STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SCHOOL BOARD OF DADE, )
COUNTY FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3584
)
FRANCIS BURTON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Ella Jane P. Davis, the assigned Hearing Officer of the Division of Administrative Hearings on December
18 and 19, 1984, in Miami, Florida.
APPEARANCES
For Petitioner: Phyllis O. Douglas, Esquire
1450 Northeast Second Avenue, Suite 301
Miami, Florida 33132
For Respondent: Ellen L. Leesfield, Esquire
2929 Southwest Third Avenue Miami, Florida 33129
Petitioner presented the testimony of John Johnson II, Randi Rausch (a minor), Nancy Rausch, Susan Laurence, Gary Rito, Nicholas Rinaldi, Janice Thomas, Judith Dryanoff, Tara Macri, Rubye Howard, James Monroe, Richard Artmeier, James Miley, and D. Patrick Gray, Jr. Petitioner's Exhibits 1-41, including composites, plus 8A and 11A, were received in evidence. Respondent testified in her own behalf and presented testimony of Joshua Levinson (a minor), Susan Levinson, Richard Huffman, Sandra Baker Hoover, Inez Hollander, Renee B. Schick, James Collings, Yvonne Perez, and Richard Kroop. Respondent's Exhibits 1-24 were admitted in evidence. Two Joint Exhibits were admitted. The Pretrial Stipulation was admitted as a Hearing Officer Exhibit.
ISSUE
Whether Respondent should be dismissed from her employment with the School Board of Dade County, Florida, upon grounds of incompetency, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave.
POST-HEARING PROCEDURE
A transcript of the formal hearing was provided the undersigned on March 21, 1985, and proposed findings of fact and conclusions of law were timely filed by both parties. A subsequently-filed revision of Respondent's initial proposal
was accepted without objection and considered. When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in the Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly except where the proposed finding of fact was cumulative, immaterial, or unnecessary.
Based upon observation of the witnesses and their candor and demeanor while testifying, all exhibits admitted in evidence, and the proposals and arguments of counsel, the following relevant facts are found:
FINDINGS OF FACT
Respondent was initially employed by Petitioner on November 15, 1982, at West Little River Elementary School. She suffered a non-school related accident and was absent approximately 121 days during the 1982-1983 school year. Observations of her teaching by her then-principal, John Johnson II, were unfavorable, but due to the prolonged absences, those observations did not result in any formal evaluations/recommendations. Respondent's requested leave for this period was granted and approved by Petitioner upon the basis of her severe electrical shock and back injury. Some of this period was classified as leave without pay. Petitioner also paid Respondent's insurance premiums for this period. Having thus condoned this absenteeism, Petitioner cannot now be heard to complain of it. (See allegations of Paragraph 18 of the Notice of Charges.)
Principal Nicholas Rinaldi of Bay Harbor Elementary School hired Respondent as the teacher for its new "home-based" gifted program beginning there for the 1983-1984 school year. Although Principal Johnson would not have recommended Respondent for employment in the second year, he was not consulted by Principal Rinaldi.
Principal Rinaldi told Respondent that she was limited to a $1,000.00 budget for purchasing materials for the program she was to develop. Principal Rinaldi understood that Respondent knew she was both to stay within this budget which is the standard limit at all home-based gifted programs and that she was required to get prior approval of her purchases from him. Apparently, Respondent grasped, the concept of a $1,000.00 "cap" but did not initially understand that she was to obtain prior written permission. After two orders were cancelled, she still had overspent by $60.00. She was then told specifically not to make any further purchases without the principal's permission. Thereafter, another order placed by Respondent was received at the school but Petitioner did not establish that Respondent placed the order after the cancellation of two prior orders and after Rinaldi's specific instruction not to order any more goods whatsoever. (See allegations of Paragraphs 1 and 3 of the Notice of Charges.)
Respondent was clearly informed that she needed prior authorization for phone calls. She did not get prior permission for five long distance phone calls made personally or by students at her direction. The total cost of these
calls is 8.56, which is very minimal. All calls were related to classwork with the exception of one call for $.44 and one call for $.25, which were admittedly of a personal nature. Respondent reimbursed the $.72 after the fact when notified of investigation into the phone bill. (See allegations of Paragraph 2 of the Notice of Charges.)
