STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF SEMINOLE ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3012

)

JAMES A. CONNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 8, 1992, in Sanford, Florida.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

STENSTROM, MCINTOSH, ET AL.

Post Office Box 4848 Sanford, Florida 32772-4848

For Respondent: Thomas W. Brooks, Esquire

MEYER AND BROOKS, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's professional service contract should be renewed as provided in Subsection 231.36(3)(e), Florida Statutes.

This requires a determination of whether the Petitioner provided sufficient assistance and in-service training opportunities and evaluated Respondent periodically to apprise him of his progress, and whether Respondent corrected certain noted performance deficiencies.

PRELIMINARY STATEMENT

On or about April 30, 1992, Richard Wells, acting superintendent for the School Board of Seminole County advised James Conner that his professional service contract would be recommended for non-renewal.

At the request of Respondent, made on May 5, 1992, the School Board referred this case to the Division of Administrative Hearings for a formal Section 120.57, Florida Statutes, hearing.

The hearing, originally scheduled for September 2, 1992, was continued once for good cause on the joint request of the parties.

At the hearing, the School Board presented testimony of Louis Daniel Pelham, Elizabeth Dershimer, Ph.D., Roger Gardner, James Buckman and John Reichert. Petitioner's exhibits #1-18 and 20-27 were received in evidence. Exhibit #19 was withdrawn.

James Conner testified in his own behalf and presented the additional testimony of Linda Cronin-Jones, Ph.D., Dennis Davis, Steven White and Helene Samango. Respondent's exhibits #1-4 were received in evidence.

The transcript was prepared and filed and the parties filed proposed recommended orders and briefs or memoranda on December 1, and December 7, 1992.

The findings of fact proposed by each party are addressed in the attached Appendix.

FINDINGS OF FACT

1. At the time that he was recommended for non-renewal, Respondent, James

   A. Conner, had been employed by the School Board of Seminole County (Board) as a graphic arts teacher at Sanford Middle School for approximately seventeen years.

   
   

2. Daniel Pelham has been principal at Sanford Middle School for the past twenty-three years.

On March 26, 1991, Pelham advised Conner, in writing, that he was being recommended for return to annual contract status for the 1991-92 contract year, based on unsatisfactory performance in the following areas:

1. Deficient Classroom Management

   
   

   Failure to maintain established procedures. Failure to maintain appropriate and consistent disciplinary procedures.

   Failure to use clearly defined classroom procedures. Failure to utilize time efficiently.

   
   

2. Deficient Teaching Skills

   
   

   Failure to promote effective classroom interaction. Failure to exhibit rapport and understanding with students.

   
   

   (Petitioner's Exhibit #4)

   
   

3. The deficiencies noted by Pelham had been developing over a period of approximately four or five years and were pointed out on prior evaluation forms. In particular, Pelham was concerned that there were an inordinate number of student discipline referrals being made by Conner. Pelham also personally observed problems in classroom management in visits he made to Conner's classes.

   
   

   Conner's classes in the vocational program were typically smaller than those in the academic programs. Over a school day of five periods, he had a

   total of sixty to seventy-five students, and some of his classes contained only nine or ten students.

   
   

4. As a result of proceedings not relevant to this case, the parties entered a stipulation that the March 26, 1991 recommendation would be considered a notice of unsatisfactory performance required to terminate a professional service contract pursuant to Section 231.36(3)(e), Florida Statutes (1991).

   
   

   The effect of the stipulation was to provide Conner with an opportunity to remedy his deficiencies as provided in a new law governing employment rights of classroom teachers.

   
   

5. By the time Pelham's recommendation was made, he felt that Conner had the capacity to improve, but the principal was not optimistic that the improvements would be made.

   
   

6. As required by law, an assistance plan was developed to assist James Conner in correcting the deficiencies provided in the notice described above. Daniel Pelham assigned Roger Gardner, his assistant principal, to be a mentor to Conner; and he removed Gardner from any supervisory role in an attempt to make the relationship more helpful.

