STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NOS. 88-2368

) 88-3315

MARLENE RODRIGUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 27, 1988, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Frank R. Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: Marlene Rodriguez

16333 Wood Walk

Miami Lakes, Florida 33014 BACKGROUND AND PROCEDURAL MATTERS

Case no. 88-2368 began on May 6, 1987, when Petitioner took action to suspend Respondent from all employment for a thirty workday period. At that time Petitioner alleged the basis for Respondent's suspension to be misconduct in office. On May 13, 1987, Respondent requested a hearing on the suspension. The case was not forwarded to the Division of Administrative Hearings for formal proceedings until May 12, 1988.

Case no. 88-3315 began on June 22, 1988, when the Petitioner took action to suspend and initiate proceedings to dismiss Respondent from all employment. The basis for this action was Respondent's alleged incompetency, gross insubordination, willful neglect of duty and misconduct in office. On June 28, 1988, Respondent contested this proposed action and requested a formal administrative hearing. This case was forwarded to the Division of Administrative Hearings for formal proceedings on July 5, 1988.

On September 22, 1988, Petitioner filed a Motion to Consolidate the cases for purposes of hearing. This request was granted over Respondent's objection.

On September 22, 1988, Petitioner filed a Motion to Take Deposition Testimony via telephone. The purpose of this request was to allow Petitioner to

take the deposition of George Clark, a witness who no longer resides in the Dade County area. Respondent did not oppose this request which was granted on September 27, 1988.

A third motion requested that the Petitioner be allowed to offer the deposition referred to above in lieu of live testimony since the deponent resides in Leesburg, Florida. This request was granted and Petitioner was required to file the deposition within twenty days of the hearing.

At the hearing, the following witnesses testified on behalf of the Petitioner: Barbara Thompson, Brandi Mingo, Kathy Richardson, Kimanita Richardson, Jo-Ann Taylor, Jerod Jerry, Lew Leon, Santos Venzor, Felicia Gil, Dorothy Sawyer, James Monroe, Robert Cowart, Jimmie Brown, and Patrick Gray. Petitioner offered eighteen exhibits, identified as Petitioner's 1-18, which were admitted into evidence. The deposition of George Clark was filed on October 27, 1988. Respondent testified in her own behalf but offered no documentary evidence.

After the hearing, Petitioner filed proposed recommended orders which have been considered and addressed in the attached Appendix. A transcript was filed on October 17, 1988.

ISSUE

The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida.

   
   

2. At all times material to the specific charges in these cases, Respondent, Marlene Rodriguez, was employed by Petitioner as a teacher with the Dade County school system. Respondent has been an employee for approximately fifteen years and worked pursuant to a continuing contract.

   
   

3. During the 1984/85 school year and a portion of the 1985/86 year, Respondent was employed at Miami Gardens Elementary School. Lew Leon was the principal at Miami Gardens during this period, and Santos Venzor served as assistant principal.

   
   

4. On June 4, 1985, Respondent received a letter of reprimand from Lew Leon. This letter cited Respondent's inadequate classroom management and failure to follow policies regarding contact with parents. The specific basis for the reprimand was Respondent's failure to follow the corporal punishment policy, her failure to notify parents, and her referral of students to the office without the proper documentation. This written reprimand was delivered to Respondent and during a conference for the record conducted the same date.

   
   

5. On October 18, 1985, Mr. Leon wrote to Dr. Patrick Gray, Executive Director, Division of Professional Standards, and sought assistance for

   Respondent. The basis for this request stemmed from several incidents which had occurred during the school days immediately prior to the memorandum, and which had been witnessed by the assistant principal, Santos Venzor, and other staff members. These incidents consisted of accusations made by Respondent that Mr.

   Leon and Ms. Venzor were telling a local Miami television station "all that shit." Presumably, Respondent believed the principal and his assistant had made comment to the news regarding Repondent, however, no specific information was offered by Respondent to clarify just what they had allegedly said. Respondent called Mr. Leon and Ms. Venzor "bigots" and "liars" and repeated the accusations after she had been directed to refrain from making such comments. Respondent also stated that the administrators were "unprofessional." On October 21, 1985, Respondent was placed on alternate assignment with the North Area Office pending a medical evaluation.

   
   

6. As a result of the medical evaluation, Respondent was removed from the school setting for a period of time and transferred to another school, North Carol City Elementary School (Carol City). Respondent was given a written summary of the conference for the record conducted on January 6, 1986.

   
   

7. Respondent began at Carol City on February 3, 1986. Dorothy Sawyer was principal at Carol City at that time. On March 13, 1986, Mr. Clark, an assistant principal at Carol City, performed a teacher assessment evaluation for Respondent. This evaluation was performed in accordance with the teacher assessment and development system (TADS) and found the Respondent to be unacceptable in five of the seven categories evaluated: classroom management, techniques of instruction, teacher-student relationships, assessment techniques and professional responsibility. The overall summary rated Respondent unacceptable and recommended dismissal for cause.

