STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANN E. MacPHERSON, )
)
Petitioner, )
)
vs. ) CASE NO. 84-1170
) SCHOOL BOARD OF MONROE COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
The Final hearing in this case was held on March 4, 1985, in Key West, Florida. At issue in this case is whether the Respondent, the School Board of Monroe County, Florida, has good and sufficient reasons, pursuant to Section 231.36(4)(b), Fla. Stat., to return the Petitioner, Ms. Ann MacPherson, to annual contract.
Appearing for the parties were:
For Petitioner: Thomas W. Young, III, Esquire
General Counsel FEA/United
208 West Pensacola Street Tallahassee, Florida 32301
For Respondent: Michael Casey, III, Esquire
2 South Biscayne Boulevard, Suite 1800 Miami, Florida 33131
It is the conclusion of the Hearing Officer that good and sufficient reasons do mot exist in this record to support the Respondent's decision to return the Petitioner to annual contract.
FINDINGS OF FACT
The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for
19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School.
In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and
recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days.
During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction.
Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator.
During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket.
Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good.
By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability.
Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so.
In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of
field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher.
During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent
14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses.
Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions.
Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to
8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills.
One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had
had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr.
Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student.
In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984).
When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the
1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5.
At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was
improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the
1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year.
At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year.
In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition.
At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected.
At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein.
It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries.
During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from
school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave.
During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77.
Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class.
With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process.
Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept
was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript,
p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . .
." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence.
On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made.
Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation
performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience.
At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal.
In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory.
Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner.
Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner.
Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner.
Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6.
Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing.
Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class.
The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected.
At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6.
Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983.
The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While
13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point).
The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100).
Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187.
Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management.
Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99.
Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks).
At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87.
Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101.
In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time.
The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was
relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105.
Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner.
Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible.
Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice.
With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise.
Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id.
Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript,
p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year.
In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that
he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term.
Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34.
During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p.
189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health.
The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status.
The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately:
Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript.
The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum.
Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay.
Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations."
The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent.
With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance.
It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties of this proceeding pursuant to section 120.57(1), Fla. Stat. (1984).
The proposed agency action in this case was brought pursuant to section 231.36(4)(b), Fla. Stat. (1984), which provides that a member of the instructional staff of a school district who is on continuing contract may be "dismissed or returned to annual contract status" for "good and sufficient reasons."
Any change of continuing contract status, and practiclarly return to annual contract, is penal in nature and must be accomplished by following the proper statutory procedures of notice and hearing. Gainey v. School Board of Liberty County, 387 So. 2d 1023, 1030 (Fla. 1st DCA 1980). Since the proceeding
15 penal in nature, the statute governing the proceeding must be strictly construed, and ambiguities must be construed in favor of the employee. Id. at 1029.
Since the provisions of section 231.36, Fla. Stat. (1984) are penal in nature and the loss of pay (here caused by return to annual contract) is a serious penalty, the agency action must be supported by an "elevated" standard of competent substantial evidence. Smith v. School Board of Leon County, 405 So. 2d 183, 185-86 (Fla. 1st DCA 1981).
Section 231.36(4)(b), Fla. Stat. (1984) does not specifically state what kind of "good and sufficient reasons" justify return to annual contract. But the "good and sufficient reasons" standard also applies to dismissal, and
dismissals are governed by specifically enumerated standards which would constitute "good and sufficient reasons." See, e.g., section 231.36(4)(c), Fla. Stat. (1984). Thus, the statute contains an ambiguity as to whether the action of return to annual contract should be governed by the same specific standards for dismissal, or whether there are other "good and sufficient reasons" that would permit return to annual contract, but would not permit dismissal.
The only case that has been located by the Hearing Officer on this point is only marginally helpful. In Burns v. School Board of Palm Beach County, 283 So. 2d 873 (Fla. 4th DCA 1973) the school board sought to reduce the salary of an employee holding a continuing contract as a principal to the salary of the lower paying job to which he was actually assigned. The Court held that the salary reduction was void because the board failed to follow the procedures of sections 231.36(4) and (6), Fla. Stat. The Court first noted that salary reduction could only be accomplished by return of the employee to annual contract pursuant to section 231.36(4). 283 So. 2d at 875-76. Then the Court noted, without further comment, that the Board had failed to comply with both subsections (4) and (6) of section 231.36. Subsection (6) contained the specific grounds available to a school district to dismiss an employee, and are the same grounds available to dismiss instructional personnel contained in section 231.36(4)(c). The implication is that substantial alteration of a continuing contract must be based upon the same grounds as dismissal, but the point is not expressly made by the decision.
