STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY PUBLIC SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5531

)

MARSHA HYMON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 7-8, 1993, in Miami, Florida. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue in this case is whether Ms. Hymon is guilty of incompetency, and if so, whether she should be dismissed from employment with the School Board of Dade County.

PRELIMINARY STATEMENT

This case began on August 19, 1992, when the School Board of Dade County (School Board) suspended Ms. Hymon and initiated dismissal proceedings against her pursuant to Section 231.36(4)(c), Florida Statutes. On August 31, 1992, she requested a formal hearing.

The matter was filed with the Division of Administrative Hearings for formal proceedings on September 15, 1992. The School Board filed its Specific Notice of Charges to Respondent on September 18, 1992. These charges alleged that she was guilty of incompetency and gross insubordination/willful neglect of duty as those terms are defined by Rule 6B-4.009, Florida Administrative Code.

On December 3, 1992, the Board moved to amend its Notice of Specific Charges to add factual allegations pertaining to the 1984/85 school years. The motion was granted at hearing.

The School Board presented the testimony of the following witnesses: Dr. Elaine Lifton, Steve Lovelass, Robert Russell, Susie Robinson, Beverly Gross, Doretha Mingo, Denise Haynes, Sandra Stonberg, Bertha Neely, Marguerite Radencich and Dr. Joyce Annunziata. The School Board's exhibits numbered 1-39 were admitted into evidence.

Respondent testified in her own behalf, and her exhibit number 1 was admitted into evidence.

Official recognition was taken of State Board Education Rules 6B-1.001 and 6B.1.006, Florida Administrative Code, as they existed during Respondent's employment.

On January 19, 1993, the School Board withdrew its charges of gross insubordination and willful neglect of duty.

A transcript was not filed after the hearing. The parties timely filed proposed recommended orders. Specific rulings on the parties' proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. Ms. Hymon was a teacher employed by the School Board and assigned to Oak Grove Elementary School (Oak Grove). She holds a continuing employment contract with the School Board pursuant to Section 231.36(4), Florida Statutes, and a Florida teaching certificate in early childhood education, grades 1-6. She began teaching for the Dade County Public Schools in 1973.

   
   

2. After several years of employment at Oak Grove, Ms. Hymon was observed crying in the classroom while students were present. In 1983, Respondent's principal, Beaulah Richards, observed that Ms. Hymon was having emotional problems, and asked Ms. Hymon if she needed help. The principal referred Ms. Hymon to the District's Employee Assistance Program (EAP). Respondent began a course of professional counseling for her emotional problems at the North Miami Community Mental Health Center that year.

   
   

3. Ms. Hymon has not followed through consistently with her counseling appointments. Each year as she exhausts her medical insurance benefits, she stops the counseling but resumes it again when the benefits become available the next year.

   
   

   1984/85 School Year

   
   

4. On October 11, 1984, Respondent's teaching was formally observed and evaluated in her fourth grade classroom by her principal, Robert Russell. He rated her performance unacceptable in techniques of instruction and student assessment techniques. The unsatisfactory rating in techniques of instruction was given because her instructional methods were not appropriate for the needs and abilities of her students. She taught the class as a total group, on one level, not implementing the standard practice of subdividing the class into two or three reading groups. She also failed to use any supplemental materials. Ms. Hymon was rated unsatisfactory in assessment techniques because she did not examine the pupils' work. There was no graded work in their folders.

   
   

5. The principal prescribed help to aid in overcoming her deficiencies. She was to observe two other teachers, to take inventory of the classroom

   materials, and to be given an additional classroom aide for at least two hours per week more than was customary.

   
   

6. On October 15, 1984, Mr. Russell held a conference with Respondent to discuss her observation and her prescription.

   
   

7. On November 20, 1984, Respondent was again formally observed in her fourth grade classroom by Mr. Russell. She was rated unsatisfactory in classroom management because she had difficulty in keeping students focused on learning. She was rated unsatisfactory in techniques of instruction because she did not identify areas likely to be confusing to students before the lesson began and she did not give individual students clarification when they needed it.

