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Georgia Professional Standards Commission v. Lee

Court of Appeals of Georgia

July 13, 2015


Teaching certificate. Richmond Superior Court. Before Judge Annis.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, Allen I. Lightcap, Assistant Attorney General, for appellant.

John R. B. Long, for appellee.


Page 548

Barnes, Presiding Judge.

The Georgia Professional Standards Commission (PSC) appeals the superior court's order reversing on due process grounds the suspension of Clarissa Lee's teaching certificate. The PSC contends that the court erred because Lee suffered no violation of a cognizable due process right when the administrative law judge (ALJ) hearing her case exercised discretion and declined to hold the record open to obtain additional evidence after Lee's subpoenaed witnesses failed to appear. The PSC further argues that even if the ALJ erred, the superior court should have remanded the case for further proceedings rather than simply have reversed the ALJ's decision. Because we cannot determine from the superior court's order whether it intended to remand the case to the Office of State Administrative Hearings (OSAH) for further proceedings or to reverse it entirely, we vacate the order and remand the case for clarification of the court's order.

Lee was a fifth-grade teacher who proctored a Criterion-Referenced Competency Test (CRCT) science test in April 2010. After the test, another teacher told the school principal that some of her students were saying that Lee " gave some answers on the test." The principal retrieved seven students, sat them in every other seat around a big table in the instructional coach's room, and told them " to write down anything they had seen or heard that they thought might be inappropriate during the test." The principal then left the students with the coach to call her executive director for further instructions.

Page 549

[333 Ga.App. 61] Meanwhile, the CRCT testing coordinator, who had been present in the principal's office when the report of irregularities was made, was obligated to report the issue to her supervisor. The coordinator submitted a " Testing Irregularities Documentation Form," which indicates that statements from seven students were attached when submitted, although it is difficult to tell from the record or hearing transcript whether the brief written statements in the record are the ones the students wrote on test day. Four children said either Lee told them to check specific answers or they heard her tell someone else to check her answers. On the documentation form submitted by the testing coordinator is a note indicating that Lee did not sign it because the principal asked the coordinator not to show it to Lee.

In response to a request from an investigator assigned to the former Internal Affairs Department of the Professional Standards Commission, the testing coordinator reviewed the test booklets and answer sheets of four students who made statements and found no erasures. The coordinator reported that the students had identical questions and answers on the page that contained the question that Lee was accused of helping with (the children apparently are not given the exact same test in the exact same order of questions), and three of them had answered the question incorrectly. One of those was the student who said Lee gave her the correct answer to that question. The coordinator also examined the overall number of erasures on the answer sheets of the entire class, and while most students had one or two erasures, they all involved different questions. She concluded, " There was nothing consistent about the erasures from student to student."

The Internal Affairs investigator interviewed multiple students about the allegations of impropriety during the CRCT testing, although he did not recall the substance of the interviews at the administrative hearing. He testified that the interviews would have been included in his full report, although no statements are attached to the report in the record. The investigator also interviewed Lee and described her at the administrative hearing as being " very forthright" and in his opinion was not attempting to conceal anything. In his report, the investigator noted that one student, C. R., insisted that Lee gave her the correct answer, but while the students seated around C. R. heard Lee say something to C. R. they were not sure what was said. The investigator said the students agreed that Lee was leaning over each student as she patrolled the aisles, telling him or her to check their answer sheets and occasionally pointing to a particular answer or part of the test to be checked.

A compliance investigator with the Educator Ethics Division of the PSC investigated the alleged CRCT violations and interviewed [333 Ga.App. 62] the HR director, the testing coordinator, the principal, and the system investigator. She read the students' statements, and although Lee through her attorney asked to speak with her, the investigator never interviewed Lee, relying instead on a written statement from Lee that her attorney sent to the investigator. The PSC sent Lee a letter of suspension dated November 18, 2010, notifying her of the PSC's recommendation that she be sanctioned by suspending her teaching certificate for a year. That letter is not in the record either. On December 3, 2010, Lee notified the PSC that she sought a hearing before an ALJ and written notice of the causes for her suspension.

About 17 months later, in May 2012, the PSC finally asked OSAH to schedule a hearing on Lee's request. The hearing was initially scheduled for July 2012, then reset to August 2012 upon the request of the PSC because one of its witnesses had scheduled a vacation during that time. Lee's counsel moved to reset the hearing again due to a CLE panel conflict but the ALJ denied the motion. Both parties served multiple witness subpoenas, and the hearing was held on August 13, 2012.

At the hearing, Lee testified and denied providing any assistance to students during the CRCT in April 2010, noting that one of the students who accused her of supplying the correct answer to a question became upset with Lee because Lee would not let the student leave ...

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