Cotman v. Williamson

• Decision Date: 11 August 2017
• Docket Number: A17A1050, A17A1051.
• Citation: 804 S.E.2d 672
• Parties: COTMAN v. The STATE. Williamson v. The State.
• Court: Georgia Court of Appeals

342 Ga.App. 569

804 S.E.2d 672

COTMAN

v.The STATE.

Williamson

v.The State.

A17A1050, A17A1051.

Court of Appeals of Georgia.

August 11, 2017

Benjamin A. Davis Jr., Atlanta, for Appellant in A17A1050.

Gerald Ashland Griggs, for Appellant in A17A1051.

Paul L. Howard Jr., Atlanta, Linda Jeanne Dunikoski, for Appellee in A17A1050 and A17A1051.

Fani Taifa Willis, for Appellee in A17A1051.

Dillard, Chief Judge.

In 2010, Governor Sonny Perdue ordered a special investigation into the nearly decade-long suspicions that administrators, principals, and teachers in the Atlanta Public Schools System ("APS") had engaged in widespread cheating on standardized tests used to assess the progress of elementary and middle-school students in Georgia. After the conclusion of that investigation, the State indicted thirty-five APS administrators, principals, and teachers for crimes ranging from altering State documents, providing false statements to law-enforcement officials, and conspiring to violate the Georgia Racketeer Influenced and Corrupt Organizations ("RICO") Act. Ultimately, the State jointly tried 12 defendants, including School Reform Team Executive Director Tamara Cotman and elementary school teacher Angela Williamson. Then, following a six-month trial, a jury convicted 11 of the defendants, specifically convicting Cotman and Williamson of conspiring to violate RICO and also convicting Williamson on two counts of making false writings and two counts of false swearing.

In separate appeals, which we have consolidated for review at the parties' request, Cotman and Williamson contend that the trial court erred by instructing the jury that it could find that they violated either of the two subsections of the RICO statute despite the indictment charging the violation in the conjunctive, failing to find that this instruction created a fatal variance, and sentencing the defendants under the RICO statute rather than the general conspiracy statute. Cotman further contends that the trial court erred in denying her plea in bar of double jeopardy. Nevertheless, for the reasons set forth infra , we affirm the convictions of both Cotman and Williamson.

APS, Academic Targets, and Adequate Yearly Progress

Viewed in the light most favorable to the jury's verdict,¹ the record shows that on July 1, 1999, Dr. Beverly Hall became the superintendent of Atlanta Public Schools. Dr. Hall's administrative staff included Sharon Pitts (who worked as Hall's Chief of Staff), Colinda Howard (who oversaw the Office of Internal Resolution ("OIR") and was tasked with investigating employee misconduct), Millicent Few (who worked as the APS Director of Human Resources), and Veleter Mazyck (legal counsel). Additionally, under Dr. Hall, APS was organized into four School Reform Teams ("SRT"), which were specific geographic regions of metropolitan Atlanta and more specifically the elementary and middle schools within those regions. During Dr. Hall's tenure, Tamara Cotman served as the Executive Director of SRT–4, and as with all of the directors, her responsibilities included providing supervisory guidance to the principals and schools within her region.

Immediately after Dr. Hall was hired as superintendent, she began working with professional education consultants to devise a means by which to measure and improve APS students' academic progress. Then, after those consultations, Dr. Hall established a system requiring students at all APS elementary and middle schools to be tested so as to determine the numbers of students who "met academic expectations" and the numbers who "exceeded" such expectations. Importantly, every school in APS was required to meet a "Target" number—i.e. , a percentage of students in both of these categories, and Dr. Hall mandated that these Target numbers be raised every year.

In January 2002, around the same time that Dr. Hall began implementing her Targets system for APS, the federal government enacted the No Child Left Behind Act of 2001. Under this legislation, the State of Georgia received federal funding to assist low-income school districts and, inter alia, was required to report whether its schools were making what was termed "Adequate Yearly Progress" ("AYP"), which was measured by students' performance on the annually administered Criterion–Referenced Competency Test ("CRCT"). Schools failing to achieve AYP received additional federal funding to assist teachers and struggling students.

