STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NOS. 92-3477
) 92-4501
RUTH G. POLLACK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on October 29 and 30, 1992, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
1450 Northeast Second Avenue Suite 301
Miami, Florida 33132
For Respondent: William du Fresne, Esquire
2929 Southwest Third Avenue Suite One Miami, Florida 33129
STATEMENT OF THE ISSUES
Whether Respondent should be denied issuance of a new professional service contract pursuant to Section 231.36(3)(e), Florida Statutes, on the grounds asserted in the Consolidated Specific Notice of Charges filed in these consolidated cases?
If not, whether Respondent's employment with the Dade County School Board should be terminated pursuant to the Section 231.36(6)(a), Florida Statutes, on the grounds asserted in the Consolidated Specific Notice of Charges filed in these consolidated cases?
PRELIMINARY STATEMENT
On April 22, 1992, the Dade County School Board (hereinafter also referred to as the "Board") acted upon the Superintendent of Schools recommendation that Respondent be denied a new professional service teaching contract. Respondent was provided "official notification" of the Board's action by letter dated May 26, 1992. By letter dated June 3, 1992, Respondent requested a formal hearing on the matter.
The matter was referred to the Division of Administrative Hearings (hereinafter referred to as "DOAH") on June 9, 1992, and docketed as DOAH Case No. 92-3477. In their joint response to the Initial Order issued in DOAH Case
No. 92-3477, the Board and Respondent agreed to waive the "45-day hearing requirement" of Section 231.36(3)(e)4.b., Florida Statutes, and they requested that the final hearing "be set on any date between October 13-30, 1992." In accordance with the parties' wishes, the Hearing Officer issued a Notice of Hearing scheduling the final hearing in DOAH Case No. 92-3477 for October 30, 1992. On July 15, 1992, the Board filed its Specific Notice of Charges against Respondent in DOAH Case No. 92-3477 in which it alleged that during the 1991-92 school year, despite the Board's efforts to assist her, Respondent had failed to correct performance deficiencies of which she had been made aware the previous school year.
On July 22, 1992, the Board took further action against Respondent.
Effective the close of that workday, it suspended Respondent and instituted proceedings to dismiss her "for incompetency, just cause and gross insubordination." Respondent was provided written notification of the Board's action by letter dated July 23, 1992. By letter dated July 22, 1992, Respondent requested a formal hearing on the Board's action.
The matter was referred to the Division of Administrative Hearings on July 27, 1992, and docketed as DOAH Case No. 92-4501. On August 6, 1992, the Board filed its Specific Notice of Charges against Respondent in DOAH Case No. 92-4501 in which it described the factual and legal basis of its position that Respondent's dismissal was warranted pursuant to Section 231.36(6)(a), Florida Statutes.
At the request of the Board and without objection from Respondent, DOAH Case No. 92-4501 was consolidated with DOAH Case No. 92-3477. By order issued August 10, 1992, the Hearing Officer announced that the final hearing in these consolidated cases would be held on October 30, 1922.
On October 9, 1992, the Board filed a Consolidated Specific Notice of Charges against Respondent. This pleading essentially combined in one instrument the charges that already had been filed against Respondent.
With the agreement of both parties, the final hearing in these consolidated cases commenced on October 29, 1992, instead of October 30, 1992. At the outset of the hearing, Respondent indicated that she did not take issue with the assertions contained in the first two numbered paragraphs of the Consolidated Specific Notice of Charges, which read as follows:
That at all times material, Petitioner, the School Board of Dade County, Florida was a duly constituted School Board established by Article IX of the Constitution of the State of Florida charged with the duty to operate, control and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX and Section 230.03, Fla. Stat.
That at all times material, Respondent, Ruth G. Poll[a]ck, was employed by The School Board of Dade County, Florida as a teacher pursuant to a professional service contract within the school district of Dade County, Florida and subject to the rules and regulations of said Board, pursuant to Section 231.01, Fla. Stat.
A total of 15 witnesses testified at the hearing: Dr. Judith Margulies; Charles Houghton; Dr. Matthew Welker; Jean McCauley; Dr. Desmond Patrick Gray, Jr.; Dr. Thomasina O'Donnell; James Hunt; Marielle Henry; William Henderson; Steven Vincent; Sandy Synder; Dr. Joyce Annunziata; Respondent; Dia Falco; and Yvonne Perez. All of the exhibits offered by the Board (1-25) and by Respondent (1, 3-5a. and 7-9) were received into evidence. At the close of the evidentiary portion of the hearing on October 30, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the hearing transcript.
On November 30, 1992, the Board filed an unopposed motion requesting that the Hearing Officer take official recognition of its Rules 6GX13-5B-1.01, 6GX13- 5B-1.02, 6GX13-5B-1.04 and 6GX13-5D-1.08. By order issued December 1, 1992, the Hearing Officer granted the Board's motion.
On January 15, 1993, both parties timely filed 1/ proposed recommended orders. On January 19, 1992, the Board filed a motion requesting leave to file a response to Respondent's proposed recommended order. The motion was opposed by Respondent. On January 21, 1993, the Hearing Officer issued an order indicating that both parties would have the opportunity to file amended or supplemental proposed recommended orders, provided they did so no later than February 4, 1993. On January 29, 1993, the Board filed a supplement to its proposed recommended order. Respondent, on the other hand, chose not to file either an amended or supplemental proposed recommended order.
The parties' proposed recommended orders contain, what are labelled as, "findings of fact." These "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the facts to which the parties have stipulated:
Respondent is 63 years of age.
She is an English teacher by profession. She has been teaching since 1972, the year she graduated from the University of Maryland. Prior to her employment with the Board, she held various teaching positions in the States of Maryland and New Jersey and also taught at several private schools in Dade County, Florida.
Respondent's employment with the Board began in 1985.
For the entire period of her employment with the Board, she was assigned to Miami Carol City High School (hereinafter referred to as "Carol City"), where she taught English.
Following the successful completion of her probationary period, Respondent was issued a professional service contract by the Board.
The 1989-90 School Year
In accordance with the Board's Teacher Assessment and Development System (TADS), school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom.
On November 3, 1989, Respondent was formally observed and evaluated by Dr. Thomasina O'Donnell, an assistant principal at Carol City. Before becoming an assistant principal, O'Donnell had been a language arts regional coordinator for the Board and an English teacher.
O'Donnell rated Respondent deficient in preparation/planning, techniques of instruction and assessment techniques.
These unsatisfactory ratings were justified.
O'Donnell prescribed the following remedial activities for Respondent:
Ms. Pollack will submit her weekly lesson plans for each preparation by noon each Friday (or the last working day of the week) to Dr.