   
   

   The assistance team was comprised of Dan Pelham; Roger Gardner; John Reichert, the Board's Director of Personnel; Cliff Duncan, Director of Staff Development; and Betty Hogle, Director of Vocational Education. The plan was provided to James Conner in September 1991.

   
   

7. Helene Samango was Conner's representative from the Seminole Education Association, the teachers union. She elicited the assistance of Linda Cronin- Jones, Ph.D., an associate professor of instruction and curriculum at the University of Florida College of Education, to review the performance assistance plan.

   
   

   Dr. Cronin-Jones provided a critique of the plan, with suggestions that were, in turn, provided to Mr. Reichert the second week of December 1991. Dr. Cronin-Jones' suggestions were incorporated in the plan at the next meeting of the assistance team on January 13, 1992.

   
   

8. The additions to the plan included a peer teacher selected by Mr. Conner, in addition to the one already identified in the plan, and included videotaping Conner's class sessions to be used as a tool for Conner and his peers to critique his work and to make suggestions for further improvement.

   
   

9. The content of the assessment documents used to evaluate Conner's performance was established by statute. The assessment plan itself was developed four or five years ago by a committee of school board staff, including teachers, principals and union representatives. The plan has been approved by the State Department of Education every year thereafter.

   
   

10. The performance assistance plan developed for James Conner was adequate and appropriate to address the specific deficiencies previously noted in his performance. He took advantage of the required activities, including review of in-service training material. He was not, however, responsive to the guidance attempts by Roger Gardner, whose task, having known Conner for many years, was to help him with specific strategies to reach the goals set up in the plan. For example, Gardner gave Conner a few articles to read that supported some of the things he was being asked to do. The articles related to specific

    problems of middle school children and ways of dealing with their discipline needs. Conner was to respond back to Gardner after reading the articles. He apparently read them, but did not respond as asked.

    
    

11. Another assignment to Conner was to draft his classroom management plan. He and Gardner met on preliminary drafts several times, but it was not finally completed until December 19, 1991. The meetings were scheduled by Gardner, and Conner simply did not take the initiative that would have reflected an effort to cooperate.

    
    

12. James Conner was observed or formally assessed on several occasions over the remedial year.

Bettie Hogle, Director of Vocational and Technical Education for the School Board, observed him from the beginning of the first period until 10:35 a.m. on October 28, 1991. She noted the following:

1. There was no clear focus on the day's learning activities at the beginning of class.

2. Student behavior was poor. One student was sent to the office for discipline at the start of class. I was not sure why he was singled out when others were misbehaving as well.

3. Equipment and materials were stacked around the lab. This cluttered atmosphere is not conducive to student learning.

4. On the positive side, Mr. Conner exhibited good questioning techniques in teaching the lesson.

5. He complimented the students on the good behavior they demonstrated in groups earlier in the week.

6. After students began working on projects, he circulated around the room and provided individual assistance.

(Petitioner's Exhibit #11)

1. Daniel Pelham observed Conner's seventh grade class for thirty-five minutes on November 11, 1991. There were five students in the class. The assessment form notes unsatisfactory ratings in six areas of classroom management and teaching skills. Two students were observed talking during most of the observation, without intervention by the teacher. The form also noted "not much change here" under the category, "Exhibits rapport and understanding with students", with the comment, "very high discipline referral. To date 11/11, total of 46". (Petitioner's Exhibit #12)

   
   

2. On December 9, 1991, Pelham sent Conner a memorandum regarding the continued clutter in his classroom, storage room and office, and directed him to remove the items not in use in his program and to get the items off the floors.

   
   

3. A follow-up memorandum was given to Conner on January 22, 1992, noting that the papers and boxes were still scattered on the floor of his office and storage room. The memorandum also noted a positive improvement in classroom management observed on January 9, 1992. The nine students observed that period were on task and behaved.

