STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHLANDS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3447

)

WILLIAM KING BEARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Sebring, Florida, on November 2, 5 and 11, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: James F. McCollum

James F. McCollum, P.A.

129 South Commerce Avenue Sebring, Florida 33870-3698

For Respondent: Anthony D. Demma

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is entitled to be issued a new professional service contract.

PRELIMINARY STATEMENT

By letter dated May 25, 1993, Petitioner informed Respondent that he had failed to remove all deficiencies from his evaluation and he would not be issued a new professional service contract for the following school year.

By letter dated May 25, 1993, Respondent requested a formal hearing.

At the hearing, Petitioner called 16 witnesses and offered into evidence three exhibits, including a personnel file containing 514 numbered pages to which reference is made in the transcript by page number. Respondent called two witnesses and offered into evidence two exhibits. With leave of the undersigned, Respondent filed on November 19, 1993, as a late- filed exhibit, the deposition transcript of Linda Cronin-Jones. All exhibits were admitted.

The transcript was filed December 28, 1993. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Background

   
   

   1. Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County.

      
      

   2. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section

      2 contains 15 categories that are marked based on classroom observations and experience with the teacher.

      
      

   3. The back of the evaluation form explains the marks as follows: Mark Description

      Commendable (C) Indicates exceptional performance of the

      identified behavior(s).

      
      

      Satisfactory (S) Indicates satisfactory performance of the

      identified behavior(s)

      
      

      Needs Improvement (NI) Indicates a need for the employee to

      strengthen/improve performance of the identified behavior(s).

      
      

      Must Improve (MI) Indicates a need for the employee to

      remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected.

      
      

   4. The back of the evaluation form explains the "NEAT Procedure/Due Process":

      
      

      When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows:

      Notice--The employee has the right to receive full written notification of the identified deficient behaviors.

      Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient.

      Assistance--The employee has the right to receive assistance in remediating the deficient behavior.

      Time--The employee has the right to a reasonable amount of time to achieve remediation.

   5. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process.

      
      

   6. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year.

      
      

   7. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part:

      
      

      1. When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur.

      2. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate

         [Professional Development Plan]. The plan shall include the following:

         1. Area to be improved: specify the identified problem.

         2. Specific desired improvement: write as a measurable goal or objective.

         3. Action to be taken: describe action the involved parties will complete to achieve desired improvement.

         4. Assistance plan: List and describe who will provide assistance, showing role of each participant.

         5. Time line: specify dates for each activity to be completed and evaluated.

         6. Evaluation: describe how and when evaluation of progress or success will occur.

         7. Consequences: specify consequences if improvement is not achieved satisfactorily.

            
            

         8. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety:

            
            

            For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed.

            
            

            Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a

            Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT)

            
            

            If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute.

            
            

            On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE.

            
            

         9. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI.

            
            

         10. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states:

             
             

             Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure.

         11. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or

             power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract].

         12. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances.

             
             

         13. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students."

             
             

         14. Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment.

             
             

2. Evaluations Prior to 1991-92 School Year

   
   

   1. Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching.

      
      

   2. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School.

      
      

   3. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School.

      
      

   4. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible.

   5. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible.

      
      

   6. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible.

      
      

   7. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School.

      
      

   8. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible.

      
      

   9. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator.

      
      

3. Evaluations During 1991-92 School Year

   
   

   1. A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991.

      
      

   2. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise.

      
      

   3. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth.

   4. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics.

      
      

   5. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste."

      
      

   6. Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved."

      
      

   7. Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation."

      
      

   8. Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc."

      
      

   9. Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem."

      
      

   10. Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you."

       
       

   11. Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude.

       
       

   12. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI."

   13. Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract."

       
       

   14. By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's.

       
       

   15. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five

       (5) days for gross insubordination."

       
       

   16. Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly

       worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink.

       
       

   17. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI.

       
       

   18. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous."

       
       

   19. Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child."

       
       

   20. Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair."

   21. Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator."

       
       

   22. Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October

       92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract.

       
       

   23. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year.

       
       

4. The Grievance Process

   
   

   1. On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration.

      
      

   2. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'"

      
      

   3. The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April

      7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94."