O'Donnell.
In weekly plans, Ms. Pollack will use a variety of methods designed to motivate students. In addition to lecture and questioning, she will use group work projects, student presentations, etc. She will denote in her weekly plans the method(s) to be used each day.
Ms. Pollack will include supplemental materials at least two times each week. These aids will be clearly labeled in her plans.
Ms. Pollack will assign, collect, grade and enter in her gradebook at least two grades per student per week. 2/ One assignment will be a Writing Enhancement product and the other will be a quiz or test related to literature or an oral presentation.
Ms. Pollack will submit her gradebook to Dr. O'Donnell each Friday for review.
Ms. Pollack will develop a unit test which includes a variety of test items. She will submit to Dr. O'Donnell for review prior to administering to students.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her November 3, 1989, observation.
Respondent was again formally observed and evaluated by O'Donnell on April 23, 1990. She was rated acceptable in all six classroom performance categories.
It was therefore determined that Respondent had corrected the performance deficiencies noted by O'Donnell during her November 3, 1989, observation.
The 1990-91 School Year
O'Donnell next formally observed and evaluated Respondent on October 4, 1990.
She rated Respondent deficient in preparation/planning, knowledge of subject matter, techniques of instruction and assessment techniques.
These unsatisfactory ratings were justified.
Respondent did not follow her lesson plan.
She presented ideas and information to the students in a disorganized and illogical manner without the use of supplemental materials which would enhanced the lesson.
Students were obviously confused and did not understand the lesson, but Respondent made no adjustments to try to alleviate such confusion and lack of understanding.
Adding to the students' confusion was Respondent's failure to indicate whether their responses to her questions were correct or incorrect.
Many of the questions Respondent asked were not pertinent to the lesson.
There was no closure to the lesson.
The students' writing enhancement folders did not contain the requisite number of corrected and graded compositions.
Although Respondent's gradebook indicated that she had given the students one test and two quizzes, the students' folders did not contain any evidence that this test and these quizzes had been given. 3/
Neither did O'Donnell see any indication that the students had evaluated their own or each other's work.
O'Donnell prescribed the following remedial activities for Respondent:
Ms. Pollack will submit her lesson plans to her department head by 2:30 p.m. each Friday. In the event of her department head's absence, she will submit her plans directly to Dr.
O'Donnell. In the event of Ms. Pollack's absence, she will submit her lesson plans by 2:30 p.m. of the day of her return to work.
On her weekly plans, Ms. Pollack will list, in order, the specific activities to be accomplished each day. In addition, she will estimate the time each activity will require and note that on the plan next to the activity.
In her weekly plans, Ms. Pollack will briefly explain the connection of objectives to activities each day.
Ms. Pollack will review information regarding questioning skills provided by Dr. O'Donnell. She will prepare a list of questions to be asked in a teacher selected lesson. Ms.
Pollack will review the questions with Dr. O'Donnell prior to the lesson's delivery.
Ms. Pollack will observe two mutually selected language arts teachers for one full class period each. She will provide Dr. O'Donnell with a list of techniques (at least 3) each teacher used to:
a- measure students' understanding of a lesson b- deal with students' lack of understanding.
Ms. Pollack will develop or use commercially prepared supplementary material at least two times per week. She will note the use in her lesson plans and provide a copy of all supplementary material to Dr. O'Donnell at the same time she submits her lesson plans.
In her observations of other language arts teachers Ms. Pollack will note and list words used by these teachers when students answer incorrectly. She will review this with Dr.
O'Donnell at a scheduled conference.
In a meeting with the department head, they will discuss how the teacher can make suggestions to learners regarding improving their performance while maintaining positive feelings within the classroom. Ms. Pollack will provide Dr. O'Donnell with a list of at least three methods developed in conjunction with the department head.
In her meeting with the department head, Ms. Pollack will discuss what to look for in order to determine if adjustments to a lesson
are needed. She will also discuss appropriate adjustments that can be made. Ms. Pollack will provide Dr. O'Donnell with a list of at least three signals that lesson adjustments are needed and three appropriate adjustments the teacher can make for those signals.
In her observation of other language arts teachers, Ms. Pollack will note how the teacher prepares student's for the day's lesson. Ms. Pollack will summarize this information and provide it in written form to Dr. O'Donnell.
In her weekly lesson plans, Ms. Pollack will number the exact order in which she will present each topic activity.
Ms. Pollack will include on her weekly plans each day's closure activity/statement.
Ms. Pollack will provide one class set of the Writing Enhancement assignment to Dr.
O'Donnell each Monday by 9 a.m. Dr. O'Donnell will notify Ms. Pollack by note in her mailbox by 7 a.m. each Monday which class set she will review that week. Papers must be available for at least 85% of the students in the class and there must be teacher input on each paper. Ms. Pollack will provide Dr. O'Donnell with a note regarding type of grading used- holistic, primary trait, intensive, etc. She will vary the type of grading criteria.
The list of questions that Ms. Pollack will provide will include a notation regarding the level of each question based on Bloom's Taxonomy.
The teacher will provide at least one opportunity per week for students to evaluate their own or each other's performance. Ms.
Pollack will note when the opportunity takes place on her lesson plans.
Ms. Pollack will develop a unit test for students. She will review it with the department head before administering to students. She will provide Dr. O'Donnell with a copy of the test and a scoring analysis
within three days of the test's administration.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her October 4, 1990, observation.
By memorandum dated October 30, 1990, James Hunt, the principal of Carol City, referred Respondent to the Board's Employee Assistance Program. The referral was made after Respondent had been involved in an altercation with a student in one of her classes and the student's parent. Hunt believed that Respondent had exercised poor judgment in handling the situation.
Upon learning of the referral, Respondent conceded that she was having a difficult and stressful time in attempting to deal with the students in this particular class.
After attending one Employee Assistance Program meeting, Respondent declined to further participate in the program.
On November 30, 1990, Hunt formally observed and evaluated Respondent.
He rated Respondent acceptable in all six classroom performance categories.
During his November 30, 1990, observation Hunt examined neither Respondent's gradebook nor the students' folders. He subsequently conducted such an examination and discovered that the gradebook and the folders were incomplete.
On December 7, 1990, Hunt held a conference-for-the-record with Respondent.
Following the conclusion of the conference-for-the-record, Hunt prepared the following memorandum which accurately summarized what had occurred during the conference:
On December 7th a mid-year Conference-for-the- Record was held in my office. Present at the conference were Thomasina O'Donnell, Assistant Principal, Ron Pollack, UTD Steward, you and I.
I began by asking you if you had received notification. You replied that you had. I explained the purpose of this mid-year Conference-for the-Record. We will review your performance to date and your future employment with Dade County Public Schools.