In the instant case, there are three reasons to look to the more specifically stated grounds for dismissals in order to evaluate whether good and sufficient reasons exist to return this Petitioner to annual contract. First, the Respondent appears to rely upon these standards to substantiate "good and sufficient reasons" in this specific case. See paragraphs X through XV, Respondent's proposed findings, of fact and conclusions of law. Other standards offered by the Respondent also correspond to dismissal standards. See paragraphs IV through IX and XVI, proposed findings of fact and conclusions of law. Secondly, since the return to annual contract is a substantial penalty involving loss of tenure and loss of pay, ambiguities in the statute must be construed in favor of the employee. And finally, the evidence in this case indicates that the Respondent has focused directly upon issues such as incompetence, inefficiency, and incapacity, which are the basis for dismissal pursuant to rule 6B-4.09, F.A.C., and also section 231.36(4)(c), Fla. Stat. (1984), at least with respect to incompetency. Further, the Respondent has stated that it plans to terminate the Petitioner's employment if it is not satisfied that she has improved. Thus, the intended result of the instant action, returning the Petitioner to annual contract is to ultimately sever the employment relationship based upon incompetence, if such is found to exist at the end of the annual contract. Since the result is the same as dismissal, and since the basis is the same basis that would justify dismissal, then it should follow that the standard for dismissal for incompetence, inefficiency, or incapacity should govern this particular case.
These proceedings are de novo in nature, and are intended to assist the agency in the formulation of final agency action. These proceedings are not intended to review the correctness of action taken on February 29, 1984, proposing to return the Petitioner to annual contract. Thus, evidence of circumstances as they exist at the time of the hearing is relevant to the formulation now of final agency action. McDonald v. Department of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977).
The record evidence does not support a finding that the Petitioner is currently lacking in physical capacity to perform her duties as an instructor. The only evidence of the Petitioner's current physical capacity is her own testimony, which has been accepted as true, that her feet have finally healed, that she has had no flare-ups or reinfections since October 1984, and that she will be physically capable of teaching in the fall of 1985. This testimony was supported by the hearsay evidence that her own doctor had stated that she was now healed. The Respondent did not present any medical evidence to the contrary. Although the Petitioner conceded that her physical health was impaired in prior years, there is not sufficient record evidence for the Hearing Officer to conclude that the Petitioner will in fact be incapacitated due to her feet in the future. Further, rule 6B-5.11, F.A.C. explicitly states that:
In assessing the mental or physical health of educators, no decision adverse to the educator shall be made except on the advice or testimony of persons competent to make such judgement by reasons of training, licensure, and experience. (E.S.)
The record contains no such evidence upon which the physical health of this educator can be adversely decided.
The second question is whether the record contains substantial competent evidence that the Petitioner should be returned to annual contract due to incompetence and inefficiency as an instructor. Applying the elevated standard of proof required in this case, it is the conclusion of the Hearing Officer that it does not.
It would appear from the record that the Petitioner satisfactorily taught the ISCS program in the years she was at Horace O'Bryant Middle School. In the 1979-1980 school year at Key West High School, there is no evidence of dissatisfaction with her teaching, and her annual rating praised the Petitioner for the manner in which she was handling the ISCS curriculum.
In the school year 1980-81, the evidence shows that the Petitioner responded adequately to the assistance provided to her as a result of the intensive observations conducted by Mr. Herrick, Mr. Roberts, and Ms. Cox. There is no credible evidence that she failed to implement these suggested improvements.