   
   

8. Mr. Russell again prescribed help to aid Ms. Hymon in overcoming her deficiencies. She was directed to review sections of the Teacher Assessment and Development System (TADS) Manual to provide her with ideas for classroom management and teaching strategies. She was to observe a reading class. Other teachers were to perform demonstration lessons for her.

   
   

9. On November 27, 1984, Mr. Russell held a conference with Respondent to review her observation and prescription.

   
   

10. On December 14, 1984, Mr. Russell held a conference-for-the-record with Respondent to put her on notice that her unacceptable performance could lead to disciplinary action if not remediated.

    
    

11. Respondent was formally observed in the classroom on January 24, 1985, February 20, 1985, and March 28, 1985. These observations were acceptable. Ms. Hymon had remediated her performance and received an overall acceptable evaluation for the 1984/85 school year.

    
    

12. At the end of that year, Mr. Russell changed Respondent's teaching assignment to the third grade in an attempt to help her become more effective. Third grade classes were smaller.

    
    

    1986/87 School Year

    
    

13. On December 9, 1986, Mr. Russell held an informal conference with Respondent to discuss unprofessional behavior between her and a fellow teacher. The two teachers had loudly and heatedly argued with each other in the teacher's lounge. Respondent admitted her behavior to the principal.

    
    

14. On February 13, 1987, Mr. Russell held a conference with Respondent and issued a letter of concern about conduct he deemed unprofessional. Ms. Hymon had neglected to give one of her students a report card and the student's parents complained to Mr. Russell. Respondent was directed to comply with School Board policy in the future about sending timely report cards home for all students.

    
    

15. Respondent was formally observed in the classroom by Mr. Russell on February 25, 1987. She was rated unacceptable in classroom management because numerous students were consistently off-task and she did not redirect them back to learning. Respondent failed to evaluate the students' progress during the class period.

16. Mr. Russell prescribed help to aid her in overcoming her deficiencies. She was to review certain sections of the TADS manual and observe two math classes. In addition, the assistant principal was to observe two of her classes and discuss them with her. A district math teacher would provide a demonstration lesson for her. Again, Respondent was given additional aide time.

    
    

17. On March 3, 1987, Mr. Russell held a conference with Respondent to review her observation and prescription.

    
    

18. On March 11, 1987, Mr. Russell held a conference-for-the-record with Respondent. Respondent was put on notice that disciplinary action could result from unremediated performance. Respondent's previous argument with the other teacher on February 13, 1987, was also addressed at this conference. The principal told Respondent that if incidents like these continued, she would be rated unacceptable in professional responsibilities (Category VII of TADS) and would be given a prescription.

    
    

19. On March 25, 1987, Mr. Russell held an informal conference with Respondent. During the conference, she had a blank-faced look, and did not respond to the principal's questions.

    
    

20. On March 30, 1987, Mr. Russell referred Respondent to the Employee Assistance Program because of inconsistent emotional behavior that affected the morale of her students and fellow teachers. She had developed a pattern of putting her head down in class and ignoring the students. Her emotional stability was inconsistent, with mood shifts from a passive, depressed demeanor to elation for no apparent reason. She was subject to moody outbursts.

    
    

    1989/90 School Year

    
    

21. For the 1989/90 school year, Mr. Russell changed Respondent's assignment to a kindergarten class. He had hoped that it would be easier for Respondent to work with younger children in a less demanding curriculum. In November 1989, her teaching was evaluated, and found acceptable.

    
    

22. On January 26, 1990, Mr. Russell again referred Respondent to the EAP for marked changes in mood and activity level. She was exhibiting the same types of behavior for which Mr. Russell had referred her on March 30, 1987, and Mrs. Richards had referred her in 1983.

    
    

23. On February 6, 1990, Mr. Russell held an informal conference with Respondent and issued a letter of concern to her. She had grabbed a kindergarten student in an unprofessional, confrontational manner, twisting him into his seat, using excessive restraint. She admitted this to Mr. Russell. They also discussed the fact that, despite a directive given at the faculty meeting on January 31, 1990, concerning the procedures for reporting to the office whenever parents were lingering in the halls, she had failed to report lingering parents on February 6, 1990, but engaged in an unprofessional, confrontational exchange of harsh words with a parent. Mr. Russell again directed Respondent to comply with school policies with regard to the handling of students, the reporting of lingering parents, and to refrain from conducting unprofessional conversations with parents. She was told that another violation of any of these policies could result in disciplinary action.