      
      

   4. Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans.

      
      

   5. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules.

   6. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls.

      
      

   7. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students."

      
      

   8. Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn.

      
      

   9. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments.

      
      

   10. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm.

       
       

   11. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May

       13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point.

       
       

   12. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)."

       
       

   13. On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year.

       
       

5. The 1991-92 School Year

   
   

   1. During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher.

      
      

   2. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students.

   3. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls.

      
      

   4. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension.

      
      

   5. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator.

      
      

6. Evaluations During the 1992-93 School Year

   
   

   1. As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention.

      
      

   2. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal.

      
      

   3. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics.

      
      

   4. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy."

      
      

   5. By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year.

      
      

   6. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent

      received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined."

      
      

   7. Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration."

      
      

   8. By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on

      
      

      the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude.

      
      

   9. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part:

      
      

      . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . .

      
      

   10. Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching.

       
       

   11. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract.

       
       

   12. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed.

       
       

7. The 1992-93 School Year

   
   

   1. Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93.

   2. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year.

      
      

   3. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues.

      
      

   4. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom.

      
      

   5. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom.

      
      

   6. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention.

      
      

   7. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary.

      
      

   8. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy."

   9. Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias.

      
      

   10. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem.

       
       

   11. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument.

       
       

   12. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542)

       
       

   13. At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent.

       
       

   14. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals.

       
       

   15. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal.

   16. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits.

       
       

   17. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination.

       
       

   18. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you."

       
       

   19. In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards.

       
       

   20. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade.

       
       

   21. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year.

       
       

   22. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents

       and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students.

       
       

   23. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior.

       
       

   24. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office.

       
       

   25. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior.

       
       

   26. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks.

       
       

   27. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop.

       
       

   28. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter.

       
       

   29. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help.

       
       

   30. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents.

       But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help.

   31. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.

       
       

       CONCLUSIONS OF LAW

       
       

   32. 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. All references to rules are to the Florida Administrative Code.)

       
       

   33. Section 231.36 contains two sets of provisions prescribing the means by which a school board may terminate a teacher under professional service contract. Section 231.36(3)(e) provides for the nonissuance of a new contract after completion of an additional one-year term following the year in which the superintendent has charged the teacher with unsatisfactory performance. Section 231.36(1)(a) provides for dismissal for just cause during the term of the teacher's contract.

       
       

   34. Section 231.36(3)(e) prescribes a two-step process in which the professional service contract is replaced a subsequent year contract and then, if the teacher fails to correct the performance deficiencies, a new professional service contract is not issued, leaving the school board free not to hire the teacher. Section 231.36(3)(e) states:

       
       

       A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s. 231.94(4), charges the employee with unsatisfactory performance as determined the 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 the provisions of 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:

       1. 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.

       2. 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.

       3. 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.

       4. 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. ...

          
          

   35. In the present case, Petitioner is attempting not to issue Respondent a new professional service contract following the expiration of the term of his subsequent year contract.

       
       

   36. Prior to the start of the 1992-93 school year, the superintendent charged Respondent with unsatisfactory performance; Respondent received notice of the charges and participated in an informal review, as required by Section 231.36(3)(e)1; and Respondent already requested and received a transfer to another school, as provided by Section 231.36(3)(e)2.

       
       

   37. The present case involves the provisions of Section 231.36(3)(e)3 and

   1. Section 231.36(3)(e)3 states that the teacher under a subsequent year contract shall receive "assistance," "inservice training opportunities," and periodic evaluations "so that he will be kept apprised of progress achieved."

1. Section 231.36(3)(e)4 states that, not later than six weeks prior to the close of the postconference period, the superintendent shall notify the employee in writing "whether the performance deficiencies have been corrected." If so, the teacher receives a new professional service contract. If not, the teacher is not issued a new professional service contract and the school board may elect not to reemploy the teacher for the following year.

   
   

2. Section 231.36(3)(e)4 also provides that the teacher may demand a hearing, and the teacher may raise, among other issues, the "sufficiency of the superintendent's charges of unsatisfactory performance." The last sentence of Section 231.36(3)(e) indicates that a teacher otherwise is not entitled to an administrative hearing on the superintendent's decision to place the teacher on a subsequent year contract.