Twenty-five students are required for a home-based gifted program. Bay Harbor was one of three North area schools piloting a home-based program in the 1983-1984 school year. In prior school years, gifted children from Bay Harbor attended a center program physically located elsewhere.
A center program places a team of teachers of subjects from various schools in one physical location. Eligible students from various schools come to the center for two days a week for the gifted program and they receive their basic skills education at their respective home schools in the remaining three days per week.
In a home-based program, a school which has enough gifted students elects to keep those students physically at the home school. They usually go into that program for two hours a day, every day. Some subject or subjects are used to deliver the gifted program. Those subjects are then graded by the home- based gifted teacher, who in this case was Respondent.
When he hired her, Principal Rinaldi told Respondent that mathematics would be part of the new "home-based" gifted program, but math was essentially unstructured in the beginning. Thereafter, Principal Rinaldi instructed Respondent to utilize the standard Dade County "total math program, (TMP).
When the TMP program was selected by Principal Rinaldi in approximately, December 1983, his motivation was that he understood TMP provided a structure for math that allows students to enter at the level that they are individually and moves each at a pace commensurate with his individual ability.
Unfortunately, because a home-based program does not select its students on their specific giftedness in content area, some students in Bay- Harbor's 1983-1984 pilot program were lower than others in math. Some were even below their grade level. Those above the grade level were becoming bored with the program and those below the grade level were in a constant state of frustration struggling to keep up. A failure on Respondent's part to communicate surfaced, and misunderstandings arose between Respondent and parents and students as to the nature of projects, when projects were due and the reasonableness of homework. Problems concerning teacher absences also arose. The more academic and less "time-out-of-school" atmosphere of a home-based versus a center-based program also caused problems between the Respondent teacher and students/parents and between the Respondent and her principal.
Upsets among the students and their parents resulted in many students being permanently removed from the gifted program. Over a period of time, the decrease in enrollment threatened to destroy the Bay Harbor gifted program, the survival of which required 25 students.
On January 4, 1984, Principal Rinaldi observed Respondent's class for an hour for teacher evaluation purposes. This resulted in a basically good evaluation with some areas targeted for improvement (instructional planning and maintenance of student records [P-7]). The crux of this targeting was the principal's perception that Respondent did not record sufficient grades and her
student files were not arranged alphabetically with papers arranged chronologically within each file. This standard of record-keeping is personal to Mr. Rinaldi and not uniform among other Dade County principals.
At the standard post-observation conference, the two argued over the evaluation and the exactitude required by the principal, and Respondent refused to sign the evaluation to acknowledge that she had seen and received a copy of the document. As will be related infra, this refusal to sign or initial merely for acknowledgment of receipt of documents became a constant and continuing refusal on Respondent's part whenever the issue came up. Six days later she refused again; on January 17, 1984, Respondent responded in four written pages defending her methods.
As events unfolded chronologically thereafter what started basically as a personality clash of the principal's "irresistible force" authoritarianism and the teacher's "immovable object" obstructionism mushroomed to affect students, parents, teachers, and administrators.
In early January, Respondent complained concerning the inclusion of math in the gifted program to a higher outside administrator Dr. Agerwald. Mr. Rinaldi objected to this contact. On January 11, 1984, Mrs. Vickers, Petitioner's Director of Exceptional Students Program, arrived to observe Respondent's classes. She prepared a "School Visitation Report." The report is basically positive but does comment that the gifted classes are too big and current IEPs (records) were not and should have been available in the classroom. On February 2, 1984, Vickers issued a commendation to Hay Harbor on quality of cumulative records for exceptional children. Mr. Rinaldi passed this commendation (R-19) on to Respondent with the note, "Mrs. Burton, please continue this fine record 2/6/84." On 1/23/84, he also commended her on quick responses to the Miami Module records-keeping requests (R-20).
Petitioner's advisor to gifted teachers, Richard Huffman, was assigned to assist Respondent at the beginning of the 1983-1984 school year. He testified that in his opinion she was a fit teacher, but he was removed as her advisor at the end of January or early February.