   
   

8. As a result of the TADS evaluation, Respondent was given several prescriptions for improvement. Unfortunately, her inability to manage students in the classroom continued. On March 25, 1986, Mr. Clark prepared a memorandum to Ms. Sawyer citing Respondent's continued failure to follow school policies regarding the discipline of students in her class. On several occasions Mr. Clark discovered Respondent had locked students outside of her classroom. The unsupervised students were left in the hall, because Respondent found they had disrupted her class. Mr. Clark had advised Respondent not to lock students outside the class but she continued to do so.

   
   

9. On April 8, 1986, Mr. Clark prepared a memorandum which again chronicled observations made regarding students being locked outside of Respondent's class. On April 7, 1986, Respondent refused to allow three disruptive students to remain in her class. Later, Mr. Clark ushered the students to their seats. When the incident was repeated on the morning of April 8, 1986, Respondent was directed to leave the classroom to allow a substitute teacher to teach the class.

   
   

10. Respondent attempted to solve the discipline problems in her classroom by making student case management referrals on the disruptive students. This method, while within school guidelines and an appropriate course of conduct, was inadequate to solve the continuing problems in Respondent's class. Respondent's solution, to lock students outside the class, was not an acceptable school procedure.

    
    

11. During the remainder of the 1986 school year and for the 1986/87 year Respondent was either on leave of absence or special assignment to another school (a nonteaching assignment). Finally, during the 1987/88 year Respondent

    returned to Carol City and was assigned a second grade class. Mr. Robert Cowart, assistant principal, performed a TADS evaluation for Respondent on November 30, 1987. This assessment found Respondent deficient in four of the seven categories evaluated. A prescription plan was developed to assist Respondent.

    
    

12. On December 9, 1987, a conference for the record was conducted regarding Respondent's failure to notify parents of students with failing grades in her class. The school policies require all teachers to notify the parents of students who are doing unacceptable work. Respondent had failed to give the written notice. To assist Respondent, Mr. Cowart was to review Respondent's grade book. Initially, Respondent had suggested that the failing grades be changed to avoid the problem.

    
    

13. On January 21, 1988, Mr. Brown, principal at Carol City, performed a TADS observation of Respondent. Respondent was found to be deficient in classroom management and student-teacher relationships. To assist Respondent, it was recommended and required that she attend assertive discipline workshops.

    
    

14. On February 5, 1988, a conference for the record was held to discuss Respondent's failure to participate in an assertive discipline workshop which had been conducted on February 2, 1988. At this conference Respondent was afforded an opportunity to explain why she had refused to participate. No adequate explanation was given.

    
    

15. On March 1, 1988, Respondent failed to attend an assertive discipline workshop. Respondent had been given a schedule for the sessions, an announcement had been made on the school public address system to remind teachers of the session, and a written reminder was placed on the bulletin board. Respondent's claim that she had simply forgotten to attend the workshop is not credited.

    
    

16. On June 13, 1988, Respondent was given an annual TADS evaluation. The overall summary rating found Respondent's performance unacceptable. The categories found to be deficient were: classroom management, teacher-student relationships, and professional responsibility. Based upon Respondent's failure to correct the areas of deficiencies despite repeated efforts on the school's part to assist her, Mr. Brown recommended that Respondent be dismissed.

    
    

17. Three students testified regarding Respondent's conduct. According to Brandi Mingo, Respondent required this student to sit at the "bad" student table. Students at this table were not allowed to participate in class activities. Brandi reported that on one occasion Respondent scratched her neck as a result of physical contact between Respondent and the student while administering discipline to Brandi. A second student, Jerod Jerry, witnessed an incident when the Respondent threw a stool out the classroom door. This student was forced to stand outside the classroom and when he would not voluntarily exit the room, Respondent allowed several students to forceably remove Jerod from the room. The school principal, Mr. Brown, also witnessed an incident involving a student. After Mr. Brown had directed Respondent to allow a student to reenter the class, Respondent pushed the student outside and attempted to exclude her from class. A third student, Kimanita Richardson, complained that Respondent had slapped her across the face with such force that it had bruised and cut the child's eyelid. A slight mark remains from this incident. Respondent had also pulled Kimanita's hair or ear to get her attention.

18. In an effort to assist Respondent, Mr. Brown had moved students from her classroom, had offered instruction to help her develop strategies to deal with the class, had encouraged Respondent to visit other classrooms to see how successful strategies might be implemented within the classroom, and had offered counseling and encouragement. Respondent's performance deteriorated to the point that she declined to participate in any employee assistance programs.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

20. Section 231.36(4)(b), Florida Statutes, provides that any member of the instructional staff who is under continuing contract may be dismissed for good and sufficient reasons. In the first case, case no. 88-2368, Petitioner sought a thirty workday suspension for misconduct in office. The suspension was presented to the School Board on May 6, 1987. Presumably, the conduct constituting misconduct in office occurred prior to May 6, 1987.

    
    

21. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

22. Rule 6B-1.001, Florida Administrative Code, provides, in pertinent part:

    
    

    (2) The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    
    

23. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          * * *

          1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          2. Shall not intentionally violate or deny a student's legal rights...

