STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0793

)

WILLIAM E. FIELDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 4, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patricia D. Bass, Esquire

1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Respondent's 30-day suspension for gross insubordination and willful neglect of duty should be sustained.

PRELIMINARY STATEMENT

On March 22, 1989, Respondent's employment as a continuing contract teacher was suspended for 30 days by the Dade County School Board for alleged gross insubordination and willful neglect of duty. Respondent requested a formal hearing on his suspension by letter dated March 28, 1989. On February 7, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. Thereafter, on March 14, 1990, three weeks before hearing, the School Board filed a Notice of Specific Charges detailing the acts of misconduct allegedly committed by Respondent that led to his suspension.

At hearing, Petitioner presented the testimony of six witnesses and offered

14 exhibits into evidence. Respondent testified on his own behalf. He presented no further testimony, but he did offer one exhibit into evidence. All of the exhibits offered into evidence by the parties were received by the Hearing Officer.

At the close of the hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received a copy of the hearing transcript on May 14, 1990. On May 21, 1990, the parties filed proposed recommended orders. The parties' proposed recommended orders have been carefully considered by the Hearing Officer. The proposed findings of fact set forth in these proposed recommended orders are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Respondent has been a classroom teacher in the Dade County public school system since 1964.

   
   

2. During the 1988-89 school year, he was employed under a continuing contract and assigned to Homestead Senior High School, where he taught social studies.

   
   

3. Percy Oliver has been the Principal of Homestead Senior High School for the past six years. For the last five years, Reid Bernstein has been his Assistant Principal for Curriculum.

   
   

4. As Principal, Oliver exercises supervisory authority over all of the School Board employees assigned to the school. Bernstein assists Oliver in supervising the school's instructional personnel.

   
   

5. In accordance with the School Board's Teacher Assessment and Development System (TADS), both Oliver and Bernstein have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance.

   
   

6. On October 20, 1988, Bernstein conducted a formal observation of one of Respondent's social studies classes. Following her observation, in accordance with Dade County School Board policy, Bernstein prepared a written post- observation report. In her report, Bernstein noted that, Respondent's performance was deficient in the areas of classroom management and instructional technique and she therefore directed that Respondent take the following remedial action by November 23, 1988:

   
   

   Observe 2 exemplary Social Studies teachers. Write a summary after each observation on the techniques used to keep the students on-task. Submit each summary to the APC [Assistant Principal for Curriculum).

   Have the Social Studies coordinator work with you on off-task behavior and complete the attached observation sheet. (pp 91-92)

   Ask the department chairperson to observe you once a week and give you feedback on off-task behavior. He can also complete an observation survey.

   Have one of your classes videotaped. Observe the tape yourself and see what you do and do not do with off-task students

   Read pp. 221-244 in the TADS RX Manual. On page 231 use the four questions and answer them on your lesson plan for

   day of the week through November 21, 1988.

   Have the Social Studies department chairperson observe you and complete the sequencing checklist attached. The chairperson will then go over it with you after the observation.

   Complete activities 2 & 3 on P. 260 of the TADS RX Manual (see attached). Neet with the administrator after the class and compare lists of confused students. After you observe another Social studies teacher, meet with him and go over the students who appeared to be confused and how he attempted to clear up their confusion.

   
   

   The report recommended that Respondent use the following persons as "resources" in taking such remedial action:

   
   

   Coordinator of Social Studies Department Chairperson

   Exemplary Social studies teachers Assistant Principal for Curriculum Audio Visual Specialist

   
   

7. Bernstein had a post-observation conference with Respondent on October 25, 1988. During the conference, Bernstein gave Respondent a copy of her report and explained its contents to him. Respondent indicated to Bernstein that he would take the remedial action prescribed in the report. He did not mention to Bernstein that he anticipated having any difficulty in completing the prescribed activities within the allotted time. Nor did he complain to Bernstein that the prescribed activities were unreasonable. Moreover, he made no suggestion that Bernstein change any of these prescribed activities.