February 24, 1984, Assistant Principal Vince Vignola observed Respondent in the classroom for a full hour and rated her overall acceptable except that she needed more grades in math and had, lost a student "contract" which had never been signed.
Principal Rinaldi called in Gary Rito, Petitioner's Director of Academic Excellence for help resolving the gifted class problems. On March 2, 1984, Mr. Rito met with Respondent, Principal Rinaldi, and Mrs. Laurence, mother of a gifted student. Respondent and Laurence, who teaches elsewhere in Dade County, exchanged sharp words. It was agreed to meet again on March 8, 1984.
At that time, James Miley, Petitioner's Supervisor of Gifted Programs, was present. Respondent was given written notice of the meeting one day in advance.
Respondent elected to continue in this meeting at the conclusion of the school day. At this time most of her concerns, as expressed to all others present, were with the number of subjects she was required to cover and with the content of the mathematics curriculum in particular.
Mr. Rito explained that "gifted" symbolizes a "technique" not a "subject," that Respondent was to use this technique for teaching subjects of math, science (which Respondent should be teaching anyway), and social studies, and for teaching a health and safety unit which was taught for only one or two grade units.
Respondent strenuously objected to the use of the TMP math program. Rinaldi and Miley concurred that it was reasonable to include math in the gifted program. Math was, in fact, successfully used in the other two home-based programs beginning in Bay Harbor's Division that year, but the programs utilized may not have been the TMP. Nonetheless, the following adjustments were agreed upon among all those present at the March 8, 1984 meeting: Principal Rinaldi agreed to relieve the academic excellence program of the TMP math program and increased their enrichment activities; Ms. Thomas, Say Harbor's 6th Grade math teacher, was assigned by Principal Rinaldi to help Respondent in math. It was later Ms. Thomas' assessment that Respondent did not understand the TMP concept; and Respondent was directed and agreed to develop four units of study in botany (2 intermediate and 2 primary) to cover the rest of the school year (9 weeks). These plans were to cover instructional objectives, classroom activities, student evaluation methods and homework assignments on a time line. A preliminary plan was to be shown by Respondent to Mr. Miley on March 20.
This assignment was primarily the result of a request by Ms. Laurence and other parents requesting to see a sets of plans for purposes of deciding whether to leave their children in the Respondent's class or return those who had already been withdrawn. Rinaldi, Rito, and Miley felt the plans required by the directive would ease the primary problems of implementing the program and of parent-teacher communications and misunderstandings which had been growing, and also felt they were reasonable and necessary. Everyone was aware that withdrawal of Mrs. Laurence's child could reduce program enrollment below the 25 student minimum required. However, no one clearly expressed the belief that this directive was a prescription to improve Respondent's teaching performance, which had been found basically sound up to this point. 1/
The direction itself was for a reasonable and necessary purpose (preserving and improving the gifted program). However, despite Mr. Miley's opinion that the plans as initially directed were reasonable and necessary and despite Respondent's failure to object to the direction at this point, the initial scope of the direction was actually unreasonable under the circumstances. Mr. Miley postponed his scheduled meeting with Respondent from March 20 to March 23, 1984. On that date, Respondent had nothing to show him with regard to the required botany units she had been asked to prepare. Mr. Miley met with Respondent anyway and reduced the required units from 4 to 2 and extended the time for preparation until April 12, 1984. He also gave her a document entitled "Standards of Excellence" for use in the units she was to prepare and agreed to let Respondent continue with her present evaluation system. This adjustment, made in consultation with Respondent also rendered the scope of the direction to prepare the units reasonable. 2/
On April 12, 1984, Mr. Miley asked for the required botany units and received nothing from Respondent. He returned to the school on April 13, and Respondent produced a series of goals and objectives essentially copied from the "Standards of Excellence" wherein she had identified part of a program for the primary students but none for the intermediate students. There were no classroom activities listed, no homework mentioned, and no time lines provided. Despite the extension of time, Respondent did not fulfill the required directive even in its reduced and consequently reasonable form. 3/ The units were not
further amplified by Respondent before she left on April 20 and Mrs. Laurence's child was permanently removed from the gifted program. (See allegations of Paragraphs 5 and 7 of the Notice of Charges).