In the school year 1981-82, there is little evidence to conclude that the Petitioner was an incompetent teacher. The annual evaluation that year is better than the year before, and only has two categories marked "needs improvement." The "personal qualities" category is marked unacceptable with the note "refer to my letter of April 30, 1982." The letter of April 30, 1982, Respondent's Exhibit 4, refers only to the Petitioner's injuries and physical health, and not to any other "personal qualities", and the evaluation in the comments section only mentions physical capacity to teach. In sum, it appears that there is no evidence of teaching incompetence in the 1981-82 school year, and that all criticisms were directed toward the Petitioner's health.
In the 1982-83 school year, the evaluative evidence presented by Ms. Cox, while sufficient to present some question concerning the Petitioner's teaching competence, ultimately fails to meet the elevated standard of proof. The problems with Ms. Cox's testimony are discussed above, and will not be repeated here. Several other matters should be noted, however, with respect to
the 1982-83 school year. It is unclear when in that year Ms. Cox conducted her observations, but on April 14, 1983, rule 6B-5.021, F.A.C., became effective.
That rule makes a distinction between an "assistance review" and "competence review." See rule 6B-502(11) and (12). The rule prohibits a reviewer from performing both an assistance review and a competence review, and prohibits the admission of any assistance review report into evidence in any proceeding involving dismissal or other disciplinary sanctions. Ms. Cox made it clear that she saw her role as one of providing assistance rather than evaluation of competence. Transcript, 47-48. The evidence is insufficient to determine the applicability of this rule to the testimony of Ms. Cox for the 1982-83 school year. But the rule does at least provide some further guidance for the Hearing Officer as to the professional distinction that Ms. Cox made when she disclaimed any role as an evaluator. The distinction consequently causes the Hearing Officer to proceed with some caution in accepting her ultimate conclusions as competent evaluation evidence. Further, the Petitioner's own departmental chairman, Mr. Herrick, did not testify in support of Ms. Cox's conclusions, and the testimony that he did provide would lead one to believe that he thought Ms. MacPherson was competent as a teacher. Mr. Phillips did not personally observe the Petitioner in the 1982-83 school year and no one else testified from personal observations to support the conclusions of the annual evaluation for that year. The annual evaluation itself does not rate the Petitioner unacceptable in any category. Again in the comments section, rather than specifically pointing out specific issues pertaining to the Petitioner's skills and competence as a teacher, Mr. Phillips only mentioned her health. Finally, the only other 1982-83 school year evidence are the letters to the Petitioner from the Superintendent, Respondent's Exhibit 5, and from Mr. Phillips, Respondent's Exhibit 8. These documents are the only official evidence of the Respondent's intent to return the Petitioner to annual contract. Neither one charges the Petitioner with incompetence for the school year 1982-83. Both rely solely upon the problem of the Petitioner's absences from school, which were caused only by her health. In summary, the record does not contain substantial competent evidence for the 1982-83 school year that the Petitioner was incompetent or inefficient as an instructor sufficient to justify return of her to annual contract.
In the 1983-84 year, the record contains some evidence that the Petitioner's teaching skills for the ISCS curriculum may be less than optimum but for a number of reasons the evidence is not sufficient to constitute good and sufficient reasons to return the Petitioner to annual contract. The only direct evidence concerning the Petitioner's teaching competence for that year came from the testimony of Ms. Cox and Dr. Fischer. If Ms. Cox was in fact engaged in an assistance review in the 1983-84 school year, then report of findings was not admissible in these proceedings. Rule 6B-5021(2), F.A.C. Additionally, as discussed in the findings of fact, her testimony was found to be not based upon a sufficient factual predicate to support the competency opinions that she provided.
Dr. Fischer's observations of the skills of the Petitioner were much more rigorously conducted. Nonetheless, Dr. Fischer's evaluation is flawed and thus does not provide a basis, as required by the elevated standard of proof, for return of the Petitioner to annual contract. First, the standard of competence by which Dr. Fischer judged the Petitioner is inadequately defined in this record. Dr. Fischer evaluated the Petitioner solely with respect to her skills teaching the ISCS course. Dr. Fischer was initially unfamiliar with the objectives of the individualized curriculum, and he took steps to learn what was needed to teach this program. He concluded that it would take a "highly skilled teacher" to effectively teach the ISCS curriculum to the type of students in
Petitioner's classes. But not every "competent" teacher is "highly skilled," and the failure of a teacher to be "highly skilled" is not incompetence as legally defined. Rule 6B-4.09(2), F.A.C., defines incompetence in part relevant to this case to mean "repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience." As such, the legal definition of incompetence does not require a "highly" skilled teacher, but only a minimally skilled teacher such that students receive a minimum level of education. In sum, Dr. Fischer applied the wrong legal standard to evaluate the Petitioner, although he was probably correct about the necessity to have the very best teacher to effectively teach the ISCS program to average and below average students.