   
   

8. Bernstein's directive that Respondent complete these prescribed activities by November 23, 1988, was a reasonable one with which Respondent was capable of complying. Nonetheless, Respondent failed to take any of the remedial action by the November 23, 1988, deadline imposed by Bernstein. His inaction was intentional, not inadvertent. He knew what he was required to do and was capable of doing it, but made a conscious decision to spend his time on other matters.

9. Respondent was again formally observed on November 29, 1988. The observation was done by Principal Oliver. Oliver prepared a post-observation report following the observation. In his report, Oliver noted that Respondent was deficient in the areas of preparation and planning and classroom management and he therefore directed that Respondent take the following remedial action by January 10, 1989:

   
   

   For the next two weeks compare the objectives and activities you planned with those actually accomplished and completed. At the end of each lesson make a written note of each time you deviated or markedly digressed from the plan and provide a brief reason for it. At the end of each week these notes should be discussed with the assistant principal of curriculum and a

   should b e given to the assistant principal of curriculum to be used as an aid in plotting your progress.

   Observe 2 exemplary Social Studies teachers. Write a summary after each observation on the techniques the teacher used to keep the students on- task. Submit each summary to the APC) Have the Social Studies coordinator work with you on off-task behavior and complete the attached observation sheet. (pp 91-92)

   Ask the department chairperson to observe you once a week and give you feedback on off-task behavior. He can also complete an observation survey.

   Have one of your classes

   Observe the tape yourself and see what you do and do not do with off-task students.

   The report recommended that Respondent use the following persons as "resources" in taking such remedial action:

   
   

   Assistant Principal of Curriculum Department Head

   Subject Area Coordinator

   Exemplary Social Studies Teach.ers Audio Visual Specialist

   
   

   Oliver's directive that Respondent complete these prescribed activities by January 10, 1989, was a reasonable one with which Respondent was capable of complying.

   
   

10. Oliver had a post-observation conference with Respondent on December 5, 1988. During the conference, Oliver gave Respondent a copy of his report and explained its contents to him. Respondent indicated to Oliver that he would take the remedial action prescribed in the report. He did not mention to Oliver that he anticipated having any difficulty in completing the prescribed

    activities within the allotted time. Nor did he complain to Oliver that the prescribed activities were unreasonable. Moreover, he made no suggestion that Oliver change any of these prescribed activities.

    
    

11. On December 8, 1988, Oliver held a midyear conference-for-the-record with Respondent to further discuss with him, in a formal setting, his deficiencies. Bernstein and a union representative were also present at the conference. Following the conference, Oliver sent a memorandum to Respondent. The memorandum, which was dated December 8, 1988, read as follows:

    
    

    The following summarizes a conference- for-the-record held with you, Mr. Petta, Mrs. Bernstein and myself on Thursday, December 8, 1988. In this conference I discussed the following three things with you:

    1. You are currently on prescription and if you continue in the prescriptive mode your annual evaluation will be unsatisfactory and this would adversely affect your future employment with the Dade County Public Schools.

    2. If you end the year unsatisfactory, you are not eligible for next year's financial increase.

    3. You were observed on October 20, 1988 with a November 23, 1988 deadline by Mrs. Bernstein and given a prescription for categories III and IV. You did not complete any of the prescriptive activities. This is insubordination and results in you being unsatisfactory in Category VII.

       The conference concluded by you being directed to complete all prescriptive activities on or before January 10, 1989, in order to be remediated in Category VII.# 1/

       
       

12. Respondent received `the memorandum and signed it on December 9, 1988.

    
    

13. Sometime after the conference-for-the-record, Respondent advised Bernstein in writing that on December 6, 1988, he had observed an "exemplary" social studies teacher at the school and that on December 7, 1988, he. had observed another "exemplary" social studies teacher at the school.

    
    

14. Except for observing these two "exemplary" social studies teachers, Respondent did not complete any of the activities prescribed by Bernstein and Oliver by the January 10, 1989, deadline he had been given.