On March 12, 1984, Respondent called Principal Rinaldi a liar three times in the presence of two other school employees. 4/ (See allegations of Paragraph 4 of the Notice of Charges.)
Respondent later informed Principal Rinaldi that she perceived the March 8 meeting as disciplinary in nature. He had not considered it so. He accordingly removed a request for her signature from a summary he had prepared of the March 8 meeting and scheduled a "conference-for-the-record" for March 16, 1984. Conferences-for-the record are disciplinary conferences. The March 16, 1984 meeting was postponed at the request of the Respondent's union representative. A second request for postponement for emergency reasons peculiar to the schedule of that particular union representative (Ms. Perez), was not granted and the conference-for-the-record went forward on March 20, 1984, with Respondent accompanied by her union steward, James Collings.
At this conference, Rinaldi discussed the same matters that had been discussed at the March 8, 1984 meeting, the incident which had occurred March 12 when Respondent called him a "liar" three times, Respondent's unsatisfactory attendance record that year, and the fact that her absences were having an adverse effect on the program. Respondent was specifically instructed by her union advisers not to speak at this conference. Certainly she did not deny the March 12 "liar" incident. When she did not respond to Principal Rinaldi's accusations and inquiries, he became agitated.
Respondent had received prior approval for a half-day in-service conference (8:30 a.m. to noon on March 21, 1984) with Mrs. Vickers, Director of Petitioner's Exceptional Student Education Program. When she did not report back to teach at Bay Harbor that afternoon, Mrs. Macri, secretary to Principal Rinaldi made inquiries and Respondent's continued presence with Mrs. Vickers was confirmed, but not approved. This constitutes a 1/2 day's absence without leave. No substitute was procured since Respondent had been expected to teach her afternoon class. (See allegations of Paragraph 12 of the Notice of Charges.)
On March 28, 1984, during a regularly scheduled parent meeting, the parents present expressed a great deal of dissatisfaction with various aspects of the gifted program, particularly math. Principal Rinaldi publicly attributed the problems in the gifted program to Respondent and Respondent retaliated by publicly stating that she did not believe TMP math should ever have been included in the gifted program and that she had no control over the inclusion of the math. The majority of witnesses actually present at this meeting found its entire tone and nature informative prior to Principal Rinaldi's comment. Even then, Respondent's comments may have been less than tactful but were hardly untruthful, unprofessional, irresponsible, or incendiary. (See allegations of Paragraph 6 of the Notice of Charges.)
Respondent was tardy to the March 29, 1984 faculty meeting. Based on the contemporaneous memoranda and letter, Respondent's estimate of 3-4 minutes tardiness is accepted over Dr. Rinaldi's later estimate of 20 minutes. The causes related contemporaneously by Respondent are entirely reasonable. (See allegations of Paragraph 11 of the Notice of Charges.)
At Principal Rinaldi's April 16, 1984 classroom observation of Respondent, he rated her teaching performance as unacceptable in 3 categories: preparation and planning, assessment techniques, and professional responsibility (P-18). Rinaldi testified that his negative ratings in preparation and planning were due to what were minor concerns on the January evaluation. However, as observed above in Fact Paragraph 6, the January evaluation actually concentrated on the principal's particularly harsh requirement that Respondent's student files must be arranged alphabetically with papers neatly arranged chronologically within each file. Since his perception of the adequacy of records is so intensely personal to Mr. Rinaldi and in light of interim commendations to Respondent for record-keeping, his April analysis of inadequate records of assessment renders the final evaluation "score" highly suspect. 5/ (See allegations of Paragraph 8 of the Notice of Charges.)
Respondent was tardy to work and failed to timely sign in on March 26, 27, 28, and April 20, 1984. (See allegations of Paragraph 13 of the Notice of Charges.)
Respondent was absent on April 17, 18, and 19. She requested leave for April 17-18 late but it was approved and authorized in advance by Principal Rinaldi for participation in religious holidays. However, these were absences without pay and pushed Respondent over the number of personal leave days to which she was annually entitled. Respondent was absent without authorization on April 19; this was an absence without pay. (See allegations of Paragraphs 14 and 19 of the Notice of Charges.)