Although inextricably linked, the Targets established by Dr. Hall were separate from the requirements for AYP and, in fact, were more stringent. But in addition to the stated objective of being a means by which to measure students' academic progress during Dr. Hall's tenure, Targets quickly became the primary means by which to measure teachers and administrators' performance. For instance, the SRT Executive Directors, including Cotman, received salary raises if their schools made Targets and AYP, and employees at individual schools would similarly receive bonuses if their schools achieved their Target numbers. Indeed, Dr. Hall's own employment contracts also provided significant salary bonuses that were contingent upon APS achieving its academic progress Targets.

The failure to make Targets, however, often resulted in negative consequences for APS employees. Specifically, teachers and administrators whose students and schools failed to meet Targets could be demoted (resulting in a decreased salary), transferred (also resulting in a decreased salary), or placed on what was termed a Professional Development Plan ("PDP"), which was often a precursor to the termination of one's employment contract with APS. Unsurprisingly, the pressure placed on administrators and teachers to make Targets became intense and was exacerbated by the fact that many at APS believed the Targets to be patently unreasonable. Despite such concerns, Dr. Hall was uncompromising in her stance that Targets be met, informing one principal upon his termination for failing to meet Targets, despite his school's academic progress, that she "had no time for incremental gains."

Evidence of Cheating Throughout APS

Within a few years of Dr. Hall's hiring as APS superintendent, large improvements in APS students' test scores led to suspicions that such gains may have been the result of cheating. Initially, little in the way of concrete evidence demonstrated widespread abuses. But in March 2005, a teacher at Parks Middle School informed the Executive Director of SRT–2 that the newly hired principal was explicitly promoting cheating on the CRCT. And when it appeared that the Director would not be taking any action, the teacher sent anonymous letters directly to Dr. Hall to inform her of what was taking place at the school. Shortly thereafter, the SRT–2 Director attended a staff meeting at Parks Middle School, acknowledged the anonymous letters, but ordered that they cease, stating that the principal had the backing of Dr. Hall and would not be leaving. Nevertheless, APS directed Reginald Dukes, a private investigator who had worked with APS in the past, to investigate the allegations. On June 30, 2006, after interviewing teachers, including the teacher who first reported the issue, Dukes submitted a report to Dr. Hall, in which he concluded that cheating had occurred at Parks Middle School. But Dr. Hall took no action as a result of the report, and APS never hired Dukes again.

In July 2008, a summer re-test of the CRCT for students from several different APS schools was conducted at Deerwood Academy. During that re-test, several teachers collaborated to erase students' incorrect answers and change them to the correct ones, and as a result, Deerwood met its AYP target for that year. A few months later, in October 2008, Kathleen Mathers became the executive director of the Governor's Office of Student Achievement ("GOSA"), an agency tasked with providing data analysis on various education programs in the State. And in reviewing data related to the CRCT, Mathers noticed abnormally dramatic increases in student achievement within

APS, including at Deerwood Academy, in comparison to scores statewide. In addition, her office and the Assessment Division of the Georgia Department of Education were receiving numerous anonymous complaints from parents and teachers of cheating at APS schools. Around this same time, the Atlanta Journal Constitution ("AJC") published an article regarding the unusual gains in test scores within APS, in which they quoted an expert in the field of psychometrics,² who stated that the gains were as "extraordinary as a snowstorm in July" and warranted further investigation.

Based on her own suspicions and the AJC's article, Mathers decided to conduct a statewide erasure analysis on all of the 2008 CRCT summer re-tests. In essence, such an analysis entailed scanning the tests with an Optical Mark Recognition machine that determines if answer bubbles, in addition to the one ultimately filled, also contain residual amounts of pencil graphite, indicating that the bubble had been filled but later erased. The analysis was completed in April 2009, and based on the results, which showed that 11 Deerwood students had significantly high instances of erasing a wrong answer and changing it to a correct one (i.e. , wrong-to-right erasures), as well as an additional investigation, GOSA concluded that cheating had occurred at Deerwood Academy during the 2008 summer re-test. Thereafter, Mathers attempted to schedule a meeting with Dr. Hall to discuss the erasure analysis, but after being unable to do so, she had a copy of the report hand-delivered to Dr. Hall at a local conference the superintendent was attending.

On June 23, 2009, Mathers met with APS OIR director Howard and Penn Payne, an external investigator, who APS hired to look into the cheating allegations, and informed them of GOSA's findings. Following this meeting, on July 6, 2009, Dr. Hall emailed Mathers to inform her that APS and Payne had...