STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1611

)

INAM KAWA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer, designated by the Division of Administrative Hearings on December 22, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: William Du Fresne, Esquire

Du Fresne & Bradley

2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue in this case is whether the professional service contract of the Respondent with the School Board of Dade County should be terminated for misconduct in office, gross insubordination and incompetency due to inefficiency.

PRELIMINARY STATEMENT

The Respondent has been employed as a teacher at Kinloch Park Middle School and Miami Edison Middle School under a professional service contract. The School Board suspended the Respondent and initiated dismissal proceedings against her on March 4, 1992, and Respondent requested an administrative hearing. The matter was referred to the Division of Administrative Hearings.

The School Board filed a Notice of Specific Charges on April 13, 1992, alleging Respondent was guilty of misconduct in office, gross insubordination, and incompetency due to inefficiency. At the final hearing the School Board presented the testimony of Joseph Bernes, Yvette Mitchell, Marie Tercier, Sandy Michelet, Irving Rashkover, George Montada, Louise Perez, Kenneth Rogers and Dr. Joyce Annunziata. Exhibits 1-15 were admitted into evidence. Respondent offered three exhibits which were admitted in evidence, and testified on her own

behalf. The transcript was filed on January 19, 1993, the parties filed proposed recommended orders by February 2, 1993. Rulings on proposed findings of fact are made in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, who is 40 years old, became a teacher in 1985 and taught from 1985 through March 4, 1992 as an employee of the School Board of Dade County. She held a professional service contract. Before the 1989-90 school year her teaching performance was adequate. During the 1989-90 school year she was employed at Kinloch Middle School as a sixth grade language arts teacher. Students at Kinloch are predominately of Hispanic background. In May, 1990 she was reassigned to Edison Middle School, where the students are predominantly African-American.

   
   

2. During the 1990-91 school year, Respondent had a difficult time managing the behavior of the children in her classroom. Walking by her classroom at Kinloch, administrators often saw the class in serious disorder, with students running around, yelling, throwing papers, and not doing school work. On one occasion an assistant principal found 40 to 50 paper balls on the floor of her classroom. On another day while the students were engaged in a "paper fight," one of the students broke a glass display case with his head.

   
   

3. One of the assistant principals at the school, Irving Rashkover, performed a formal observation of the Respondent's teaching on March 5, 1991, using the formal observation instrument for assessing teacher performance developed by the School Board of Dade County for all teachers, known as TADS, the Teacher Assessment and Development System. He found that the Respondent was significantly deficient in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. As is required when an observation shows deficient performance, the Respondent was given prescriptions designed to assist her in improving her performance in her areas of deficiency. Prescriptions are also directives which are given by an administrator requiring the teacher to perform the specific prescriptive tasks, which are designed to improve classroom performance. The prescriptions given to Respondent included such things as requiring her to prepare lesson plans and tests to be turned in to another assistant principal, Mrs. J. Reineke.

   
   

4. The Respondent failed to comply with these prescriptions. It would have been difficult for her to perform all the directives, because she was removed from the classroom and assigned to the regional office, not long after the observation of her teaching. She nevertheless failed to perform the tasks that did not require her to be on the school site, such as the preparation of lesson plans for the substitute teacher in her classroom, and recreating her grade book.

   
   

5. Because of her poor work performance, the Board required that the Respondent have a psychological evaluation. That evaluation indicated that she might benefit from psychotherapy, but that she could return to the classroom. The Respondent also requested to change her work location. Both she and school administrators believed that a change in schools might assist her in improving her performance, so in May 1991 she was transferred from Kinloch Park to Miami Edison Middle School. Ordinarily, teachers whose performance has been found deficient and who are therefore working on prescriptive activities to improve their teaching are not eligible for transfer. The approval of this transfer showed that the School Board was making a special effort to accommodate the

   Respondent in an effort to improve her teaching. Respondent was transferred to Miami Edison Middle School as a team teacher. This meant that she did not have primary responsibility for the classroom in which she worked. Another experienced teacher had primary responsibility, and Respondent assisted in teaching. An external performance evaluation was done for Respondent, that is, the TADS evaluation was done by an evaluator who was not an administrator at Miami Edison Middle School. In the new team teaching situation, the external evaluation resulted in an acceptable performance rating for the Respondent. She received an acceptable annual evaluation for the 1990-91 school year, despite her earlier problems that year at Kinloch, the need to remove her from the classroom, assign her to the district office and have the psychological evaluation done before her reassignment to Miami Edison.