          * * *

          (5) Obligation to the profession of education requires that the individual:

          * * *

          (d) Shall not intentionally make false or malicious statements about a colleague.

          
          

24. With regard to Respondent's performance prior to May 6, 1987, the record establishes that beginning in June, 1985, Respondent failed to follow school policies related to classroom management. These deficiencies related to corporal punishment of students, failure to send notices home to parents, requiring detentions without proper authorization, and failure to follow reasonable directives. Respondent did not follow school policies regarding detentions or referrals. While there were periods of acceptable performance, Respondent did not sustain a continuing acceptable level of performance.

    
    

25. In October, 1985, Respondent's outbursts and accusations toward Mr. Leon and Ms. Venzor were without merit and false. After reasonable requests had been made for Respondent to cease making the comments, the accusations were repeated. Petitioner offered Respondent assistance at the time based upon a medical opinion that Respondent should not return to the classroom. There is no evidence that Respondent continued counseling or obtained further medical assistance after October, 1987. Further, there is no medical evidence to excuse Respondent's conduct.

    
    

26. Rule 6B-4.009, Florida Administrative Code, provides, in part:

    
    

    1. 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:

       1. 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.

       2. 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.

          
          

27. Case no. 88-3315 alleged Respondent to be incompetent based upon inefficiency and incapacity. The record in this cause established Respondent repeatedly failed to communicate with the children in the classroom. The consistent threads weaving throughout this record prove Respondent did not possess the classroom management skills to maintain order and deliver a learning message to the students. Secondly, the relationships between Respondent and her class members were, repeatedly, so poor that any effort to teach was lost. The measures taken by Respondent (such as locking out disruptive students) were inappropriate and contrary to school policy. As a result students in Respondent's class were deprived of a minimum educational experience.

    
    

28. With regard to Respondent's emotional stability, Petitioner has proven that tantrums such as stool throwing or striking students did occur and did accentuate the problems in classroom management Respondent experienced. These outbursts are heightened by the fact that Respondent offered no reasonable explanation for such conduct, refused employee assistance programs, and did not attend workshop sessions which might have helped her. No conclusion is reached as to Respondent's overall psychiatric stability, the conclusions reached herein relate to the specific instances of emotional instability which Respondent exhibited within the classroom or school setting.

    
    

29. Rule 6B-4.009, Florida Administrative Code, provides, in part:

    
    

    (4) 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.

    
    

30. In this case, Respondent did not follow specific directives which were reasonable in nature. For example, Respondent was directed not to lock students out of her classroom. Despite this request, Respondent continued to lock disruptive students outside the class. Respondent was directed to attend assertive discipline workshops. Respondent either did not attend as requested or attended but did not participate. Both of these instances characterize Respondent's attitude of indifference toward school administrators. Her attitude became increasingly worse with each evaluation.

    
    

31. It should be noted that school officials took several measures to attempt to remediate Respondent. Each time Respondent reverted to old habits and failures relating to class management. Failure to give notices to parents of failing students and then offering to change the grade was a typical example of Respondent's lack of willingness to follow school policy. Had Respondent continued professional help, shown some remorse, or offered any reasonable explanation for the deficiencies, continued employment might be considered. Under the facts of this case, however, such a recommendation is not reasonable. In this case Respondent received numerous conferences for the record which were designed to apprise Respondent of the areas of her deficiencies and to afford her an opportunity to explain the problems. Further, Petitioner offered

Respondent prescriptive plans to assist the improvement of the areas of deficiencies. The prescription plans did not, however, get completed, and Respondent was not able to correct the problems.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office.

With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination.

DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition.

2. Paragraph 2 is accepted.

3. Paragraphs 3-4 are accepted.

4. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management.

5. Paragraph 6 is accepted.

6. Paragraph 7 is accepted.

7. Paragraph 8 is accepted.

8. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause.

9. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught.

10. Paragraphs 11, 12, and 13 are accepted.

11. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above.

12. Paragraph 15 is accepted.

13. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted.

14. Paragraphs 17 and 18 are accepted.

15. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence.

16. Paragraphs 23, 24, and 25 are accepted.

17. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause.

18. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately.

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition.

2. Paragraph 2 is accepted.

3. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments.

4. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken.

5. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning.

6. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence.

7. See finding made regarding paragraph 5, case no. 88-2368.

8. Paragraph 8 is rejected as contrary to the specific evidence presented.

9. Paragraph 9 is accepted.

10. Paragraphs 10-14 are accepted.

11. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency.

12. Paragraphs 16 and 17 are accepted.

13. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are

    addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted.

14. Paragraph 18 is accepted.

15. Paragraphs 19-22 are accepted.

RESPONDENT DID NOT SUBMIT PROPOSED FINDINGS OF FACT AS TO EITHER CASE.

COPIES FURNISHED:

Marlene Rodriguez 16333 Wood Walk

Miami Lakes, Florida 33014

Frank Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 88-002368

Orders for Case No: 88-002368