Your first observation was conducted by Dr. O'Donnell on October 4th [and] you were found unacceptable in Categories I [preparation/planning], II [knowledge of subject matter], IV [techniques of instruction], and VI [assessment techniques]. You were placed in prescriptive mode. You met your timelines and satisfied your prescription. I conducted a second observation on November 30th. You were acceptable in Categories I through VI. However, you were placed in the prescriptive mode for Category VII [professional responsibility] due to your non-compliance with the Jack Gordon Writing Act. Also, the summative of observation 1 and 2 yields an unacceptable summative. Therefore, at least one more observation will be required.
It is our intent to assist you in every way possible. You have been provided with information about the Gordon Act and as part of your prescription you are to meet with Dr. O'Donnell to review all aspects of it. I
reviewed the fact that as schools are held accountable for class size, 4/ teachers are held accountable for student writing products.
Respondent was next formally observed and evaluated on February 21, 1991. O'Donnell was the observer and evaluator.
She rated Respondent deficient in preparation/planning, classroom management and assessment techniques.
These unsatisfactory ratings were justified.
The lesson plan was not followed.
Almost one half of the period was used, not for instruction, but for "housekeeping" matters, such as taking roll and having the students "update" their folders and copy the day's "agenda" from the board.
The students' writing enhancement folders did not contain the requisite number of corrected and graded compositions.
There were no graded tests in any of the students' folders.
O'Donnell prescribed the following remedial activities for Respondent: Using the packet of information provided by
Dr. O'Donnell, Ms. Pollack will write appropriate daily objectives for the weekly lesson plans.
She will provide her weekly plans to Dr. O'Donnell each Friday by 2:30 p.m. Ms. Pollack will place the plans in Dr.
O'Donnell's mailbox in the main office. In the event of Ms. Pollack's absence she will submit her plans by 7:15 a.m. of the day of her return.
In her weekly plans Ms. Pollack will include an estimate of the time for each activity for each day. She will limit folder maintenance or any similar "housekeeping" task to no more than 5 minutes at the beginning or end of the period.
After the last class each day, Ms. Pollack will review [her] written plan. She will mentally review the degree to which she followed all [the] plan. She will adjust her plan for the next day as needed. She will invite a colleague to observe one full class period. She will provide the colleague with her lesson plan. After the class she will discuss the extent to which she followed the plan. The colleague will provide Dr.
O'Donnell with a brief written description of the observed lesson.
Ms. Pollack will include in her daily plans a brief written instructional activity to begin each day.
Ms. Pollack will submit to Dr. O'Donnell two different sets of graded paper[s] per week, not including the writing enhancement assignment. She will post in her gradebook at least three (3) grades per week. One grade must be a composition, another must be a quiz/test (at least 10 questions) based on literature and the third grade will be of Ms. Pollack's choosing. Ms. Pollack will submit her grade book to Dr. O'Donnell for review each Friday by 2:45 p.m. Additionally, Ms.
Pollack will develop and, after clearing with Dr. O'Donnell, administer a unit test. The unit test will contain multiple-choice, matching, true-false and essay questions.
This unit test will contain at least 30 questions.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell had observed during her February 21, 1991, observation.
On April 17, 1991, the Superintendent of Schools sent Respondent a letter which read as follows:
This is your official notification that I have reviewed your assessments and I am hereby charging you with unsatisfactory performance during the 1990-91 school year in the following categories: I Preparation and Planning and VI Assessment Techniques. These performance deficiencies may result in termination of your employment if not corrected prior to April 1, 1992.
Upon written request, a meeting will be scheduled with Dr. Joyce Annunziata, Director, in the Office of Professional Standards to review the determination of your unsatisfactory performance. That meeting will also address your statutory entitlement to request consideration of transfer.
Assessment of your performance will continue through the balance of this school year, and the Office of Professional Standards will continue to monitor your progress during the 1991-92 school year.
On May 24, 1991, Hunt held a conference-for-the-record with Respondent to review her performance and her future employment with the Board. During the conference, Hunt advised Respondent that she would be receiving an overall
rating of unacceptable on her annual evaluation and that she would have the following year to attempt to improve her performance.
Respondent received her annual evaluation for the 1990-91 school year on May 31, 1991. She was rated unacceptable in the categories of preparation/planning, classroom management and assessment techniques and, as promised, she received an overall rating of unacceptable.
Respondent believed that she had been treated unfairly at Carol City, particularly by O'Donnell. 5/ She therefore asked her collective bargaining representative, the Untied Teachers of Dade, to request a transfer for her, which it did.
The request was denied because the Board determined that it was not administratively feasible to transfer Respondent to another school given the glut of high school English teachers in the school system.
The Board, however, agreed that during the 1991-92 school year Respondent would be formally observed and evaluated by as many non-site administrators as possible. It also reassigned her to teach ninth grade, an assignment which involved less paperwork.
The 1991-92 School Year
Respondent remained at Carol City during the 1991-92 school year.
The first formal observation and evaluation of Respondent's classroom performance that year was conducted on October 8, 1991, by Dr. Judith Margulies, an assistant principal at Miami Edison High School.
Margulies, like O'Donnell, had been a language arts regional coordinator for the Board and an English teacher before becoming an assistant principal.
Margulies rated Respondent deficient in classroom management and techniques of instruction.
These unsatisfactory ratings were justified.
Respondent did not appropriately address off-task behavior, of which there was a considerable amount.
Some of the few students who expressed an interest in actively participating in the lesson by raising their hands were totally ignored by Respondent.
Respondent gave unclear and confusing instructions to her students that she simply repeated and failed to clarify when it should have been obvious to her that the students did not understand what she wanted them to do. Repeating these instructions unnecessarily wasted valuable instructional time. By the end of the class period, Respondent had not gotten done what, according to her lesson plan, she had hoped to accomplish.
Margulies met with Respondent after the end of the class period and discussed with her the deficiencies she had noted.
She also prescribed the following remedial activities for Respondent:
Ms. Pollack will develop a set of classroom rules, review them with Dr. O'Donnell and post conspicuously in her classroom. Also, she will give individual copies to all students.
Dr. O'Donnell will make all arrangements for Ms. Pollack to observe a 9th grade teacher at MESH [Miami Edison Senior High] for one entire class period. Before leaving MESH, Ms.
Pollack will discuss what she has observed with the teacher. She will list at least 5 techniques the teacher used to address off task behavior. She will also describe at l[e]ast two methods the teacher employed to redirect students who were off task. Ms.
Pollack will meet with Dr. O'Donnell to review the observation within 3 days of the observation.
