STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LEE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2938

)

ROSALYN HAYWOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on May 10, 11, and 20, 1994. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee. The parties, counsel, witnesses, and court reporter were in Ft.

Myers.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Daniel H. Kunkel

Kunkel & Hament

Suite 785, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Anthony D. Demma

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.

PRELIMINARY STATEMENT

By Petition to Return Continuing Contract Teacher to Annual Contract dated April 1, 1993, Petitioner alleged that Respondent was notified, at least five days prior to April 1, 1993, that the Superintendent would recommend to the School Board on April 1, 1994, that Respondent be reduced from continuing contract to annual contract for the 1993-94 school year.

The petition alleges that Respondent's annual performance assessments for 1991-92 and 1992-93 were unsatisfactory. The petition alleges that Respondent's principal, Patti van Der Have, observed and provided assistance to Respondent, and had other persons do the same. Based on observations of September 4, 11,

and 28, October 16 and 23, November 13 and 30, December 9, February 18, and March 1 and 22, the petition alleges that Respondent demonstrated a continuing failure and/or refusal to use important instructional techniques.

The petition also alleges that Respondent failed to perform properly hall monitor duties. But Petitioner dropped this allegation during the hearing.

The petition alleges that, based on the principal's recommendation, the Superintendent concludes that Respondent should be reduced to annual contract because she failed to apply the teaching techniques required by the Principal and has failed or refused to perform hall monitor duties as required by the Principal. This constitutes "good and sufficient reason" for reduction to annual contract at the end of the school year pursuant to Section 231.36(4)(b), Florida Statutes.

The petition alleges that, on March 25, 1993, a person, acting on behalf of the Superintendent, notified Respondent that the Superintendent would recommend that Respondent be reduced to annual contract at the end of the school year.

The petition concludes with the allegation that the Superintendent recommends that Respondent be reduced to annual contract beginning July 1, 1993.

At the beginning of the hearing, Respondent renewed her motion to dismiss, which was served April 20, 1993. The hearing officer reserved ruling. The motion is denied for the reasons set forth in the conclusions of law.

At the hearing, Petitioner called seven witnesses and offered into evidence

19 exhibits. Respondent called six witnesses and offered into evidence 19 exhibits. All exhibits were admitted except Respondent Exhibits 9 and 14.

The transcript was filed June 14, 1994. Rulings on timely filed proposed findings are in the appendix.

FINDINGS OF FACT

1. Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois.

   
   

2. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well.

   
   

3. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary.

   
   

4. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students.

   
   

5. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable.

6. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years.

   
   

7. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom.

   
   

8. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes.

   
   

9. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class.

   
   

10. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students.

    
    

11. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives."

    
    

12. On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance.

    
    

13. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task.

14. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class.

    
    

15. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program.

    
    

16. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction.

    
    

17. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep.

    
    

18. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE

    students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class.

    
    

19. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan.

20. The observation form notes under targeted behaviors: Serious deficiencies continue to persist.

    INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY,

    AND VOLUME OF VOICE, USE EYE CONTACT, SMILE,

    LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior.

    
    

    The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992.

21. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background.

    
    

22. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development:

    
    

    Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children.

    
    

23. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm.

    
    

24. Ms. Rafferty did not mince words in concluding the observation narrative. She stated:

    
    

    I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change

    immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools.

    
    

    Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class.

25. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance.

    
    

26. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class.

    
    

27. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum.

    
    

28. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students.

    
    

29. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her.

    
    

30. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class.

    
    

31. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff.

    
    

32. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year

    
    

    to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having

    a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting

    additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on.

    
    

33. The memorandum concludes:

    
    

    I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program.

    
    

34. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve.

    
    

35. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing.

    
    

36. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

38. Section 231.36(4)(b) states:

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be dismissed or may be returned to annual contract status for another 3 years in the discretion of the school board, at the end

    of the school year, when a recommendation to that effect is submitted in writing to the school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the superintendent, by the principal if his contract is not under consideration, or by a majority of the school board. The employee whose contract is under consideration shall be duly notified in writing by the party or parties preferring

    the charges at least 5 days prior to the filing of the written recommendation with the school board, and such notice shall include a copy of the charges and the recommendation to the school board. The school board shall proceed to take appropriate action. . . .

    
    

39. Petitioner has proved that good and sufficient reasons existed for the return of Respondent to annual contract on April 13, 1993, effective July 1, 1993.

    
    

40. Respondent had ample notice under the statute as to the reasons upon which Petitioner was relying in taking this action. Krischer v. School Board of Dade County, 555 So. 2d 436 (Fla. 3d DCA 1990).

    
    

41. The notice is derived in part from Ms. van der Have's March 25, 1993, performance assessment and memorandum. A week later, the superintendent's office acted on the principal's recommendation. The March 30 and April 1 documents from the superintendent's office add nothing to Ms. van der Have's much more detailed statement of the reasons for the action and obviously rely exclusively on her recommendations and reasoning.

    
    

42. Because the statute authorizes the principal to make the recommendation to the school board, there is no reason why the recommendation from the superintendent's office may not be interpreted in pari materia with the more-detailed recommendation from the principal, especially when, as here, Respondent could not legitimately claim surprise or prejudice given the number and extensiveness of recent observations.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year.

ENTERED on July 18, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994.

APPENDIX

Rulings on Respondent's Proposed Findings

1 (except last sentence): adopted or adopted in substance.

1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance.

5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance.

12-20: rejected as irrelevant and subordinate.

21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas.

21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents.

22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance.

26: rejected as irrelevant and subordinate.

27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music.

28-30: rejected as irrelevant and subordinate.

31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the

appropriate weight of the evidence.

46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence.

47-48: rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Daniel H. Kunkel Kunkel & Hament

Suite 785, 1800 Second St.

Sarasota, FL 34236

Anthony D. Demma

Meyer and Brooks, P.A.

P.O. Box 1547 Tallahassee, FL 32302

Office of the Superintendent 2055 Central Ave.

Ft. Myers, FL 33901-3916

Hon. Douglas L. "Tim" Jamerson Commissioner of Education

The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 93-002938

Orders for Case No: 93-002938