHS teachers had helped the students answer the copied items. Further, teachers and students had helped students who were actually taking the Compass 3.2 test and the Compass 3.2 test was taken multiple times by the same students as a “practice” test. Finally, the letter set out an eight-point list of actions to be taken by Mike and LMHS. Among those requirements were uninstalling ACT Compass 3.2 ‘Windows version and firm reminders to students and faculty at LMHS about proper standardized test taking conduct. Greenberg, Branch, and Sullivan were not to administer any more ACT products without the prior written permission of ACT. Included in the action list was the followis All notes taken by either LMHS students or staff that contain portions of ACT Compass ‘questions, response choices, or solutions to ACT Compass questions must be collected and returned to us via secure courier. 11. David Mike quickly and efficiently undertook the actions required by ACT. Mike and other teachers took training in regard to giving standardized tests. The Administrative Code for Kentucky’s Educational Assessment Program, 703 KAR 5:080, and a elass on Copyrightprotection were given. Also KDE Compass Proctot training was given. Because the fall ACT ‘Compass tests were invalidated, another round of ACT Compass testing was given at Male High School in the spring. 12, Also, in the spring of 2014, Mike began reshaping LMHS toward his own vision, As a result of student population predictions, teacher observations, budget concerns, and future goals, Mike urged the Site Based Decision Making counsel for the school to begin overstaffing the faculty. Apparently it was typical for four or five faculty members to be downsized every year. Then, when the actual numbers for enrollment came in, the teachers could be rehired. In March and April, 2014, however, Mike overstaffed 1 science, 3 social studies, 1 Spanish, and 1 Physical Education teacher. He also overstaffed 2 Counselors, 1 Clerk, and 1 Assistant Principal. ‘The overstaffing caused an uproar among faculty and students. The school became split into those who were pro-Mike and those who identified themselves as pro-Male High School. Social media postings were explosive, bitter, meanspirited, and anonymous. 13. By late February the ACT investigation seemed to have been completed, but after the overstaffing a new investigation flared up, In December there had been rumors, complaints, and grousing about the ACT Compass test taking environment and who had helped whom, but, after the overstaffing students wrote up allegations of cheating, These written and sometimes signed allegations from students were passed on to Josh Pore, a Social Studies teacher, who had been overstaffed, who passed them on to Todd Barber, an Assistant Principal, who had also been overstaffed. Barber then contacted Christensen and told him that the ACT had been “duped” in the first investigation because Mike had “redirected” the students’ views before they spoke to the investigators. The ‘ibunal found that although the overstaffing caused the reinvigoration of the ACT investigation, there was no evidence that any student was urged to lie or did ultimately lieiin order to retaliate against Mike. 14. After overstaffing flared up, Sarah Graziano Portman read an article online about the December ACT investigation. As part of that article, there was a link to the February 21, 2014, letter from the ACT to Mike. Reading that the letter to Mike required him to collect all notes that contained ACT questions or responses, Portman realized that she had a locked cabinet with student notebooks containing ACT Compass 3.2 problems. Portman went to Mike and asked him what to do with the notebooks. He told her to put them in a bag and take them home and then get rid of them a few at a time. Portman did not respond to Mike. Having been told that the ACT would be back, Portman gave the notebooks to Christiansen when he returned, 15. On May 7, 2014, Christiansen for the ACT and Kenner for the KDE returned to LMHS to investigate the more recent information, Not only had Barber contacted Christiansen, but the Kentucky Education Professional Standards Board (KEPSB) and a JCPS Board member +had received additional allegations, During the May 7 investigation, Erica Thompson, the Jefferson County District Assessment Coordinator, escorted students to the interviews. 16. On June 19, 2014, the ACT sent a letter to David Mike containing its final decision in regard to ACT's investigation at LMHS. The letter informed Mike that “you are no longer authorized to access, administer, or oversee the administration of tests for any ACT- owned or branded products, unless ACT has given written permission.” Ex. 1D. Asa result of the ACT letter on June 19, on June 20, 2014, Mike received a letter saying that he was temporarily reassigned from his duties at LMHS to Student Assignment located at the VanHoose Education Center. Ex. 1E. 17. Then on July 3, 2014, as a result of Patsy Kenner’s participation in the investigation with ACT, a Kentucky Assessment Allegation Report was issued for the KDE. Thereport contained lengthy investigative findings-many of which dealt with the chaotic situation in ‘Room 108 and the improper use of ACT Compass 3.2 as a “practice” test. Also the Report contained findings in regard to Mike’s and Greenberg’s coaching persons who were to be interviewed during the December visit of ACT and KDE-a topic that would be dealt with specifically in a later report for JCPS. 18. The Kentucky Assessment Allegation Report found seven enumerated violations of the Administrative Code for Kentucky’s Educational Assessment Program, 703 KAR 5:080. ‘Many of these violations echoed the initial ACT conclusions. Those violations centered around the findings that the Compass 3.2 test was taken primarily in order to increase ACT Compass test scores rather than to improve overall education. Students taking the test were given help by other students and by teachers. Students were directed to take notes from the “practice” test back to teachers for additional help, Students took the “practice” test repeatedly until they reached a predetermined score. Students took the “practice” test and the ACT Compass on the same day. Also, the staff did not participate in the training updates for Compass assessment before the tests, ‘were given in the fall of 2013. 19. The Report recommended that the names of Debbie Greenberg, David Mike, and Rhonda Branch be forwanded to the KEPSB as required by statute. Those same individuals should no longer have any involvement with any ACT product. And they should receive ethies ‘raining. 20. The final investigation in regard to ACT testing at LMHS began on July 25, 2014, at the request of Donna Hargens, Superintendent, JCPS. The report was submitted on September 8, 2014, The primary investigators were Jeanine Riley and Stacie Jackson, Compliance and Investigations, JCPS. ‘The primary issue of the investigation as far as the‘Tribunal hearing was concemed was whether “David Mike impeded the investigative process and compromised the integrity of the ACT Compass Assessment investigation.” Ex. 1G. The Compliance and Investigation Report found that the allegation of investigation interference was inconclusive because the contact between Mike and individuals who were to be interviewed by ACT/KDE was one-on-one. 21. However, the report did substantiate that Mike told Graziano Portman to get rid of ‘the student notebooks in her possession rather than turn them over to Christiansen for ACT. Graziano Portman also testified that Greenberg pulled her out of her class where she was being observed for KTIP to remind her that Portman only tutored students on the “practice” test and not for the actual ACT Compass. Mike repeated the same reminder as he was escorting her down for her ACT investigation interview. When Graziano Portman described her encounter with Greenberg to Klingenfus, he felt that Graziano Portman definitely regarded it as coaching. Crutcher also testified that Mike approached her before the Counselor was to be interviewed by the ACT/KDE. He emphasized to her that nobody cheated on the ACT Compass, Crutcher said that the conversation left her intimidated and upset. 22. On May 5, 2014, Lauren Schanz, who was a Senior at LMHS at the time, wrote a statement for the investigation saying Mike had told her to “make him sound good,” as he was escorting her down for her ACT/KDE interview in December. Ex. 1G(M). Schanz’s statement also said that Mike helped students cheat, In her July/August interview with Riley and Jackson, Schanz seid that Greenberg had helped her on the ACT Compass test, but she did not state that Mike helped her. She did not say that Mike told her to lie to the interviewers, but when he said to make him look good, she thought that was what he was implying, Ex. 1G. The Tribunal found that the fact that Schanz recanted her early statement that Mike helped her on the test affected her 10