   
   

4. Pelham's next assessment is dated March 24, 1992 and reflects a thirty-five minute observation of Conner's seventh grade graphic arts class on March 18, 1992. There were ten students present. Five areas under classroom

   management and teaching skills were found unsatisfactory. No significant change in management style was found. Students spent a lot of time just sitting. One student completed his project and sat for 30 minutes. The students were told "just follow directions". (Petitioner's Exhibit #8)

   
   

5. Pelham's annual assessment of Conner is dated April 24, 1992 and finds him unsatisfactory in these four areas under classroom management and teaching skills:

   
   

   "Uses clearly defined classroom procedures"; "Disciplinary procedures established and used"; "Promotes effective classroom interaction"; and "Exhibits rapport and understanding with students".

   
   

   Four or more unsatisfactory ratings constitute an unsatisfactory

   evaluation according to the instructional personnel plan. (Petitioner's Exhibit #6)

   
   

   The areas found unsatisfactory are critical to the effective functioning of a teacher.

   
   

6. The deficiencies noted in the above-described assessments or evaluations are evident in the videotapes of Conner's classes, recorded in December 1991 and March 1992. Those sessions are typical examples of Conner's performance at the time that they were taped; they reflect the methodologies and strategies he was using and attempting to implement from the assistance plan.

   
   

7. The December session shows constant talking by the students, with Conner lecturing and attempting to demonstrate over the low din. The class was small, approximately ten students, but they were notably disengaged, except during brief periods when the equipment was plotting designs. Conner ignored the talking and forged on with the lesson.

   
   

8. The March sessions were also small classes and the students were not as disruptive. Explanations and demonstrations of equipment were made with the teacher's back to the students. Again, the students were primarily disengaged, some with their heads on the tables. Several times, Conner urged them, "you might want to write this down", but not the first student picked up a pencil, and some seemed not to have pencils or materials on their tables.

   
   

   A child with his hand up was not recognized for an extended period and eventually Conner's response to his question was a flippant, "Because it's there".

   
   

   There was some attempt to engage the students in discussion about what was learned in other classes or about trips to Epcot or Busch Gardens, and there was some attempt to compliment students with, "Congratulations and a warm fuzzy to the stars who made 100"; but in spite of the size of the class, there was very little individual interaction. Students were rarely addressed by name or called to respond individually.

   
   

   For the most part, the students appeared unchallenged or simply bored.

   
   

9. The Board's expert witness described the classroom style as lack of "with-it-ness". Although Conner was friendly or kind, class time was wasted and the students' education was not advanced.

10. Over the 1991-92 school year, James Conner issued approximately 110 student discipline referrals, exhibiting some improvement over prior years, but still an excessive amount based on the number of his students, and reflective of a failure of classroom management and poor rapport with the students.

    
    

    His explanation that his students were particularly disruptive and he had to be strict to keep them from hurting themselves on the dangerous equipment, is not substantiated by the observations of the principal or by the compelling evidence of the videotaped sessions. The classroom unrest was more apparently the painful consequence of student boredom and failure of the teacher to engage his enviably small classes in the subject matter.

    
    

11. Conner's theory that his principal gave up on him too early and failed to provide the equipment he needed, or had a personality conflict, was not developed with competent, credible evidence.

    
    

    The assistance plan, the suggestions and guidance offered by Roger Gardner, and the peer assistance of two outstanding teachers were appropriate and adequate.

    
    

    Daniel Pelham did not recommend Conner's transfer to another school because he properly wanted to avoid passing on a problem to someone else.

    
    

12. James Conner did improve his performance over the remedial year. Six unsatisfactory charges were reduced to four. It is impossible to determine whether more improvement would have been made with more time. He was, however, given the time required by law, and was given the assistance required to make improvements. The principal's assessment was valid and the superintendent's recommendation that he not be issued a new professional service contract was timely and is appropriate.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes, and Subsection 231.36(3)(e)4.b., Florida Statutes.

    
    

14. Principals are responsible for supervision of the operation and management of schools and the submission of personnel recommendations to the superintendent. Section 231.085, Florida Statutes.

    
    

15. Teachers are to be evaluated in the performance of their duties at least once each year, using assessment criteria meeting requirements established by law. Section 231.29(2), Florida Statutes.