    
    

24. In March 1990, Ms. Hymon became frustrated with a student and threw a kindergarten child's notebook out of the window into the courtyard and the papers flew all over. This took place in front of visiting principals who were

    at the school for a meeting. Shortly thereafter, Respondent took a leave of absence from March 16 to April 5, 1990.

    
    

25. During May 1990, Respondent continued to exhibit frequent radical mood swings. She became hysterical in front of the assistant principal, Susie Robinson, and Mr. Russell. She was not properly supervising her students and allowed two boys to disappear from her classroom for an extended period of time. Respondent was the subject of numerous parental, student and teacher complaints. There were numerous instances of Respondent's screaming and yelling at students and parents. The parents complained about her discipline and the teachers complained about her arguments with them. As a result of an anonymous complaint to HRS about her treatment of students, an investigator came to the school. During this investigation Respondent's facial expression showed rage and she made a telephone call during which time she alternated between crying and whimpering. Respondent used profanity in front of administrators, e.g., "God damn," "shit." Mr. Russell requested that the Office of Professional Standards require Respondent to undergo an examination to determine her emotional fitness to continue teaching.

    
    

26. On May 23, 1990, Respondent was directed to an alternate assignment at the School Board's Region II office where she would not have contact with students, while the Board's Security Investigative Unit (SIU) investigated the parental complaints and the anonymous HRS complaint.

    
    

27. During the 1989/90 school year, Respondent was not an effective teacher. Her conduct had a negative, detrimental impact upon the students. Nevertheless, Respondent's annual evaluation for the 1989/90 school year was acceptable because it was based on the one classroom observation of November 8, 1989, which was acceptable. Mr. Russell did not find Respondent unacceptable in Category VII (Professional Responsibility), because Respondent had not been afforded her full due process rights. He had made the referral to the Office of Professional Standards and was awaiting a decision on the fitness determination. In addition, he was awaiting the results of the SIU investigation. Mr. Russell was still trying to help Ms. Hymon.

    
    

    1990/91 School Year

    
    

28. Respondent was formally observed in her third grade classroom on October 1, 1990, by her new principal, Dr. Elaine Lifton. Ms. Hymon's performance was unacceptable in techniques of instruction, because she presented a lesson so confusing that the students could not achieve the lesson's objectives. Respondent did not address the student's confusion. When they demonstrated unsatisfactory performance, she made no adjustment to her instruction, and gave students no suggestions on how to improve their performance. Respondent did not allow for oral interaction from the students; they had no opportunity to ask questions or to offer examples. The components of the lesson were inappropriately sequenced, for necessary background was not established and there was no closure to the lesson.

    
    

29. Dr. Lifton prescribed help to aid Ms. Hymon in overcoming her difficulties by referring her to various sections in the TADS Prescription Manual, in the hope that she could remediate her deficiencies though self- improvement.

    
    

30. On November 26, 1990, Dr. Lifton again formally observed Ms. Hymon in the classroom and found her unsatisfactory in techniques of instruction. Her overall performance had not improved--she was still confusing her students.

    Students who did not understand still were not provided suggestions for improving their performance. No adjustments were made to the instruction when only 10-12 of the 22 students understood the directions and concepts.

    Respondent still did not allow for oral interaction from the students.

    
    

31. Dr. Lifton again prescribed help in an attempt to aid Ms. Hymon in overcoming her deficiencies, but this time the prescription was more "hands-on." In addition to reviewing various TADS Prescription Manual sections, Respondent was to tape and review her lessons. She was to observe another teacher and discuss certain aspects of the lesson with that teacher.

    
    

32. On November 28, 1990, Dr. Lifton conducted a conference-for-the-record with Ms. Hymon. They reviewed her performance and the assistance that had been given. They reviewed the TADS process and the disciplinary action which could result from unremediated performance deficiencies. In addition, Dr. Lifton referred Respondent to the EAP because of erratic behavior, her third principal to do so. Ms. Hymon continued to exhibit swings from depressed to euphoric behavior.