Ms. Pollack will observe one of Ms. Baum's [a fellow English teacher's] class for one entire period; she will look for and list 3 techniques Ms. Baum used to either prevent or redirect inappropriate student behavior.
Within 48 hours of the observation, Ms. Pollack will meet with Ms. Baum to discuss the observation. Ms. Pollack will also schedule a meeting with Dr. O'Donnell to review the list and the discussion with Ms. Baum. Dr.
O'Donnell will make all necessary arrangements.
Ms. Pollack will register for and successfully complete the TEC Course "Classroom Management" to be held as follows: . . .
Ms. Pollack will develop a detailed lesson plan for each of the following dates: Oct. 23 and 30. She will submit her plans to Dr.
O'Donnell the Friday previous to those dates by 3:00 p.m.
The plans must include the production of a completed student work product. Ms. Pollack will attach to her plans an example or model of the product she expects from her students.
While observing Ms. Baum's class and/or through the follow-up discussion, Ms. Pollack will determine and list at least 3 techniques Ms. Baum employs to be aware of all students. Ms. Pollack will provide this list to Dr.
O'Donnell.
Ms. Pollack will plan one day's lesson specifically for group work. She will ask a colleague to observe her teach a class. They will discuss the observation. The teacher will provide Dr. O'Donnell with a brief written summary of the activities and discussion.
Dr. O'Donnell will make all arrangements.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Margulies had observed during her October 8, 1991, observation.
Two or three days following the observation, Margulies met briefly with Respondent to discuss the prescription.
On November 4, 1991, Hunt held a conference-for-the-record with Respondent to review her failure to timely comply with prescription deadlines, which also had been the subject of an informal conference he and Respondent had had the previous month.
Following this conference-for-the-record, Hunt determined that Respondent was "in violation of Category VII of TADS, Professional Responsibilities." He so advised Respondent and indicated he would be preparing and presenting to her an additional prescription dealing with this violation. Hunt warned that "[f]ailure to comply with this prescription will result in further disciplinary action."
The prescription was prepared and presented to Respondent on or about November 12, 1991. It set forth the following remedial activities for Respondent to perform:
Read the Code of Ethics of the Education Profession in Florida (6B-1.01) and the Principles of Professional Conduct for the Education Profession in Florida (6B-1.06) [copies of which were provided to Respondent]. Delineate applicable sections and submit a summary to Dr. O'Donnell for review and discussion.
Read the UTD Contract sections relating to TADS. Outline these procedures and submit to Dr. O'Donnell.
Ms. Pollack is directed to meet all remaining timelines of her current prescription. In the event of any additional prescriptions, she is also directed to meet all timelines.
Respondent was next formally observed and evaluated on November 19, 1991, by Charles Houghton, a site administrator at another Board-run facility. Before assuming this position, Houghton, like O'Donnell and Margulies, had been a language arts regional coordinator for the Board and an English teacher.
Houghton rated Respondent deficient in preparation/planning, knowledge of subject matter, techniques of instruction and assessment techniques.
These unsatisfactory ratings were justified.
Respondent did not follow her lesson plan.
The entire period was consumed by only one of the four activities identified in the plan. This lone activity was simply to review material that had already been covered during a prior class period.
What was identified in the plan as the lesson's objective was in reality an activity. Moreover, it was an activity that the students did not have the opportunity to complete.
Although knowledgeable regarding the subject matter of the lesson, she was unable to impart her knowledge to her students.
She failed to make the topic under discussion relevant to the students.
Respondent did not ask questions that were sufficiently challenging.
Most of the students were inattentive and not involved in whatever instruction was taking place. Respondent made no effort to draw them into the lesson.
Almost all of the grades in Respondent's grade book were for classwork. There were very few grades for tests, quizzes or writing assignments.
Of the student folders Houghton examined, none contained more than two graded assignments.
The folders consisted primarily of written classroom assignments that involved merely copying on a piece of paper material that was on the blackboard.
The students had already received their report cards for the first nine-week grading period of the school year, but the folders did not contain sufficient documentation to substantiate the grades she had given.
The remedial activities Houghton prescribed for Respondent included the following:
Ms. Pollack will keep a daily log in which she will note the degree to which she accomplishes the activities she had planned according to her prepared lesson plan. She will submit the log and the weekly lesson plan on each Monday for the previous week to Dr. O'Donnell.
In her weekly lesson plans, Ms. Pollack will develop at least 3 activities with direct relevance to students' lives or interests.
She will clearly identify these activities in her plans. She will submit her weekly lesson plans to Dr. O'Donnell each Friday, before 3:00 p.m.
Ms. Pollack will review the packet of information concerning question strategies previously provided. She will provide Dr. O'Donnell with a list of at least 5 advantages to pre-planning questions and at least 4 advantages to asking questions at higher cognitive levels.
Ms. Pollack will arrange for the Region I Language Arts coordinator to observe informally at least one full class period. Ms. Granat will provide feedback to Ms.
Pollack concerning the students' understanding of the lesson concepts. She will also provide Ms. Pollack with feedback regarding how closely she followed her planned lesson and any adjustments made on any which should have been made. Ms. Granat will also provide written feedback to Ms. Pollack and Dr.
O'Donnell.
Ms. Pollack will assign, collect and grade at least 3 student assignments each week in all of her classes. One assignment must be a literature quiz/test, one must be a writing assignment of at least one paragraph and the third will be the teacher's choice. Each Monday during 1st period Ms. Pollack will present the student work and her gradebook
in order to determine that the grades have been posted. Dr. O'Donnell will select one class each Monday for examination.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Houghton had observed during his November 19, 1991, observation.
Houghton had a post-observation meeting with Respondent at which he went over the prescription with her.
On December 6, 1991, Hunt had a mid-year conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance to date and the status of her future employment with the Board. Hunt reminded Respondent that if her performance, as measured by formal observations and evaluations, did not improve sufficiently, she would not be retained.
Two union representatives were also in attendance at the conference. Hunt gave them permission to informally observe Respondent so that they would be in a better position to assist her. He also offered Respondent the opportunity
to solicit assistance from any Board employee in whom she had confidence, regardless of whether the employee had been identified as a resource in any of the prescriptions she had received.
Respondent was next formally observed and evaluated on February 7, 1992, by Dr. Matthew Welker, an assistant principal at Carol City.
Welker rated Respondent deficient in preparation/planning, classroom management and teacher-student relationships.
These unsatisfactory ratings were justified.
Respondent did not follow the lesson plan.
The students spent a significant amount of time copying the day's agenda from the blackboard.
The agenda written on the blackboard was not consistent with the lesson plan.