On April 20, 1984, Respondent protested, but finally agreed to meet with Principal Rinaldi in his office for a post-observation conference. Post- observation conferences are not normally considered disciplinary in nature. By this time, he had added Respondent's late notification of the 4/17-4/18 absence and her 4/19 absence to the prescription sheet as deficiencies. Respondent declined an oral dialogue with Rinaldi wherein she was invited to respond to the rating criticisms and prescriptions and offer alternatives and also refused to initial his notation that she insisted on responding in writing. Midway in this meeting, Respondent announced she was going to leave. Again, she would not sign to acknowledge receipt of the observation and prescriptions. Rinaldi instructed her that she was obligated to discuss the rating and if she left, he would consider it insubordination. Respondent left his office and the school and did not return to work as a teacher at Bay Harbor again. A formal reprimand issued partly as a result of this incident. (See allegations of Paragraph 9 of the Notice of Charges.)
On April 23 and April 24 Respondent was absent without pay. April 23 was unauthorized leave. (See allegations of Paragraphs 14 and and 19 of the Notice of Charges.)
With regard to the frequent' short absences, which total led 18 as of April 22, Respondent rarely if ever complied with the "Teachers' Handbook" guidelines for advance notification. Respondent originally felt that it did not matter what type of leave (personal or sick) was listed because she had no leave left anyway. Although many of these absences were for legitimate illnesses or injury of herself or a relative, there was either an on-going absence of lesson plans or a failure on Respondent's part to inform the principal that she had created plans since he last commented on there being none. Consequently, he
often could not or did not secure substitutes. This resulted in wasted class time and interfered with classroom continuity. Some of Respondent's unauthorized absences were simply gifted programs she chose to attend without notifying the principal in advance.
Respondent was also absent during the 1983-1984 school year for two lengthy periods, which, with all other absences, totalled 62 1/2 days. Medical narratives, admitted without objection, corroborate Respondent's testimony that the two lengthy absences were the result respectively of unanticipated allergic complications of a CAT scan (from January 30 to February 10, 1984,) and of surgery to correct acute sinusitis and recovery time from late April until release. One doctor released her from this last treatment On May 29, 1984; the other released her on June 8, 1984.
During the period of time she was absent immediately following the April 20 "walkout" incident until approximately June 8, Respondent failed to adequately inform Petitioner of her proposed date of return. Certified letters sent to her post-office box were returned because Respondent did not pick them up and Petitioner could not send these to her by regular mail or by hand- delivery via a "visiting teacher" because Respondent had never informed Petitioner of her street address. The failure of Respondent to stay in touch, her failure to indicate when she could return to work, and her failure to indicate that her absence would be lengthy resulted in an inability of Petitioner to immediately hire a permanent substitute teacher. Therefore, the gifted classes had to "make-do" with a series of short term substitutes (4 or 5) until Mr. Rinaldi finally hired Mrs. Judith Dryanoff. This process created a lack of continuity in the classroom and more student withdrawals from the gifted program.
The problem with multiple substitutes was compounded by Respondent's failure on April 24 and thereafter to have available substitute lesson plans. 6/ Because of Respondent's failure to leave any form of lesson plans or grade book, substitute Judith Dryanoff had to make up her own lesson plans for science and enlist the help of Janice Thomas for math plans. (See allegations of Paragraph
10 of the Notice of Charges.)
On May 24, Principal Rinaldi signed Respondent's Annual Evaluation, not recommending her for employment in the next school year (P-22).
When released by her doctors, Respondent was assigned by Administration to the North Area Office for June 11-15 and was expected by her principal to be at Bay Harbor simultaneously. She obviously could not do both. She was at the North Area Office for part of June 12 and at Bay Harbor for part of June 14. She was in neither location on June 11, 13, and 15. These days constitute absences without leave. (See allegations of Paragraph 19 of the Notice of Charges.)