    
    

33. Respondent next was formally observed in the classroom on December 4, 1990, by her assistant principal, Susie Robinson. Ms. Hymon was rated unsatisfactory in classroom management and techniques of instruction. She was rated unsatisfactory in classroom management because students were off task, talking, moving around, and not listening, but she did not correct them or redirect them.

    
    

34. Ms. Robinson found Ms. Hymon unsatisfactory in techniques of instruction because she did not involve all of the students in her lesson. She was only teaching to a small group.

    
    

35. Ms. Robinson prescribed help in an attempt to aid Ms. Hymon in overcoming her deficiencies. She was referred to various sections of the TADS Prescription Manual, and scheduled to receive help from Bertha Neely, the Regional specialist.

    
    

36. Ms. Neely assisted Respondent 10 to 12 times during the 1990/91 school year. Ms. Neely found Ms. Hymon's performance very inconsistent. She had good days and bad days, but more bad days than good. The class did not follow a consistent routine. Her students were inattentive and they appeared unaccustomed to following through on assignments. When they were off-task, Ms. Hymon made no attempts to redirect them. Students were allowed not to participate in a lesson at all. Ms. Neely helped Respondent and gave her suggestions. By her next appointment, Respondent would implement the suggestions and have an acceptable lesson. Then, when Ms. Neely would return, Respondent would revert to the unacceptable teaching methods. Ms. Neely found that the children tried to help Ms. Hymon, and treated her like a pet.

    
    

37. On January 31, 1991, Dr. Lifton held a conference-for-the-record with Ms. Hymon to discuss three instances of inappropriate interpersonal on-the-job behavior with teachers, parents, and people from the community. The first, on January 15, 1991, concerned a fellow teacher, Ms. Beverly Gross. Respondent had approached Ms. Gross and had started to blame her and yell at her for scheduling Youth Fair activities during February, Black History month. Ms. Gross was not on the committee responsible for scheduling Youth Fair activities. The confrontation had a racial overtone, as Respondent accused Ms. Gross of having a "plantation mentality." Ms. Gross tried to calm Respondent, but Respondent continued to complain loudly to fellow teachers in the hall and in front of

    students who were entering the office. The principal already had held a meeting with Respondent on that day during which Respondent admitted the incident and regretted what had happened; however, during the January 31 conference, Respondent denied the substance of the incident except for using a loud voice with Ms. Gross. The second incident discussed was a confrontation with a parent, Mr. Willie Kemp, on January 25, 1991. Mr. Kemp was late for a meeting with Respondent. When the school registrar contacted Respondent on the intercom system, Respondent's response caused Mr. Kemp to become angry. Respondent then entered the school office loudly complaining that people were playing games with her and she did not like it. Dr. Lifton had to calm the parent down and the school counselor had to calm Ms. Hymon down. The third matter discussed was a confrontation with a business person from the community, Ms. Cheryl Raleigh.

    Ms. Raleigh operates a pizza restaurant in the Oak Grove neighborhood. A colleague of Ms. Hymon had ordered pizza from Ms. Raleigh and there was some confusion in the order. Respondent took it upon herself, during her lunch period, to call Ms. Raleigh to "set her straight." Respondent said to Ms.

    Raleigh: "I am presently a member of the Oak Grove staff and if you cannot act like you are supposed to, I'll call the NAACP and CORE to see if you can learn some manners." Ms. Raleigh complained about the incident to the region office and notified Dr. Lifton. That day Ms. Hymon admitted having made the statement, that she was loud, and that perhaps she had come across in an angry manner. At the January 31 meeting, however, Respondent denied the content of the conversation but did acknowledge the use of poor judgment in involving herself in make the telephone call. Dr. Lifton wrote a letter of apology to Ms. Raleigh and Ms. Hymon volunteered to call Ms. Raleigh to apologize.

    
    

38. On February 25, 1991, Respondent was formally observed in the classroom by Dr. Lifton and a principal from another school, Steven Lovelass. This was an external review, which takes place after a prescribed number of unacceptable observations. Both observed a lesson at the same time and independently rated Ms. Hymon. They then merged their data and prepared a prescription.