    
    

16. As a principal, Daniel Pelham was responsible for the supervision of Respondent and was required to perform his annual assessment required by Section 231.29(2), Florida Statutes, and Section 231.29(4), Florida Statutes.

    
    

17. In the event it is determined that a teacher is not performing his or her duties in a satisfactory manner, as determined by an assessment done in accordance with Section 231.29(2), Florida Statutes, the person performing the assessment is required to notify the teacher of his or her unsatisfactory performance, confer with the teacher, make recommendations with respect to the specific areas of unsatisfactory performance, and provide assistance in helping the teacher correct the deficiencies within a prescribed time. Section 231.29(2)(d), Florida Statutes.

18. A teacher who has been determined not to be performing his or her duties in a satisfactory manner, as measured by an annual assessment performed pursuant to Section 231.29(3), Florida Statutes, and who is not recommended for renewal of his or her contract by their supervisor, pursuant to Section 231.29(4), Florida Statutes, must be notified that he or she may be terminated if the noted deficiencies are not corrected during the subsequent year of employment. Section 231.36(3)(e), Florida Statutes.

    
    

19. At the conclusion of the 1990-91 school year and within the prescribed time, Respondent was charged with unsatisfactory performance as determined under the provisions of Section 231.29, Florida Statutes, and he was notified that if he did not correct his performance deficiencies within the 1991-92 school year, his professional service contract of employment with the School Board of Seminole County, Florida, would be terminated.

    
    

20. As required by Subsection 231.36(3)(e)3., Florida Statutes, during the 1991-92 remedial year, Respondent was provided with assistance and in-service training opportunities to help him correct his noted performance deficiencies. He was evaluated periodically to apprise him of any progress. Respondent failed to correct his noted performance deficiencies by the end of the remedial year, the 1991-92 school year. Those performance deficiencies are sufficient to support non-renewal. Although the annual assessment found James Conner satisfactory in a majority of the areas, those areas where he was unsatisfactory are essential to his function as a teacher.

    
    

21. The responsibility of the School Board to a deficient teacher is to provide an assistance plan that the teacher may then implement in an effort to correct his or her performance deficiencies. The burden of improvement is on the teacher. The fact that a teacher fails to seriously implement an assistance plan or is not successful in correcting his or her deficiencies does not mean that the plan is inadequate, that the School Board has not met its obligation under Section 231.36(3)(e), Florida Statutes, or that the teacher may not be terminated. It may simply mean that the teacher was unable to correct his or her deficiencies in the time provided by law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Seminole County enter its Final Order denying renewal of James Conner's professional service contract.

RECOMMENDED this 26th day of January, 1993, in Tallahassee, Florida.

MARY CLARK

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 26th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3012

The following constitute rulings made on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. Adopted in paragraph 2.

2. Adopted substantially in paragraph 1. Respondent testified that he was employed 17 years (transcript, p.304).

3. Included in Preliminary Statement.

4. Adopted in paragraph 17.

5. Included in Preliminary Statement.

6. Adopted in substance in paragraph 2.

7. Adopted in paragraph 3.

8. Rejected as unnecessary. 9-10. Adopted in paragraph 6.

1. Adopted in paragraph 25.

2. Rejected as unnecessary.

1. (Second numbered paragraph 12) Adopted in paragraph 7.

2. Adopted in paragraph 7.

3. Adopted in paragraph 6.

4. Adopted in substance in paragraph 10.

5. Adopted in paragraphs 17 and 26.

6. Adopted in paragraph 25.

7. Rejected as unnecessary.

8. Adopted in paragraph 17.

9. Adopted in paragraph 9.

10. Adopted in substance in paragraphs 12-16.

11. Rejected as substantially unsupported by the evidence. He did make some effort and was moderately, but insufficiently, successful.

12. Adopted in paragraph 18.

13. Rejected as unnecessary.

Respondent's Proposed Findings of Fact

1. Adopted in substance in paragraph 1.

2. Adopted in part in paragraph 2. The proposed finding of personality conflict is rejected as unsubstantiated by competent, credible evidence.