    
    

15. In the two months that followed the expiration of the January 10, 1989, deadline, the school administration received complaints from other teachers, parents and students regarding the misbehavior of students in Respondent's classes. As a result of these complaints, Respondent was directed by his superiors, as he had been instructed in the past, to control his students. Notwithstanding these directives, Respondent failed to maintain

    control in his classroom. His failure to control his students, however, was the product of his inability to do so, not of any intention or desire on his part to disobey his superiors.

    
    

16. By March 14, 1989, Respondent Still had not completed all of the activities that had been prescribed by Bernstein and Oliver. He had had more than enough time to finish these activities and had understood that he was under an obligation to complete them in a timely fashion. Respondent, however, in defiance of the directives he had been given, had made a conscious decision to devote his time to other endeavors which he had deemed more important. He had failed to comply with these directives, not because of any inability on his part, but because he had been unwilling to do so.

    
    

17. Respondent's lack of compliance with Bernstein's and Oliver's directives were the subject of a conference-for-the- record that was held on March 14, 1989. The conference was attended by Respondent, a union representative, Oliver, Bernstein, the School Board's Personnel Director, and the Director of the School Board's Office of Professional Standards.

    
    

18. On the day of the conference, Respondent sent a letter to Oliver, which read as follows:

    
    

    Please allow me more time to finish the prescription activities that were prescribed by you and Mrs. Bernstein.

    Immediately after the prescription by you I had to prepare two one hundred word exams for the mid year. Now I find that I am getting ready for progress reports in another week and a half. I have been calling homes of students who need to improve and the ones I can't get in touch with I will write.

    There are also the lesson plans that need to be kept up with you and I have kept up.

    What I would really like is to change the prescription. I think that it would benefit me more if I took a course in discipline or management of students in the summer. That way I could concentrate my full efforts on making improvements in my classes at the present time.

    I have really tried to get the activities done in the prescriptions, but if it was changed I feel it would benefit me more. The decision is up to you.

    
    

19. This request, which was made more than two months after the expiration of the January 10, 1989, deadline, was not granted. A recommendation was made to take disciplinary action against Respondent for his failure to comply with administrative directives. The matter was considered by the Dade County School Board at its March 22, 1989, meeting. After considering the matter, the Board took action to suspend Respondent for a period of 30 days for gross

    insubordination and willful neglect of duty. At the time of his suspension, Respondent had still not completed all of the remedial activities that Bernstein and Oliver had prescribed.

    
    

    CONCLUSIONS OF LAW

    
    

20. An instructor who holds a continuing contract may be suspended or dismissed at any time during the school year pursuant to Section 231.36(4)(c), Florida Statutes, for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."

    
    

21. "Gross insubordination or willful neglect of duty," as used in Section 231.36, Florida Statutes, is defined in Florida Administrative Code Rule 6B- 4.009(4) as

    
    

    ... a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

22. In the instant case, Petitioner has alleged that Respondent was guilty of "gross insubordination" and "willful neglect of duty" during the 1988-89 school and that therefore his 30-day suspension was authorized by Section 231.36(4)(c), Florida Statutes.

    
    

23. It was Petitioner's burden to establish Respondent's guilt by a preponderance of the competent, substantial evidence adduced at hearing. See Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986), cause dismissed 492 So.2d 1330 (Fla. 1986). A review of the record evidence reveals that Petitioner met its burden of proof.

    
    

24. Respondent was directed by Assistant Principal Bernstein and Principal Oliver to complete certain remedial activities within a prescribed period of time. The directives were reasonable and were within Bernstein's and Oliver's authority to give. Although capable of complying with these directives, Respondent, on a continuing basis, intentionally refused to do so, opting instead to spend his time on other matters.

    
    

25. Respondent therefore was guilty of gross

insubordination and willful neglect of duty, as charged,#2 / and, consequently, his 30-day suspension should be sustained.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the school Board of Dade County issue a final order sustaining Respondent's 30-day suspension.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of May, 1990.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.

ENDNOTES

1/ Category VII of the Teacher Assessment and Development System relates to professional responsibility. An unsatisfactory rating in this category is given to teachers who defy administrative directives and fail to follow School Board rules and regulations.