Respondent arrived late to class and therefore did not have a full period in which to instruct her students. The time she did have to provide instruction she did not use efficiently. An excessive amount of time was spent on "housekeeping" tasks.
Of the 20 students in attendance that day, 6/ six were persistently off-task. Respondent made no real effort to prevent or to redirect their off- task behavior or to involve them in the lesson.
Most of Respondent's interactional time during the lesson was spent with only six or seven students located on the right side of the classroom.
Respondent made no attempt to verbally or nonverbally reward or recognize the students who did actively and appropriately participate in the lesson.
Welker prescribed the following remedial activities for Respondent:
Ms. Pollack will maintain a daily log indicating the degree to which she has accomplished the activities described in her weekly lesson plan. Ms. Pollack will also indicate in writing any changes she has made to align her actual lessons during the week with her weekly lesson plan. Ms. Pollack will submit these materials along with her weekly lesson plan to Dr. Welker for review and discussion on Monday of the following week
. . . .
Ms. Pollack will invite one of her colleagues or the Language Arts Department chairperson to observe her class. During that time the visitor is to record the time she spends on various activities while in class. Using the record prepared by the visitor, Ms. Pollack will then analyze her instruction on the basis
of how much time she spends on instructional versus noninstructional activities. Once that information is known, Ms. Pollack will develop a strategy to reduce her percentage of noninstructional time while in class. This strategy will take the form of detailed lesson plans that indicate how Ms. Pollack is using time in her classroom. Ms. Pollack will submit her lesson plan to Dr. Welker for review and discussion on each Monday within the timeline established herein [March 30, 1992].
Ms. Pollack will invite one of her colleagues or the Language Arts Department chairperson to observe her class. During that time, the visitor is to record the frequency of off-task behavior observed in her class. Using the record prepared by the visitor, Ms. Pollack will then analyze her instruction and planning to formulate a plan to significantly reduce the frequency of off-task behavior observed.
This strategy will take the form of detailed lesson plans that Ms. Pollack will submit to Dr. Welker for review and discussion on each Monday within the timeline established herein [March 30, 1992].
Ms. Pollack will invite a colleague or the Language Arts Department chairperson to observe her class in order to determine the frequency and distribution of verbal communication she makes with students in the classroom. Once that information has been recorded, Ms. Pollack will analyze the data and develop a treatment strategy to increase the frequency and distribution of her verbal communication with students in her classroom by at least 50 percent. Ms. Pollack will submit in writing to Dr. Welker for review and discussion the following information:
Pretreatment interactional analysis showing both frequency and distribution of verbal student contact
Treatment strategy to increase both frequency and distribution of verbal student contact during class.
Posttreatment interactional analysis showing both frequency and distribution of verbal student contact.
Ms. Pollack will make a tape recording of herself teaching a lesson involving interaction with students. Once the recording has been prepared, Ms. Pollack will play back the tape and record the frequency of reinforcement statements made to the students.
She will also analyze her verbal statements to determine the total number of positive and negative reinforcement statements made during the class. She will then develop a treatment plan to increase the frequency of positive reinforcement by 50 percent. Ms. Pollack will submit in writing to Dr. Welker for review and discussion the following information:
Pretreatment interactional analysis showing the total number of positive and negative reinforcement statements made toward students in your class
Treatment strategy to increase the number of positive reinforcement statements while decreasing the number of negative reinforcement statements made toward students in your class
Posttreatment interactional analysis showing the total number of positive and negative reinforcement statements made toward students in your class.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that Welker had observed during his February 7, 1992, observation.
Welker also provided Respondent with excerpts from a book that he recommended Respondent read to help improve her classroom performance.
Hunt had another conference-for-the-record with Respondent on March 4, 1992.
Hunt advised Respondent that since she had not corrected her performance deficiencies, he was going to recommend to the Superintendent of Schools that her professional service teaching contract not be renewed. He added, however, that he would reconsider his decision if Respondent "demonstrate[d] acceptable performance in the near future."
Although, in explaining his decision to Respondent, Hunt specifically mentioned only the formal evaluations Respondent had received, 7/ informal observations of Respondent's classes revealed similar deficiencies in her performance.
Perhaps the most glaring of these deficiencies was in the area of classroom management. Administrators often had to be called to her classroom because she was unable to maintain control over her students. 8/ Respondent's inability to maintain such control resulted in a classroom environment that not only was not conducive to learning, but at times was unsafe. 9/
Respondent was provided ample assistance to help her perform satisfactorily as a classroom teacher, but such help was to no avail.
Notwithstanding that she was given notice of her deficiencies and a reasonable opportunity to correct them, her performance remained unacceptable.
Some time shortly after his March 4, 1992, conference-for-the-record with Respondent, Hunt submitted to the Superintendent of Schools his recommendation that the Board decline to renew Respondent's contract.
The Superintendent, without providing any notice to Respondent, submitted an identical recommendation to the Board.
On April 22, 1992, the Board adopted the Superintendent's recommendation.
The following day Respondent was formally observed and evaluated by O'Donnell and Jean McCauley. At the time, McCauley was the principal of Redland Middle School. Like O'Donnell, she had a language arts background.
This was an external review.
External reviews are conducted jointly by a site and non-site administrator in instances where a teacher has received multiple unacceptable performance evaluations. The administrators rate the teacher's performance independently and, if there are deficiencies, prepare a prescription together.
Both O'Donnell and McCauley rated Respondent deficient in knowledge of subject matter, classroom management, techniques of instruction and assessment techniques.
These unsatisfactory ratings were justified.
Although the lesson could have benefited from the use of supplemental materials, none were used.
The lesson was presented in an illogical and disorganized fashion at the lowest cognitive level.
No critical thinking or synthesis of ideas was required of the students.
Respondent's instructional methods were clearly inappropriate for the needs and abilities of the students.
Different learning styles were not accommodated.
Respondent did not monitor the students' understanding of the lesson.
Respondent did not interact with any individual student notwithstanding that there were only 12 students in attendance.
Respondent made no adjustments although it was obvious that the students were not taking part in the lesson.
Respondent did not intervene when students engaged in off-task, inappropriate or disruptive behavior.
During the lesson, the students did no written work for Respondent to examine and assess.
Because of the ill-suited nature of the questions asked by Respondent during the lesson, the responses given were not useful in providing student assessments.
There were no grades in the gradebook, nor were there any student folders available, for the class Respondent was teaching that period.
Respondent presented two student folders from another of her classes. These folders did not contain the materials they should have. They were devoid of any quizzes, tests and essays.