Further, application of the "highly skilled" standard to the Petitioner was inappropriate in this case due to the fact that the Respondent had not provided any training to the Petitioner specifically to provide her with higher skills needed to teach the ISCS classes. It is also an inappropriate standard because the ISCS program is no longer provided at Key West High School, and the Petitioner does not need those skills to be an effective teacher in the future.
Dr. Fischer's conclusions that the Petitioner is an incompetent teacher are flawed for a second reason. Dr. Fischer stated that he intended to apply the "NEAT" system for evaluation of a teacher: notify the teacher as to what the problem is, explain what steps are needed for improvement, offer assistance, and allow time for improvement. Transcript, pp. 97-98. But ultimately Dr. Fischer did not follow this procedure. The procedure was initiated by the professional development plan on October 26, 1983, and set forth a number of tasks which Dr. Fischer admitted would take several months to implement. Indeed, one-half of the plan had a goal of January 1, 1984, for completion. Yet when Dr. Fischer evaluated Ms. MacPherson in January 1984, he did not give any consideration to the Petitioner's health related absences during the period of implementation. He testified, in essence, that this was irrelevant. By failing to evaluate whether the Petitioner had been afforded a reasonable period of time in which to make improvements, and by failing to evaluate whether Petitioner's health problems had impeded her teaching or her efforts to improve, the January 1984 evaluation becomes insufficient as a basis to conclude that the Petitioner is incompetent.
Finally, even had Dr. Fischer allowed enough time for improvement, and had he properly evaluated whether the Petitioner bad in fact been healthy enough during the improvement time to make improvements, at least one of the demanded "improvements" was unreasonable and in conflict with instructions given by Ms. Cox. Dr. Fischer placed great emphasis upon the Petitioner's failure during a class period to make individual contact with each student, and demanded that the Petitioner daily evaluate the progress of each student. This would have been physically impossible for even a highly skilled teacher to do. Science experiments require equipment, and time is needed at the beginning and end of the period to set upon and take down equipment. Further, time is needed, as Dr. Fischer pointed out in his evaluation, for the instructor to provide general guidance to the class at the beginning of the hour and closure at the end of the hour. In the 60 minutes available to the Petitioner for each ISCS class, she would have been lucky to have had 40 minutes of actual individual experiment time available. As noted in the findings of fact, this left 3 minutes per student in a class of only 13 to observe the experiment, engage in meaningful dialogue, evaluate the student's comprehension of the subject matter, answer questions, and record the student's progress. In a class of larger size, the
time available becomes correspondingly less. There seems also on this record to be uncertainty as to precisely what a teacher was supposed to do to properly teach the ISCS curriculum. The Petitioner said she was told to remain somewhat aloof from the students, forcing them to find their own solutions. Dr. Fischer, on the other hand, expected the Petitioner to confront students more often with questions, and to provide more answers. This Hearing Officer is not satisfied, on this record, that the standards were sufficiently well-established for teaching the ISCS program so that the Petitioner's performance could fairly be evaluated.
For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract.
DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida.
WILLIAM C. SHERRILL, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985.
COPIES FURNISHED:
Thomas W. Young, III, Esquire General Counsel FEA/United
208 West Pensacola Street Tallahassee, Florida 32301
Michael Casey, III, Esquire
2 South Biscayne Boulevard Suite 1800
Miami, Florida 33131
A. J. Henriquez, Ph.D. Superintendent
The School Board of Monroe County,
242 White Street
P.O. Drawer 1430
Key West, Florida 33040-1430
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 10, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 10, 1985 | Recommended Order | School Board did not have sufficient reason to return Petitioner to annual contract pursuant to Section 231.36(4)(b), Florida Statutes. |