2/ Because a finding of gross insubordination and willful neglect of duty may be based upon Respondent's failure to timely complete the activities prescribed by Bernstein and Oliver in their post- observation reports, it is unnecessary to consider if Respondent's failure to comply with the directives that he control his students also constituted gross insubordination and willful neglect of duty.

3/ The deadline was January 10, 1989, not January 10, 1990.

4/ The deadline was January 10, 1989, not January 10, 1990.

5/ The preponderance of the evidence establishes that during the course of the school year Respondent made at least some effort to control his students.

6/ While there may have been occasions during informal and formal observations that Respondent did not immediately respond to the inappropriate behavior of his students, that is not to say that he made no attempt at any time to correct their behavior. Among the things he did in an attempt to improve the conduct of the unruly students in his class was to contact their parents.

7/ Even had he completed the remedial activities prescribed by Bernstein and Oliver, Respondent may still have been unable to control the students in his classes.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0793

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact

1. Rejected because it adds only unnecessary detail.

2-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

4-7. Rejected because they add only unnecessary detail.

1. Accepted and incorporated in substance

2. Rejected because it adds only unnecessary detail.

3. Accepted and incorporated in substance.

4. First sentence: Rejected because it adds only unnecessary detail; Second and third sentences: Accepted and incorporated in substance.

5. First sentence: Rejected because it adds only unnecessary detail; Second and third sentences: Accepted and incorporated in substance.

13-15. Accepted and incorporated in substance.

1. First sentence: Rejected because it adds only unnecessary detail; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive, competent substantial evidence.#3 /

2. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance; Fourth sentence:: Rejected because it is not supported by persuasive, competent substantial evidence.#4 /

18-20. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.

2. First through sixth sentences: Rejected because they add only unnecessary detail; Seventh and eighth sentences: Accepted and incorporated in substance.

3. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail.

4. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it adds only unnecessary detail; Fourth sentence: Rejected because it is contrary to the greater weight of the evidence.#5 /

25-26. Rejected because they add only unnecessary detail.

1. First sentence: Rejected because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence; Second sentence: Accepted and incorporated in substance.

2. Rejected because it is more in the nature of a summary of evidence adduced at hearing and argument regarding the weight to be given that evidence than a finding of fact based upon such evidence.

3. Rejected because it adds only unnecessary detail.

4. First sentence: Rejected because it adds only unnecessary detail; Second sentence: To the extent that this proposed finding suggests that Respondent failed to control his students because he wanted to defy the directives he had been given to maintain control in his classroom, it has been rejected on the ground that it is not supported by persuasive, competent substantial evidence;

   Third sentence: Rejected because it is

   contrary to the greater weight of the evidence.#6 /

5. Rejected because it adds only unnecessary detail.

6. First, second, third and sixth sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance.

7. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because they add only unnecessary detail.

8. First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: Rejected because it is more in the nature of argument regarding the weight to be given evidence adduced at hearing than a finding of fact based upon such evidence.

9. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive, competent substantial evidence.#7 /

10. Rejected because it is more in the nature of a summary of evidence adduced at hearing and argument regarding the weight to be given that evidence than a finding of fact based upon such evidence.

37-39. Accepted and incorporated in substance. Respondent's Proposed Findings of Fact

1-5. Accepted and incorporated in substance.

1. Rejected because it is contrary to the greater weight of the evidence.

2. Rejected because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.

3. Accepted and incorporated in substance to the extent that it asserts that Respondent's failure to comply with the directives that he control his students "was due to inability rather than a willful refusal." Rejected as contrary to the greater of the evidence to the extent it states that Respondent's failure to timely complete the remedial activities that Bernstein and Oliver had prescribed in their post-observation reports "was due to inability rather than a willful refusal."

COPIES FURNISHED:

Patricia D. Bass, Esquire Dade County School Board 1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

William Du Fresne, Esquire Du Fresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Paul W. Bell Superintendent of Schools Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 90-000793

Orders for Case No: 90-000793