   
   

6. Respondent was placed in a self contained classroom at Miami Edison for the 1991-92 school year. Unfortunately, the deficiencies that she had exhibited at Kinloch returned. A TADS observation of her teaching was done on October 24, 1991. The evaluation found her deficient in planning, classroom management, techniques of instruction and assessment techniques. She was given prescriptive activities to help her to remediate these deficiencies to complete by November 21, 1991, but she did not do them, even though the matter was brought to her attention in a memo dated December 3, 1991.

   
   

7. The Respondent was wholly unable to control her classroom. Her students essentially engaged in free-for-alls during her class periods. They would not remain in their seats, they were talking, running, throwing paper balls at each other, going in and out of the classroom and engaging in fights. While this disorder was taking place around her, Respondent merely sat at her desk and did nothing to control it. Simply put, Respondent did not teach. Her inability or disinclination to require discipline of her students made it impossible for anyone to teach in the circumstances prevailing in her classroom. This was coupled with other unusual behavior by the Respondent: she directed her students to make up and insert their own grades in their progress reports. This is wholly unacceptable conduct by a teacher.

   
   

8. Administrators at Miami Edison became aware of the disarray in Respondent's classroom because of complaints by students and parents. Her classroom had been on the second floor, but when students were seen sitting on the window sill, the school administration moved her classroom to the first floor, near the main office. It was hoped that the move would make her classroom more safe for her students, since if she failed to control them they would not be in danger from sitting in upper floor windows, and the proximity to the main office was designed to help improve student behavior since they would be so close to the school administration. The misbehavior, however, continued unabated in her classroom. The level of disorder in the classroom and the consequent lack of teaching caused continuing parental complaints to administrators about the Respondent's performance.

   
   

9. Another TADS classroom observation was performed by the school's principal in the Respondent's classroom on November 22, 1991, the day after her prescriptive activities from the October observation were to have been completed. Her performance again was found deficient in classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Additional prescriptions were issued to Respondent but again she did not complete these either. When these failures were again brought to her attention her response to the administration was that "she didn't feel it was necessary" to comply with the prescriptions (Tr. 87). On December 19, 1991, the principal had a conference with Respondent on her failure to complete the

   prescriptive activities assigned after the two evaluations in October and November 1991. The principal followed up again, and specifically told the Respondent on January 6, 1992 that unless she complied with the prescriptions, he would recommend that she not be reappointed as a teacher.

   
   

10. The disarray in her classroom continued. School security had to go to her classroom to break up fights. Continuing complaints by parents came both to the school administration and to the central administration of the School Board. The photographs of her classroom taken on December 20, 1991, are almost unbelievable (School Board Composite Exhibit 12). The classroom looks as if it were the scene of a riot. Shortly after that day, Respondent was removed as a classroom teacher.

    
    

11. During a formal "conference for the record" with the Director of the Office of Professional Standards of the school board, Dr. Joyce Annunziata, in January 1992, the Respondent stated that student behavior was the responsibility of the students, not the teacher; the teacher's duty is to teach and the student's duty is to learn, but if students don't want to learn there is nothing the teacher can do about it; and, that she was powerless to change the student's behavior.

    
    

12. The principals of Kinloch Middle School and Edison Middle School both testified that in their opinion, which is credited, the Respondent was incompetent as a teacher, and that her failure to maintain discipline in her classroom after receiving assistance in doing so through prescriptions for improved classroom management constituted misconduct in office and gross insubordination. Neither would willingly reemploy her as a teacher at their schools. The repeated complaints about her classes, rising from the school level to that of the central district administration, is further persuasive evidence that Respondent has lost her effectiveness as a teacher in the community.

    
    

13. The Respondent has failed to create an effective and safe learning environment for students in her classrooms. Based on her prior acceptable evaluations, she knows how to keep order in her classes. She has also demonstrated by her repeated failure to teach and impose classroom discipline that she is now incompetent to teach. Moreover, her repeated refusal to comply with prescriptions given to improve her classroom performance by administrators at Kinloch and Miami Edison Middle Schools, which are specific directions which have been given to her by administrators with proper authority, constitutes gross insubordination.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

15. The Respondent has a professional service contract with the School Board of Dade County. A teacher who holds a professional service contract may only be dismissed during the term of the contract for "just cause." Section 231.36(1)(a), Florida Statutes (1991). That term includes but it is not limited to "misconduct in office, incompetency, and gross insubordination. . ." Section 231.36(4), Florida Statutes (1991). These terms each have been further defined by rule. Misconduct in office has this definition:

    
    

    Misconduct in office is defined as a violation of the Code of Ethics of the Education

    Profession as adopted in Rule 6B-1.001, F.A.C. 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. Rule 6B-4.009(3), Florida Administrative Code.