    
    

39. Both observers rated Ms. Hymon unsatisfactory in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This lesson was inadequate, and was worse than the previous lessons formally observed. It was disorganized and Ms. Hymon's classroom management was weak.

    
    

40. Ms. Hymon was rated unsatisfactory in preparation and planning because her lesson plan did not provide for homework. She was rated unsatisfactory in knowledge of subject matter because Respondent moved indiscriminately from activity to activity without developing an appropriate sequence. Twenty out of a class of 23 students were off-task or confused. Respondent did not adequately define vocabulary words she used in the lesson. Respondent was found unsatisfactory in classroom management because she did not begin the instructional activities promptly. Ten minutes were wasted with housekeeping chores such as roll-taking, collecting homework, distributing papers and addressing organizational tasks such as locating papers and books for the day's lesson. During the lesson, seven students sharpened pencils and five asked for paper and pencils. Two students were permitted to leave to go to the restroom and were gone for 15 minutes. These students presented behavioral problems and should not have been allowed to depart together. They were not addressed when they came back. Respondent's transition from reading to writing was disjointed and the students were unable to follow the lesson. Respondent was rated unsatisfactory in techniques of instruction because students were not given feedback about their deficiencies, and those who had difficulty were given no

    assistance. Respondent did not make adjustments to the instruction when necessary. She stopped the class in the middle of a reading selection, which meant that the students could not answer lesson questions on their worksheets. The lesson was fragmented, not properly sequenced, and did not have closure.

    
    

41. The observers prescribed help in order to aid her in overcoming her deficiencies. This time the prescription was again a "hands-on" approach, less abstract and more specific. Ms. Hymon was directed to include homework assignments as part of her lesson plans. Respondent was again given exercises to complete out of the TADS Prescription Manual. She was directed to tape her lessons and to observe at least one language arts lesson and to describe particular aspects from those lessons.

    
    

42. During the week of January 7, 1991, teachers at Oak Grove were provided with Weekly Bulletin No. 23, directing them to comply with district policies on grading and attendance.

    
    

43. On February 27, 1991, Dr. Lifton reviewed Respondent's gradebook and found that it was out of compliance with district grading policies and local school directives. Her gradebook did not have a grading code and the grades were not labeled. Attendance was not maintained in the gradebook. Respondent was directed to maintain up-to-date records of specific assessments and of attendance in her gradebook, and was told that failure to comply with this directive would be viewed as insubordination.

    
    

44. In May of 1991, Ms. Neely conducted a formal observation of Respondent and found her teaching acceptable. Ms. Neely attributed Respondent's success to the preparation she had given Ms. Hymon the week before; however, Ms. Neely found that Respondent subsequently did not perform acceptably and could not teach appropriately without continuous support.

    
    

45. Respondent's annual evaluation for the 1990/91 school year was unacceptable.

    
    

46. Dr. Lifton conducted a conference-for-the-record with Respondent on June 4, 1991. They discussed Respondent's performance and her future job status. Ms. Hymon was notified of the potential negative impact on her employment if her performance deficiencies were not corrected. Respondent was given a detailed prescription in an effort to help her over the summer.

    
    

    1991/92 School Year

    
    

47. Dr. Lifton changed Respondent's teaching assignment to the second grade level in an effort to give her a greater opportunity for success. The scope of material in second grade is easier to teach, since much of it is a review of first grade work.

    
    

48. Ms. Neely continued to help Respondent during the 1991/92 school year, but not as often.

    
    

49. Respondent was next formally observed in the classroom on October 14, 1991, by Dr. Lifton. She was rated unsatisfactory in knowledge of subject matter and techniques of instruction. This was a very poor lesson with many serious errors in content and sequence. Respondent confused the signs for "greater than" and "less than" six times, which confused her students. Respondent's sequencing was not logical. She jumped from unfinished examples to dissimilar patterns, again confusing the students. Respondent was rated

    unsatisfactory in techniques of instruction because of the poor sequencing and because necessary topics were not included in the lesson.