O'Donnell and McCauley prescribed the following remedial activities for Respondent:
Ms. Pollack will submit her weekly lesson plans to Dr. O'Donnell by 2:30 p.m. each Friday. In the event of Ms. Pollack's absence, she will submit her plans by 2:30
p.m. of the day of her return. Her plans are to include a list, in order, of specific activities to be accomplished each day. In addition, she will estimate the time each
activity will require and note that in the plan.
In her weekly plans, Ms. Pollack will briefly explain the connection of objectives to activities each day. She will plan at least
2 separate but related activities each day.
Ms. Pollack will review the packet of Questioning Techniques information previously presented to her. Using that information she will develop at least 5 higher level question[s], she will attach the questions to her lesson plans and meet with Dr. O'Donnell to review and discuss.
Ms. Pollack will observe a mutually selected colleague for one free class period. She will note how the teacher makes clear his/her behavior expectations. She will present a list of at least 5 observed techniques to Dr. O'Donnell for review and discussion.
During the observation of a colleague, Ms. Pollack will also note techniques the teacher employs to provide students with feedback about appropriate or inappropriate behavior. She will present this list to Dr. O'Donnell for review and discussion.
During the observation and through discussion with her colleague, Ms. Pollack will note at least 5 techniques employed by her colleague to become aware of off-task student behavior. She will present this list to Dr. Welker for review and discussion.
Ms. Pollack is to register for and attend the TEC course "Research on Student Motivation." The class dates are 5/13, 5/19, 5/27.
Ms. Pollack will use commercially prepared supplementary material at least two times per week. She will attach copies of the supplementary material (or see Dr. O'Donnell if it cannot be attached to the submitted lesson plans) to the weekly lesson plans.
While observing a colleague's class, Ms. Pollack will note at least 3 instances where the teacher corrects a student's incorrect response. Ms. Pollack will briefly describe in written form and present to Dr. O'Donnell for review and discussion.
Ms. Pollack will meet with a mutually agreed upon colleague. She will discuss what to look for in order to determine if adjustments to the lesson are needed. She will also discuss appropriate adjustments that can be made. Ms. Pollack will provide Dr. O'Donnell with a list of at least 3 signals that lesson adjustments are needed and 3 appropriate adjustments a teacher can make.
Ms. Pollack will invite a mutually agreed colleague to observe her teach a lesson. She will ask the colleague to keep a tally of interactions between her and individual students. Ms. Pollack will discuss this with her colleague and present the tally sheet to Dr. O'Donnell.
Ms. Pollack will prepare and give a short quiz at least 2 times per week to determine areas of student confusion. She will make these available for review by Dr. O'Donnell.
Ms. Pollack will assign, collect, grade and post in her gradebook at least 3 assignments per week. At least one of these must be a literature quiz/test, one must be a writing assignment of at lest one paragraph and the third is the teacher's choice. Every Monday Ms. Pollack must meet with Dr. O'Donnell to present the student work and her gradebook for review. Ms. Pollack is to report to Dr. O'Donnell's office at 7:45 a.m.
In her weekly plans, Ms. Pollack must plan at least one activity that requires students to work together..
Ms. Pollack is to prepare a unit test for Call to the Wild and present it for review to Dr.
O'Donnell before giving it to students.
Ms. Pollack is to make and keep a student folder for each of her students. The folder must contain a representative sample of the student's work.
Ms. Pollack is to submit a class set of these folders to Dr. O'Donnell for review.
These prescribed activities were reasonably designed to help Respondent correct the performance deficiencies that O'Donnell and McCauley had observed during their April 23, 1992, observation.
On May 20, 1992, Hunt had another conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance to date and her employment status. Hunt informed Respondent during the conference that, inasmuch as her performance remained unacceptable, as reflected by O'Donnell's and McCauley's evaluation, his recommendation to the Superintendent that her professional service teaching contract not be renewed would stand. (He apparently was unaware, as was Respondent, that the Board had already taken action on the matter.) Hunt further advised Respondent that she would be receiving an overall unacceptable rating on her annual evaluation for the 1991-92 school year.
Although the Board had acted on the Superintendent's recommendation not to renew Respondent's professional service teaching contract on April 22, 1992, it was not until May 26, 1992, that the Superintendent sent Respondent a letter notifying her of the Board's action. The letter read as follows:
This is your official notification that on April 22, 1992, The School Board of Dade County, Florida, acted upon my recommendation to withhold authorization for your future employment beyond the 1991-92 contract year.
On April 17, 1991, I notified you that you had unsatisfactory performance and if no remediation were determined by April 1992, termination actions will be pursued. During the 1991-92 school [year], your performance was assessed deficient despite remediation efforts. You have been apprised of the deficiencies and subsequent employment
actions in conferences-for-the-record on November 4, 1991, December 6, 1991, and March
4, 1992.
Your employment with the Dade County Public Schools will terminate at the close of the 1991-92 contract year, and your last day of employment will be June 19, 1992. If you wish to contest your nonreappointment, you have fifteen calendar days from your receipt of this notice to request, in writing, a hearing.
The written request for a hearing should be submitted to the School Board Clerk, Room 317, 1450 N.E. Second Avenue, Miami, Florida 33132.
If you believe there is false information in your file which led to this decision, and wish to challenge this information, you should follow the procedures in Article XIV, Section
1.A.4 of the UTD collective bargaining agreement. Your written request must identify the false statements you wish cleared and should be addressed to the Assistant Superintendent, Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, Florida 33132, within fifteen calendar days of your receipt of this notice. Please be advised that even if you should prevail, there is no entitlement to reemployment.
Respondent received her annual evaluation for the 1990-91 school year on or about May 29, 1992. She was rated unacceptable in the categories of knowledge of subject matter, classroom management, techniques of instruction and assessment techniques and, as promised, she received an overall rating of unacceptable. In addition, the evaluation indicated that Hunt had not recommended her for further employment.
By letter dated June 3, 1992, Respondent, through her attorney, requested a "Chapter 120 Administrative Hearing before the Division of Administrative Hearings" on the nonrenewal of her professional service teaching contract.
Pursuant to Respondent's request the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer on June 9, 1992.
Following the close of the school year, Respondent was placed in a suspended-without-pay status pending the outcome of this administrative proceeding, notwithstanding that her professional service teaching contract had not been renewed.
On July 22, 1992, the Board took action to formally suspend Respondent and initiate proceedings to dismiss her "for incompetency, just cause and gross insubordination."
Respondent was advised of the Board's action and her right to request a hearing on the matter by a letter, dated July 23, 1992, from the Superintendent of Schools.
Such a hearing was requested and the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer on July 27, 1992.