On June 12, 1984, James Monroes, a supervisor in Petitioner's Division of Personnel Control, ordered Respondent to begin the 180 hour course, Beginning Teacher Program, to start at 10:00 a.m., June 14, 1984, at Bay Harbor Elementary School. 7/ At 7:20 a.m. that morning Respondent confronted Principal Rinaldi in his office and called him "malicious, devious, incompetent," and "a sorry excuse for a principal." She accused him of personally taking her personal items from her room and of attempting to get her fired. 8/ Although she initially refused to come back for the program, she returned at 10:00 a.m. and repeated essentially the same harangue in the presence of Mrs. Thomas, the peer teacher selected to oversee Respondent's Beginning Teacher Program. Mrs. Thomas was
called in by Mr. Rinaldi who had anticipated that a scene would ensue. Thereafter, out of Mr. Rinaldi's presence, Respondent invited Mrs. Thomas to sign a petition "to get rid of Mr. Rinaldi". (See allegations of Paragraph 15 of the Notice of Charges.)
Dr. Huffman testified that Respondent also frequently yelled at Mr. Rinaldi in Dr. Huffman's presence prior to Dr. Huffman's February reassignment, and Mrs. Macri, secretary to Principal Rinaldi testified that she had heard Respondent call Mr. Rinaldi a "bastard" or refer to him as a"bastard," but the date of this incident(s) was not proven.
On August 29, 1984, Dr. Richard Artmeier, supervisor of Petitioner's Division of Personnel Control, directed Respondent to be psychiatrically evaluated the next day to determine if there were any mitigating circumstances for her June 14, 1984 behavior. Respondent is obligated to submit to such evaluation by terms of her employment. After vacillation, Respondent refused to sign the written directive indicating its receipt and adamantly refused to see a psychiatrist. Finally, Dr. Artmeier directed her instead to report to the North Area Office the next day. Respondent did, however, actually go the next day as originally directed for psychiatric evaluation to Dr. Gail Wainger. Dr. Wainger was on Petitioner's "approved" list. In so doing, Respondent could not immediately comply with the directive to report to the North Area Office. Respondent reported to the North Area Office later the same day after her psychiatric evaluation. Petitioner accepted Dr. Wainger's psychiatric evaluation of Respondent, paid for it, and it was admitted at hearing upon Petitioner's motion (P-38). Since Respondent could not be in two places at once, she fulfilled the alternative directives reasonably by fulfilling them sequentially even if she did initially refuse. (See allegations of Paragraphs
16 and 17 of the Notice of Charges).
The psychiatrist's evaluation is admissible under Section 231.291, Florida Statutes and has been considered. Upon that evidence, together with all other credible evidence adduced at formal hearing, Respondent was accountable for her actions.
Respondent has never qualified for and has never been characterized as a teacher under continuing contract.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.
The Notice of Charges sets forth 19 paragraphs of alleged violations which Petitioner argues constitute cause for dismissal of Respondent upon Section 231.36 and Section 231.44 F.S. grounds of incompetency by reason of excessive absenteeism and tardiness, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave. Respondent's situation and status as one not under continuing contract falls properly under Section 231.35(6)(a), incorporating grounds for dismissal under Section 231.36(1)(a).
The pertinent definitions to be applied are:
6B-4.09 Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36,
Florida Statutes. The basis for each of such charges is hereby defined:
Incompetency is defined as inability
or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education.
Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) 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; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
* * *
Misconduct in office is defined as a violation of the Code of Ethics of the Educa- tion Profession as adopted in Rule 6B-1.01, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, F.A.C., which is so serious as to impair the individual's effec- tiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Upon the foregoing findings of fact, Petitioner has failed to establish that the events alleged in Paragraphs 1 (ordering materials without proper authority), 2 (making long distance phone calls), 3 (making purchases in excess of $1,000), 5 (failing to prepare units on 3/23/84), 6 (language at
3/28/84 parent-teacher meeting), 8 (inadequate records of assessment on 4/16/84), 11 (tardy to 3/29/84 faculty meeting), 16 (on 8/29/84 refused psychiatric exam), 17 (on 8/30/84 failed to report to North Area Office), and 18 (absenteeism in 1982-1983 school year) of the Notice of Charges meet any of the foregoing legal definitions.
Although it is clear that much of Respondent's behavior was aggravated, if not instigated, by her principal, it is also clear that the events alleged in the remaining paragraphs of the Notice of Charges have been established and discussion of the applicable law is in order.