    
    

50. Respondent was prescribed help in an effort to aid her in overcoming her deficiencies. Again, Dr. Lifton gave her a concrete prescription. Respondent was directed to the mathematics teacher's manual and was directed to specifically follow the directions. She was also to observe a fellow teacher at Oak Grove and another excellent teacher at another elementary school.

    
    

51. Respondent was next formally observed in the classroom by Ms. Robinson on November 26, 1991. She was rated unsatisfactory in knowledge of subject matter because of numerous errors in her presentation.

    
    

52. Respondent was prescribed help in an effort to aid her in overcoming her deficiencies. Two of her fellow teachers were to observe her and give her suggestions regarding subject matter. Respondent was to observe her department chairperson teach.

    
    

53. On December 9, 1991, Dr. Lifton conducted a conference-for-the-record with Respondent to review her performance and job status. Dr. Lifton told Ms. Hymon that she needed to remediate her deficiencies in order to continue her employment.

    
    

54. Respondent was next formally observed in the classroom by Dr. Lifton on January 16, 1992. She was rated unsatisfactory in preparation and planning, classroom management and teacher-student relationships.

    
    

55. Respondent was rated unacceptable in preparation and planning because very little of her lesson was covered. Her lesson contained three objectives but only covered one. The students could have completed more than the one activity during the 35 minutes.

    
    

56. Respondent was rated unsatisfactory in classroom management because of wasted time in starting the class and during the lesson.

    
    

57. Respondent was rated unsatisfactory in teacher-student relationships because she did not encourage students who responded poorly or who were having difficulty. She did not give assistance to students who made incorrect responses. She did not solicit involvement from students who did not participate, but only called on the students who were not having difficulty. Out of 21 students, 11 were not called upon, while one was called upon eight times.

    
    

58. Respondent was prescribed activities in an attempt to aid her in overcoming her deficiencies. She was to prepare a checklist of objectives for every lesson and to check off all those that were covered. She was to develop a system of distributing papers, books, and materials so that less time would be spent doing these ministerial tasks. She was to observe another teacher's class for techniques and strategies to involve all students in class activities.

    
    

59. Another external review was conducted on March 5, 1992, by Dr. Lifton and Marguerite Radencich, the district's reading supervisor. Respondent was rated unsatisfactory by both observers in knowledge of subject matter and techniques of instruction.

    
    

60. Respondent was rated unsatisfactory in knowledge of subject matter because while presenting a lesson on the vocabulary words "desire," "crave," and

    "require," Respondent gave the same definition for two of the words, thereby confusing students. Moreover, the examples she gave could have applied to more than one of the words, further confusing the students.

    
    

61. Respondent was rated unsatisfactory in techniques of instruction because while preparing the students for the Stanford Achievement Tests (SAT), she used a worksheet in which the reading level was too high for the students so they did not understand the humor in the story. In addition, the worksheet was not a timed exercise and was not multiple choice, as is the SAT.

    
    

62. Respondent was prescribed help in an attempt to aid her in overcoming her deficiencies. She was to research and write strategies for teaching vocabulary words. She was to identify them on her lesson plans and to monitor them. She was to meet with the grade level chairperson to review SAT preparation techniques. She was to meet with the grade department chairperson to review the next two weeks of the basal reader lessons and to write out sequencing of lesson components in her lesson plans.

    
    

63. Respondent's annual evaluation for the 1991/92 school year was unacceptable.

    
    

64. On June 17, 1992, Dr. Lifton held a conference-for-the-record with Ms. Hymon. They reviewed her unsatisfactory teaching performance, and the fact that she had filed 108 accident reports that year for students she was assigned to supervise. Respondent was given an end-of-the-year prescription and was given directives to maintain a safe learning environment in her classroom and to employ preventive strategies to decrease the number of class-related injuries.

    
    

65. On numerous occasions throughout Respondent's employment, she was informally observed by various administrators to have the same or similar deficiencies which were observed during the formal observations. There were times when things went well and other times when her teaching was poor. She was subject to mood swings. She was observed with her head down in the classroom. At times she sat in the dark with her hands folded and appeared upset; on occasion, she was too angry to teach. Respondent would have to go to the teachers' lounge to lie down and sometimes her husband was called to calm her down. This called him away from his duties as a Dade County public school teacher.