CONCLUSIONS OF LAW
The employment of a public school teacher holding a professional service teaching contract may be terminated for unsatisfactory performance pursuant Section 231.36(3)(e), Florida Statutes, which provides in pertinent part as follows:
A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s.231.29(4), 10/ charges the employee with unsatisfactory performance as determined under the provisions of s.231.29 and notifies the employee in writing, no later than 6 weeks prior to the end of the postschool conference period, of performance deficiencies which may result in termination of employment if not corrected during the subsequent year of employment (which shall be granted for an additional year in accordance with subsection (1)). Except as otherwise hereinafter provided, this action shall not be subject to the provisions of chapter 120, but the following procedures shall apply:
On receiving notice of unsatisfactory performance, the employee, on request, shall be accorded an opportunity to meet with the superintendent or his designee for an informal review of the determination of unsatisfactory performance.
An employee notified of unsatisfactory performance may request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the subsequent year of employment.
During the subsequent year, the employee shall be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. The employee shall also be evaluated periodically so that he will be kept apprised of progress achieved.
Not later than 6 weeks prior to the close of the postschool conference period of the subsequent year, the superintendent, after receiving and reviewing the recommendation required by s.231.29(4), shall notify the employee, in writing, whether the performance deficiencies have been corrected. If so, a new professional service contract shall be issued to the employee. If the performance deficiencies have not been corrected, the superintendent may notify the school board and the employee, in writing, that the employee shall not be issued a new professional service contract; however, if the recommendation of the superintendent is
not to issue a new professional service contract, and if the employee wishes to contest such recommendation, the employee will have 15 days from receipt of the superintendent's recommendation to demand, in writing, a hearing. In such hearing, the employee may raise as an issue, among other things, the sufficiency of the superintendent's charges of unsatisfactory performance. Such hearing shall be conducted at the employee's election in accordance with one of the following procedures:
* * *
b. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 45 days of the receipt of the written appeal in accordance with chapter 120. The recommendation of the hearing officer shall be made to the school board. A majority vote of the membership of the school board shall be required to sustain or change the hearing officer's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
The Superintendent of Schools of Dade County has recommended that Respondent be denied a new professional service contract pursuant to Section 231.36(3)(e), Florida Statutes. The recommendation should be followed by the Board inasmuch as the charges of unsatisfactory performance against Respondent have been sustained and there has been no material departure from the procedural requirements of Section 231.36(3)(e), Florida Statutes, that has unfairly prejudiced Respondent.
The preponderance of the evidence establishes that Respondent was timely given the requisite notification of her performance deficiencies during the 1990-91 school year and of the consequences she would suffer if these deficiencies continued, and that, notwithstanding such warning and the statutorily required efforts made to make her aware of, and to help her correct, these deficiencies, her performance remained unsatisfactory during the 1991-92 school year.
In her proposed recommended order, Respondent does not argue that the evidence shows otherwise, but rather contends that she cannot be denied a new professional service teaching contract pursuant to Section 231.36(3)(e), Florida Statutes, because she "received no notice of the Superintendent's recommendation to the Board until after the Board had terminated her [on April 22, 1992], . . . [in] violation of Florida Statute 231.36(3)(e)."
To the extent that Respondent contends that there has not been full and complete compliance with the notice requirements of Section 231.36(3)(e), Florida Statutes, she is correct.
Section 231.36(3)(e), Florida Statutes, requires that the employee be given (1) written notice of the superintendent's adverse recommendation "not
later than 6 weeks prior to the close of the postschool conference period" of the second year of unsatisfactory performance, and (2) the opportunity to request a hearing on the matter before the school board takes any action on the recommendation. In Respondent's case, as she accurately points out, she was first notified of the Superintendent of Schools' recommendation approximately three weeks before the close of the postschool conference period and only after the Board had acted on the recommendation, contrary to the requirements of Section 231.36(3)(e)4., Florida Statutes.
No harm, however, has resulted inasmuch as the Board, following its April 22, 1992, meeting, rectified the matter with reasonable promptness by granting Respondent's request for a Section 120.57 hearing and giving her the opportunity to contest the Superintendent's recommendation before final Board action is taken on the recommendation. 11/
That the Board has done so, admittedly does not alter the fact that the Superintendent did not provide Respondent with written notification of his recommendation by the deadline specified in Section 231.36(3)(e)4., Florida Statutes. The Superintendent's failure to provide such notification in a timely manner, however, was merely a technical violation of the statute that has not impaired the fairness of this proceeding or otherwise prejudiced Respondent. Accordingly, it is not a reason for the Board to decline to follow the Superintendent's recommendation. See Krischer v. School Board of Dade County,
555 So.2d 436 (Fla. 3d DCA 1990); Powell v. Board of Public Instruction of Levy County, 229 So.2d 308 (Fla. 1st DCA 1969).
Inasmuch as the evidence is sufficient to establish that Respondent should be denied a new professional service teaching contract pursuant to Section 231.36(3)(e), Florida Statutes, based upon continued unsatisfactory performance, it is unnecessary to, and therefore the Hearing Officer will not, consider the merit of the charges filed against Respondent pursuant to Section 231.36(6)(a), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board enter a final order (1) adopting the recommendation that Respondent not be issued a new professional service teaching contract, and (2) dismissing as moot the charges filed against Respondent pursuant to Section 231.36(6)(a), Florida Statutes.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March, 1993.
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 8th day of March, 1993.
ENDNOTES
1/ The Hearing Officer had received the hearing transcript on January 4, 1993,
11 days earlier.
2/ At all times material to the instant cases, teachers at Carol City were required to have in their gradebooks two grades for each student per week. This requirement was explained in the teacher handbook, in memos the teachers received and at faculty meetings.
3/ Teachers at Carol City are required to maintain a folder for every student in their class containing graded tests, quizzes and assignments. If such folders are maintained, gradebooks that are lost or stolen (as Respondent, on more than one occasion, reported hers to have been) can be accurately reconstructed.
4/ Under the Gordon Act, schools were required to provide teachers teaching writing enhancement classes extra planning time and smaller classes.
5/ Notwithstanding what Respondent may have believed, the greater weight of the evidence establishes that she was not treated unfairly by the administrative staff at Carol City.
6/ During the last semester of the 1991-92 school year, the size of her classes was reduced by approximately 50% in an effort to make it easier for her to meet her teaching responsibilities.
7/ Hunt had met with Respondent after each such formal evaluation to make sure that Respondent understood her deficiencies and what was expected of her.
8/ The situation became so bad that Respondent was reassigned a classroom closer to the office so that administrators would be nearby in the event they were needed.
9/ Administrators rearranged the furniture in her classroom so that Respondent would be in a better position to see everything that her students were doing, but nonetheless the problems persisted.