With regard to Paragraphs 4 and 15 of the Notice of Charges, which relate the March 12 and June 14 abusive language incidents, it would appear that in an effort to document events, Principal Rinaldi arranged an "audience" for Respondent's anticipated behavior, which behavior in his presence alone would not have been particularly onerous. See Smith v. School Board of Leon County,
405 So. 2d 183 (Fla. 1981). Nonetheless, simply having witnesses present did not "entrap" Respondent or "egg her on." Respondent had a history of using loud and immoderate language in addressing her principal in the presence of other school personnel. During these two incidents Respondent, (unlike the employee in Smith), was instructional personnel, engaging in totally inappropriate behavior during school hours or at least during hours teachers were required to be present at the school, and engaging in it in the presence of other administrators and instructional staff. Further, her accusations were not true. Her behavior on these two occasions constitutes misconduct in office as it cannot help but impair her effectiveness in the school system.
The April 20 situation alleged in Paragraph 9 of the Notice of Charges when Respondent refused to discuss the observation falls within the Smith doctrine and neither gross insubordination nor misconduct in office is established as a result of those events.
The events alleged in Notice of Charges Paragraph 7 wherein on April 13 Respondent failed to prepare lesson plans she was reasonably instructed to prepare, and Notice of Charges Paragraph 10 wherein from April 24, 1984 on there were absolutely no lesson plans available, have been sufficiently proven to establish misconduct in office and willful neglect of duties.
The events alleged in Notice of Charges Paragraphs 12, 13, 14, and 19 dealing essentially with chronic absenteeism and tardiness, have also been sufficiently proven to establish incompetency, misconduct in office and gross insubordination/willful neglect of duties. Respondent's absences, notwithstanding the fact that most were legitimate, together with her tardies and cavalier attitude toward notification and lesson planning were clearly excessive to the extent they impaired her effectiveness in the school system, deprived her pupils of minimum educational experience, and seriously impaired the gifted program. Moreover, due to these factors and the hardship such a combination creates with regard to allocation of School Board personnel and funds, they would be sufficient grounds for dismissal even if she had not been found guilty of any other charges. See Dade County School Board v. Schlecker DOAH Case No. 78-1074 (Recommended Order subsequently adopted.)
It is recommended that Petitioner enter a Final Order dismissing Respondent from employment with the Dade County School Board and denying any claims for back pay.
DONE and ORDERED this 20th day of June, 1985, in Tallahassee, Florida.
ELLA JANE P. DAVIS
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 20th day of June, 1985.
ENDNOTES
1/ See footnote 3 infra. 2/ See footnote 3 infra.
3/ Respondent's "Proposed Findings of Fact, Conclusions of Law, and Recommended Order" raises the arguments (1) that the direction was unreasonable and (2) that where a teacher is not under prescription for some variety of unsatisfactory performance, the UTD collective bargaining agreement ( Jt. Ex 1) precludes the assignment of extensive lesson plans in advance and even if there may be proper circumstances where a directive to prepare lesson plans may be given, it is in the teacher's discretion what type, style, or scope of lesson plan to use.
Testimony reveals Respondent never filed any grievance. This instant proceeding is not the appropriate forum for resolution of that dispute anyway. Except as this document may be part of the conditions of employment between the School Board and this Respondent, the undersigned has no jurisdiction to determine contractual rights and has not done so. However, in assessing all evidence received, including that of Respondent's union representative Mrs. Perez, the above finding of fact that the scope of the directive was rendered reasonable in consultation with Respondent is amplified to indicate that any unreasonableness of the initial directive was corrected when the Respondent negotiated with Dr.
Miley concerning scope of the directive, on which Respondent apparently won all points. Respondent did not request further help or further extensions of time after the March 23 modifications to the directive. She simply did not comply with the adjusted directive, apparently because Mrs. Perez told her, contrary to written memoranda and Mr. Miley's oral explanations to Respondent, that Mr.
R inaldi could not possibly mean anything beyond broad objectives.
4/ Respondent admits the incident and the circumstances but claims she only used the word "untruthful." Opinions of those not present about Principal Rinaldi's truthfulness at other times, in other situations, on other subjects are irrelevant, immaterial and non-probative.