    
    

16. "Gross insubordination" is defined in this way:

    
    

    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. Rule 6B-4.009(4), Florida Administrative Code.

    
    

17. Incompetency is defined in the following manner:

    
    

    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 or more of the following:

    1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); . . . Rule

       6B-4.009(1), Florida Administrative Code.

       
       

18. The School Board of Dade County has proven that the Respondent is guilty of misconduct in office, gross insubordination, and incompetency.

    
    

    Misconduct in Office

    
    

19. By continuously failing to control the behavior of students in her classroom, and repeatedly permitting an unruly environment to prevail, the Respondent failed to provide a safe learning environment for her students. Respondent repeatedly refused to recognize her teaching deficiencies and rejected efforts to assist her with her difficulties through prescriptions given to her by administrators. There simply is nothing more the administration could do to attempt to remediate her deficiencies. The Respondent has lost the respect and confidence of parents, her students, and her colleagues. Her failure or inability to maintain discipline resulted in an environment harmful to learning, under Rule 6B-1.006(3)(a), Florida Administrative Code, and exposed her students to unnecessary safety risks, such as the incident at Kinloch where a student's head broke a glass display case, and at Miami Edison, where security officers had to come to her classroom to break up fights, and where her classroom had to be moved from the second floor because students were sitting on

    the window sills. She is guilty of misconduct in office as defined in Rule 6B- 4.009(3), Florida Administrative Code.

    
    

    Gross Insubordination

    
    

20. The repeated refusals to comply with prescriptions given to her in order to improve her classroom management constitutes gross insubordination.

    The prescriptions were direct orders, which were reasonable in nature and given with proper authority. The administrations of two schools offered assistance to Respondent to improve her teaching but she flatly rejected it, by failing to do the tasks required in the prescriptions. Her conduct constitutes gross insubordination as defined in Rule 6B-4.009(4), Florida Administrative Code.

    
    

    Incompetency Due to Inefficiency

    
    

21. Despite repeated professional evaluations of her teaching performance which found serious deficiencies in her teaching, coupled with prescriptions to assist her in improving her performance, the Respondent has refused to perform her teaching duties by her failure to maintain order in her classes. Without order it was impossible for her to teach or for her students to learn. There is no reason to believe that any additional efforts to assist Respondent in remediating her deficiencies in classroom management would be effective. By repeated failure to perform her duties as a teacher she is guilty of incompetency as the result of inefficiency under Rule 6B-4.009(1), Florida Administrative Code.

    
    

22. Respondent's argument that she cannot be dismissed because the Board has not followed the procedure for termination found in Section 231.36(3)(e), Florida Statutes (1991), is not well founded. A teacher with a professional service contract can be removed "during the term of the contract" for just cause. Section 231.36(1)(a), Florida Statutes. The procedure she relies on is the procedure for non-renewal at the end of a contract term. The Board has proven adequate grounds for its suspension and removal of Respondent during the term of her contract.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade

County terminating her employment as a teacher for misconduct in office, incompetency and gross insubordination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1993.

WILLIAM R. DORSEY, JR.

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 22nd day of February 1993.

APPENDIX

The findings proposed by the School Board have been accepted. Findings proposed by the Respondent:

Paragraphs 1-3 have been accepted.

Paragraphs 5-8 are rejected for the reasons stated in the Findings of Fact dealing with her ineffectiveness, gross insubordination and incompetency by reason of inefficiency. It is true that no annual evaluation of the Respondent's teaching performance showed an unacceptable evaluation. This occurred because she was transferred to the district office and removed from the classroom for a substantial period of time in 1991, and the annual evaluation could not be one finding unsatisfactory performance since, by the end of the year, she was performing satisfactorily in the team teaching situation with another teacher (Tr. 105). She may be able to perform adequately in that situation, but the School Board is not required to employ her as a teacher who needs a guardian in the form of another teacher in her classroom. A competent teacher keeps order in her class herself.

COPIES FURNISHED:

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

William Du Fresne, Esquire Du Fresne & Bradley,

2929 Southwest Third Avenue Miami, Florida 33129

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Octavio J. Visiedo, Superintendent Dade County Public Schools

Office of Professional Standards 1444 Biscayne Boulevard

Suite 215

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 92-001611

Orders for Case No: 92-001611