10/ Section 231.29(4), Florida Statutes, provides that "[t]he individual responsible for the supervision of the employee shall make the assessment of the employee and forward such assessment to the superintendent for the purpose of reviewing the employee's contract."
11/ The Board's April 22, 1992, determination to adopt the Superintendent's recommendation did not constitute final action on the matter because it was made without Respondent first having been afforded the statutorily required notification and opportunity for hearing. Cf. Arthritis Medical Center, Inc. v. Department of Health and Rehabilitative Services, 543 So.2d 1304, 1305 (Fla. 4th DCA 1989)("[a]n administrative board has no jurisdiction to enter a final order on an amended complaint not properly served"); Holmberg v. Department of Natural Resources, 503 So.2d 944, 947 (Fla. 1st DCA 1987)("an agency cannot summarily enter a final order imposing a fine" without giving the affected
person notice and an opportunity to seek a Section 120.57 hearing); Sterman v. Florida State University, 414 So.2d 1102, 1104 (Fla. 1st DCA 1982)(notice that does not comply with the requirements of Rule 28-5.111, Florida Administrative Code, is "inadequate to trigger the commencement of the administrative process"); Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979)("an adverse determination of a party's substantial interests [by an administrative agency] is ineffective until an order has properly been entered after proceedings under Section 120.57;" "[a]bsent waiver [of Section 120.57 benefits], we must regard an agency's free-form action as only preliminary irrespective of its tenor;" "[u]ntil proceedings are had satisfying Section 120.57, or an opportunity for them is clearly offered and waived, DOT is powerless to suspend Capeletti's certificate of qualification").
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 92-3477 and 92-4501
The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:
The Board's Proposed "Findings of Fact"
1-5. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
6-7. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
8. First through third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth through sixth sentences: Accepted and incorporated in substance.
9-17. Accepted and incorporated in substance.
18. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is contrary to the greater weight of the evidence, which establishes that Respondent did attend at least one Employee Assistance Program meeting.
19-41. Accepted and incorporated in substance.
Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Eighth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
47-68. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Respondent's Proposed "Findings of Facts"
Accepted and incorporated in substance.
Third sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law, albeit a correct one, than a finding of fact; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that "[o]n April 22, 1992 [the] School Board acted upon the recommendation of the Superintendent and elected not to renew the Respondent's professional service contract," it has been accepted and incorporated in substance. To the extent that it asserts that this action effectively "terminated her employment on April 19, 1992," it has been rejected because it is not supported by competent substantial evidence.
4-6. Accepted and incorporated in substance.
7. Rejected as a finding of fact because it is more in the nature of a statement of the Board's legal position, albeit an accurate one, than a finding of fact.
COPIES FURNISHED:
Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Suite 301
Miami, Florida 33132
William du Fresne, Esquire 2929 Southwest Third Avenue Suite One
Miami, Florida 33129
Octavio J. Visiedo
Dade County School Board Superintendent of Schools 1450 Northeast Second Avenue 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 of time within which to submit written exceptions. You should contact the agency that will issue the final order in these cases 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 these cases.
| Issue Date | Proceedings |
|---|---|
| Mar. 29, 1993 | Final Order of the School Board of Dade County, Florida filed. |
| Mar. 08, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 10/29-30/92. |
| Jan. 29, 1993 | Petitioner`s Response to Respondent`s Proposed Recommended Order filed. |
| Jan. 28, 1993 | Petitioner School Board`s Notice of Filing Supplemental Proposed Recommended Order filed. |
| Jan. 21, 1993 | Order sent out. (amended or supplemental proposed recommended orders must be filed by 2-4-93) |
| Jan. 19, 1993 | Petitioner School Board`s Motion for Leave to File Response to Respondent`s Proposed Recommended Order filed. |
| Jan. 19, 1993 | Letter to SML from William Du Fresne (re: Respondent`s proposed recommended Order) filed. |
| Jan. 19, 1993 | Letter to SML from William Du Fresne (re: Respondent`s proposed recommended Order) filed. |
| Jan. 19, 1993 | Transcript filed. |
| Jan. 15, 1993 | Petitioner School Board`s Proposed Recommended Order filed. |
| Jan. 15, 1993 | Respondent`s Proposed Recommended Order filed. |
| Jan. 06, 1993 | CC Letter to Edmee Prats from Madelyn P. Schere (re: errors in transcript) filed. |
| Jan. 04, 1993 | Transcript of Proceedings (2 Volumes) filed. |
| Nov. 30, 1992 | Petitioner School Board`s Motion for Official Recognition filed. |
| Nov. 09, 1992 | (Joint) Stipulation to Waive The 45 Day Time Frame Required by Section 231.36(3) (e)4, Fla, Stat filed. |
| Oct. 15, 1992 | Order sent out. (hearing rescheduled for 10-29-92; 1:00pm; Miami; and Continue on 10-30-92) |
| Oct. 13, 1992 | Request for Subpoenas filed. (From William Du Fresne) |
| Oct. 13, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Oct. 09, 1992 | (Petitioner) Consolidated Specific Notice of Charges filed. |
| Aug. 10, 1992 | Order sent out. (hearing set for case nos. 92-3477 and 92-4501 are consolidated for hearing, final hearing in these consolidated cases will be 10-30-92; 8:45; Miami) |
| Jul. 27, 1992 | Petitioner School Board`s Motion to Consolidate Cases filed. |
| Jul. 15, 1992 | (Petitioner) Specific Notice of Charges filed. |
| Jun. 23, 1992 | Notice of Hearing sent out. (hearing set for 10-30-92; 8:45am; Miami) |
| Jun. 19, 1992 | Joint Response to Initial Order filed. |
| Jun. 15, 1992 | (Petitioner) Notice of Substitution of Counsel filed. |
| Jun. 12, 1992 | Initial Order sent out. |
| Jun. 09, 1992 | Agency referral letter; Request for Administrative Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 24, 1993 | Agency Final Order | |
| Mar. 08, 1993 | Recommended Order | Nonrenewal of professional service contract warranted based on continued unsatisfactory performance; supintendent's failure to give timely notice of recommendation harmless error. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs KAREN ROSALIE SCHIEFLER, 92-003477 (1992)
RICK SAPP vs. ESCAMBIA COUNTY SCHOOL BOARD, 92-003477 (1992)
MIAMI-DADE COUNTY SCHOOL BOARD vs MICAH D. HARRELL, 92-003477 (1992)
SARASOTA COUNTY SCHOOL BOARD vs BRIAN BERRY, 92-003477 (1992)
VICKI GAINEY vs. LIBERTY COUNTY SCHOOL BOARD, 92-003477 (1992)