5/ Respondent's assertion, contained in her "Proposed Findings of Fact, Conclusions of Law, and Recommended Order," that past behavior cannot be "prescribed" because only future performance can be corrected by prescription has been considered. The April 16, 1984 observation form and "prescriptions" do read like a scenario of all the Respondent's wrongs (as perceived by the
principal) from the commencement of the 1983-1984 school year up to and including the April 16, 1984 observation, with concentration on the imperfections of the units Respondent turned in to Mr. Miley on April 13. Added to that are some later absence problems. It is difficult to imagine from the tone of these prescriptions" ostensibly prepared 4/19/84 how Respondent was expected to retrospectively correct most of the earlier behavior the principal perceived as unacceptable. On the other hand, it is noted that she had paid for the phone calls and the teaching materials were returned to the retailers to avoid overspending the budget. Also, since the acts of lesson planning, teaching, record keeping, and attendance are continuing behaviors, Respondent could have attempted to improve the units and her tardiness and absence problems by future performance if she had remained on the job, so that a post-observation conference could have legitimately followed the observation.
6/ Respondent's contention by her testimony and reiterated in her post-hearing proposals that emergency lesson plans were available when she left in April and that Mr. Rinaldi intentionally and maliciously did not pass them on to the substitutes is nowhere supported and is contrary to the direct credible evidence of Mr. Rinaldi, Mrs. Dryanoff, Mrs. Macri, and Mrs. Thomas.
7/ Respondent has had continuing problems with teacher certification, and the evidence of all witnesses is consistent that the State Certification Office of the Florida Department of Education required Respondent to complete the Beginning Teacher Program prior to obtaining regular Certification. All temporary certificate holders must complete this program, but Respondent resented application of the requirement to her because she believed she had previously successfully taught gifted children in another state. She did not agree to take the program and early in the 1983-1984 school year met with a representative of Petitioner's Beginning Teacher Office, the Director of Instructional Staffing, and Rubye Howard, Petitioner's Assistant Supervisor in Charge of Certification. It was agreed that if Respondent was issued a regular certificate, she would not have to take the Beginning Teacher Program. During the latter part of the 1983-1984 school year, Respondent was denied the regular certificate. An application for 1984-1985 was sent in by Petitioner on Respondent's behalf. Respondent maintained she had a permanent Florida "gifted ed" teaching certificate at her home. This self-serving statement is uncorroborated. Respondent's suggestion by her testimony that Mr. Monroe's assignment of her to the Beginning Teacher Program was a "plot" initiated by Mr. Rinaldi is accordingly rejected as is any suggestion by testimony or post- hearing proposals that Rinaldi's involvement in the Beginning Teacher Program somehow authorized or excused Respondent's subsequent immoderate language to him.
8/ Although Respondent may have believed the truth of these accusations at the time she uttered them, they were apparently untrue. Ms. Dryanoff testified that the gifted program concluded before the regular term ended and that Rinaldi told her at that point to place Respondent's possessions in cartons for her which he provided. She placed all of Respondent's things in approximately 15 boxes and some bags, rolling up charts and being as careful as she could. It took her approximately 2 1/2 days. The boxes were left in the room and she threw nothing of consequence away. Respondent initially charged that her materials for a book manuscript on teaching the gifted were intentionally destroyed by Principal Rinaldi. When she looked over the materials specifically set aside for her by Mrs. Dryanoff, it appeared lesser amounts than she initially feared were actually missing. However, she also testified many items remain missing. Her
premise, raised by testimony and post-hearing proposals, that her outburst on June 14 was justified by the loss of materials through efforts of Principal Rinaldi is therefore rejected.
COPIES FURNISHED:
Phyllis O. Douglas, Esquire Suite 301
1450 N.E. Second Avenue Miami, Florida 33132
Ellen L. Leesfield, Esquire 2950 S.W. 27th Avenue
310 Coconut Grove, Florida 33133
Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33131
Ellen L. Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1990 | Final Order filed. |
| Jun. 20, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 04, 1985 | Agency Final Order | |
| Jun. 20, 1985 | Recommended Order | Affirm dismissal of Respondent for insubordination, willful neglect of duty and absenteeism. |