    
    

66. When Ms. Hymon had lapses of emotional stability, she felt unable to manage life, was very anxious and excitable. During the last 4-5 years, she has called her therapist about five times from school while she was experiencing an emotional lapse, so that she and her therapist could "talk it out."

    
    

67. Based on her conduct when viewed as a whole, she has failed to teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction. She used isolated worksheets as the basis for her teaching. The worksheets were not developmentally appropriate for young children. She did not use the basal reader approved by the School Board, which is a developmental reading series. She was not following the School Board's curriculum.

    
    

68. Respondent failed to communicate with and relate to the students in her class to such an extent that they were deprived of a minimally acceptable educational experience. When she had her head down or was experiencing mood swings, she was not fulfilling her duties as a teacher. If she became upset in the morning, she would not calm down for the rest of the day. When she was

    teaching, the students were generally not actively involved in the learning. The subsequent teachers for her students had to pay "catch up" with them.

    
    

69. In spite of Respondent's emotional instability, there were days when she was observed to present an adequate lesson. The bad days, however, outnumbered the good days. Her students cannot be required to suffer while Respondent is attempting to overcome her emotional problems.

    
    

70. Respondent's behavior in dealing with parents, students, staff members and members of the community did not reflect credit upon herself and the school system. Her behavior indicated that she did not value the worth and dignity of every person. She did not exercise good professional judgment. She failed to maintain the respect and confidence of her colleagues, students, parents, and members of the community. She did not make a reasonable effort to protect her students from conditions harmful to learning, health or safety. She subjected students to unnecessary embarrassment or disparagement.

    
    

71. Respondent was offered a position as a paraprofessional so that she could maintain a job and fringe benefits while she undergoes treatment. She would have aided a teacher and would not have been responsible for a class. Respondent declined the offer, however.

    
    

72. On August 19, 1992, the School Board suspended Respondent and initiated dismissal proceedings against her.

    
    

    CONCLUSIONS OF LAW

    
    

73. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1991).

    
    

74. Since the Board seeks to dismiss Respondent as an employee, it has the burden to prove the allegations of its Notice of Charges by a preponderance of the evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

75. Section 231.36(4)(c), Florida Statutes, provides in pertinent part that:

    
    

    . . . any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on . . . incompetency. . . .

    
    

76. Rule 6B-4.009, Florida Administrative Code, sets these criteria for discipline:

    
    

    Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . .

       1. Inefficiency:

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

          2. repeated failure on the part of a teacher

          to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of a minimum educational experience. . . .

       2. Incapacity:

          1. lack of emotional stability; . . .

             
             

77. Section 231.09, Florida Statutes, which is referenced in Rule 6B- 4.009(1)(a), Florida Administrative Code, provides:

    
    

    Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching

    efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

    
    

78. In implementing this statutory provision, the Board adopted Rule 6Gx13-4A-1.21, which states:

    
    

    1. Employee Conduct

       
       

       All persons employed by The School Board of Dade County, Florida, are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.

       
       

    2. Records and Reports

    
    

    All personnel shall keep all records and shall prepare and submit promptly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives.

    
    

    * * *

    
    

    V. Instructional Personnel

    
    

    Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the rules of the State Department of Education.

    
    

79. More specific standards for educators' conduct are found at 6B-1, Florida Administrative Code. These state:

    
    

    6B-1.001 Code of Ethics of the Education Profession in Florida.

    * * *

    1. The educator's primary professional concern will always be for the student and for the development of the student's potential.

       The educator will therefore strive for professional

       growth and will seek to exercise the best professional judgment and integrity.

    2. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    
    

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

    2. Violation of any of these principles shall subject the individual to revocation or suspension

       of the individual teacher's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

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

          * * *

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

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

          * * *

    4. Obligation to the public requires that the individual:

       1. Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.

    
    

80. The School Board has promulgated School Board Rule 6Gx13-5D-1.08, which requires teachers to keep good order in the classroom and in other places where they are assigned responsibility for students.