3. Adopted in paragraphs 2 and 4.

4. Adopted in part in paragraph 5. The ultimate conclusion that he had "given up" is rejected as an overstatement of the substance of Pelham's testimony.

5-7. Rejected as unnecessary.

1. Adopted in substantive part in paragraph 25.

2. Adopted in paragraph 6.

10-12. Adopted in substance in paragraph 7.

1. Adopted in paragraph 8.

2. Rejected as contrary to the weight of the evidence.

15-17. Substantially rejected as contrary to the greater weight of evidence.

18-22. Rejected as unnecessary. The testimony of the peer

teachers neither supports nor rejects the position of Respondent. It is credible, but essentially neutral.

1. Rejected as contrary to the greater weight of evidence. The referrals played some part in the unsatisfactory assessments, but so also did Pelham's classroom observations.

2. Rejected as unnecessary. The basic premise is accepted, but this was not the reason Respondent had problems with referrals.

3. Rejected as contrary to the greater weight of evidence. 26-27. Rejected as unnecessary.

1. Adopted in substance in paragraph 18.

   29-31. Rejected as contrary to the greater weight of evidence. Both parties' experts were impressive and credible. In her assessment of Respondent's performance, Dr. Cronin- Jones understandably concentrated on the positive aspects, which aspects were nonetheless outweighed by the negative overall lack of effective connection between teacher and his students. The marked efforts to "relate" are rote, and in some cases (the trips), detract from the learning process.

   
   

   COPIES FURNISHED:

   
   

   Ned N. Julian, Jr., Esquire STENSTROM, MCINTOSH, ET AL.

   Post Office Box 4848 Sanford, Florida 32772-4848

   
   

   Thomas W. Brooks, Esquire MEYER AND BROOKS, P.A.

   2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

   
   

   Honorable Betty Castor Commissioner of Education The Capitol

   Tallahassee, Florida 32399-0400

   
   

   Robert W. Hughes, Superintendent Seminole County School Board 1211 Mellonville Avenue

   Sanford, Florida 32771

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

   =================================================================

   AGENCY FINAL ORDER

   ================================================================= BEFORE THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA

   THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA,

   
   

   Petitioner,

   
   

   v. Case No.: 92-3012

   
   

   JAMES A. CONNER,

   
   

   Respondent.

   /

   
   

   FINAL AGENCY ORDER

   
   

   This matter coming on for hearing before The School Board of Seminole County, Florida in regular session on February 9, 1993 on the issue of the entry of final agency order and the tribunal having considered the record together with the resignation submitted by the respondent, James A. Conner, and being otherwise fully advised in the matter hereby orders as follows:

   
   

   1. That the resignation submitted by the respondent, James A. Conner, be and the same is hereby accepted and the respondent's professional service contract of employment with The School Board of Seminole County, Florida be and the same is hereby forthwith terminated with prejudice.

      
      

   2. That the hearing officer's recommended order is rendered moot by the acceptance of the respondent's resignation.

Dated at Sanford, Florida on February 9, 1993.

JEANNE MORRIS, CHAIRMAN

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Attorney for the School Board Post Office Box 4848

Sanford, Florida 32771

Thomas W. Brooks, Esquire Attorney for the Respondent Post Office Box 1547 Tallahassee, Florida 32302

Mr. James A. Conner

255 Howard Boulevard Longwood, Florida 32750

Sharyn Smith, Director

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Joan Walker, Clerk

IF ANY PARTY DESIRES TO APPEAL THIS FINAL AGENCY ORDER, THEY MAY DO SO PURSUANT TO THE PROVISIONS OF SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF APPEAL IN THE MATTER PROVIDED BY FLA. R. APP. P. 1.910 WITH JOAN WALKER, AGENCY CLERK, THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, 1211 MELLONVILLE AVENUE, SANFORD, FLORIDA 32771 ON OR BEFORE 30 DAYS FROM THE DATE OF THE FILING OF THIS ORDER WITH AGENCY CLERK WHICH IS THE DATE OF ENTRY.

Docket for Case No: 92-003012

Orders for Case No: 92-003012