    
    

81. School Board Rule 6Gx13-6A-1.23 requires regular purposeful homework as an essential element of the instructional process. The labor contract between the School Board and the teachers' union requires teachers to include homework assignments in their weekly lesson plans.

    
    

82. School Board Rule 6Gx13-5B-1.04, the Pupil Progression Plan, provides that student grades are one of the primary means of communicating student progress and achievement. Specific guidelines are delineated. Report cards are to be issued to all students.

    
    

83. The Labor Contract between the School Board and the teachers' union, provides at Article XII, Section 2, that:

    
    

    * * *

    Any teacher whose performance is assessed as unacceptable in any observation category shall be entitled to a plan of professional growth practices which shall include reasonable time frames for implementation. The established teacher assessment/evaluation instruments and procedures shall be used for identification of any teaching deficiencies and the plan of appropriate professional growth practices. . . .

    Teachers shall follow the growth practices required. Failure to implement required professional growth practices or to correct deficiencies for which professional growth was required shall constitute just cause for disciplinary action in accordance with the due process provisions in this Contract. (Emphasis added.)

    
    

84. On the allegations of incompetency, the Board has met its burden by the greater weight of the evidence. Ms. Hymon was unable or lacked fitness to discharge her required duty as a result of inefficiency or incapacity. Rule 6B- 4.009(1), Florida Administrative Code.

    
    

85. Rule 6B-4.009(1)(a) defines acts of inefficiency. The proof demonstrated that Ms. Hymon repeatedly failed to communicate with her students in a meaningful manner, which deprived them of a minimum acceptable educational experience. Those acts alone would be sufficient to find Ms. Hymon incompetent within the meaning of Rule 6B-4.0009(1)(a)(2) and Section 231.36(4), Florida Statutes.

    
    

86. The Board has also proven that Ms. Hymon committed acts which violate Rule 6B-4.009(1)(a)(1), Florida Administrative Code, by repeatedly failing to comply with School Board rules and contract provisions pertaining to efficient and faithful teaching, lesson plans, homework, correction of deficient teaching for which a professional growth plan was required, recordkeeping, report cards, student discipline, and employee conduct.

    
    

87. Petitioner has demonstrated that Respondent lacks emotional stability, in violation of Rule 6B-4.009(1)(b)(1), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The School Board of Dade County, Florida, enter a final order sustaining Ms. Hymon's suspension without pay and dismissing her from employment.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5531

The following are my rulings on proposed findings filed by the parties, as required by Section 120.59(2), Florida Statutes (1991).

Rulings on findings proposed by the School Board:

After careful review of my notes from the hearing, I find that the proposed findings of the School Board closely comport with my view of the evidence.

Consequently, all findings proposed by the School Board have, essentially, been adopted, though they have been edited.

Rulings on findings proposed by Ms. Hymon:

1. Adopted in Findings of Fact 1.

2. Rejected as unneccessary.

3. Adopted in Findings of Fact 1.

4. Implicit in Finding 11, 20 and 27. The first year she received an unacceptable annual evaluation was in the 1990/91 school year, although her performance was not actually acceptable in the 1989/90 school year for the reasons stated in Finding 27.

5. Adopted with the explanation found in Finding 27.

6. Adopted in Finding 45 and 63.

7. This Finding is made in several Findings of Fact, and had its beginning early in her period of employment, see Finding 2. Generally adopted in Findings

65 and 66.

1. Adopted in Finding 2, although the nature and the significance of the medication is not clear from the record made. The predominate form of dealing with her problem was counseling.

2. Rejected as not relevant. Although I believe that Respondent did attempt to perform her duties, the question is whether her teaching was adequate, not whether she tried to teach.

3. Adopted in Findings 28 through 66, although her performance in the 1989/90 school year was not actually acceptable, although she received an acceptable evaluation, see Findings 21 through 27.

COPIES FURNISHED:

Madelyn P. Schere, Esquire

Attorney for Dade County School Board 1450 Northeast Second Avenue

Suite 301

Miami, Florida 33132

William du Fresne, Esquire Du Fresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Octavio J. Visiedo, Superintendent School Board of Dade County

1444 Biscayne Boulevard

Suite 215

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 92-005531

Orders for Case No: 92-005531