3. Thus, the Section 231.36(3)(e) case involves three issues: whether the performance deficiencies cited in the spring of 1992 were sufficient; if so, whether they were uncorrected during the 1992-92 school year; and, if so, whether Petitioner complied with applicable statutory and contractual requirements of assistance and notice.

   
   

4. The first issue is not difficult. In effect, the evaluation of December 2, 1991, is superseded by the evaluation of March 3, 1992. The performance deficiencies cited in the March 3 evaluation are quite serious and legally sufficient to justify nonissuance of a new professional service contract if not timely corrected. The areas involve each of the three groups of persons with whom a teacher must interact in order to maintain effectiveness: students, parents, and administrators. The cited deficiencies are not technical in nature, but involve important issues within each of these relationships.

   
   

5. Respondent argues that the Appraisal Booklet limits unsatisfactory evaluations to those evaluations in which an employee receives at least three MI's. However, this requirement applies only to the conditions under which Petitioner will report a teacher to the Department of Education.

   
   

6. The second issue is whether Respondent has corrected the deficiencies. A review of the evidence suggests that this too should not be a difficult issue. But Petitioner's handling of Respondent's case--while effectively rebutting any inference of a conspiracy against Respondent (or at least an effective conspiracy)--raises a problem.

   
   

7. The Professional Development Plans attached to the December 2 evaluation clearly informed Respondent that he only had to eliminate the MI's within a certain time in order to avoid the consequence of being returned to annual contract. Inadequate attention was given to the preparation of the Professional Development Plans.

   
   

8. The Professional Development Plans accompanying the March 3 evaluation omit any mention of the necessity to remove MI's in any of the cited areas, except for student/staff relations. In the later evaluation, Mr. Smith, who had seen a worsening of the situation following the December 2 evaluation, demanded that Respondent make immediate improvement in all cited areas, including student/staff relations, which, as noted above, also referenced the removal of the MI.

   
   

9. During the ensuing grievance process, Respondent sought confirmation of the original deadline for remediation. Additionally, Respondent had asked Mr. Smith, when presented with the December 2 evaluation, if all Respondent needed to do was get S's. On the other hand, Mr. Smith persisted in his April 7 memorandum to use the language of the December 2 evaluation, rather than the March 3 evaluation, when he wrote that Respondent had to remove the MI's from his evaluation in the 1992-92 school year and, if he did not, his contract would not be renewed.

   
   

10. Unfortunately, the Appraisal Booklet is of little use in determining whether performance deficiencies are corrected by ratings of merely NI in the subsequent year. The NI rating receives little attention. In the discussion of the MI, the Appraisal Booklet asserts only: "If the deficiency is not corrected during the second year, it may be grounds for non- renewal."

11. Of course, the issue is presented because, during the 1991-92 school year, Respondent, in effect, removed his MI's. Respondent did not quite replace all of his MI's in the March 6, 1992, evaluation with S's or C's in the November 3, 1992, evaluation. Under maintains effective classroom control, in which Respondent received an MI on March 6, he received an NI on November 3. In any event, by his second evaluation on February 25, 1993, Respondent received NI's in four areas in which he had received MI's on March 6: parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. The only difference on the April 26, 1993, evaluation was that Respondent received an S in professional behavior/ethics.

    
    

12. On balance, the correction of the MI's on the March 6, 1992, evaluation required more than merely receiving NI's. While Petitioner's paperwork is not entirely free from ambiguity on this point, there is no evidence that Respondent labored under a misapprehension. To the contrary, Respondent seemed to know that he needed to eliminate the problems in these areas by earning at least an S in each of them. It is also logical that a problem area is not "corrected" when it still needs improvement. Respondent benefitted from the inexperience of Mr. Robinson and benevolence of Dr. Goddard in the ratings that Respondent received during the 1992-93 school year--a period in which his performance was by any objective standard worse than his performance during the prior school year when he received worse ratings from Mr. Smith.

    
    

13. The third issue is whether Petitioner complied with the statutory and contractual requirements of assistance and notice. Again, Petitioner's handling of the matter unnecessarily complicates these issues.

    
    

14. Section 231.36(3)(e)3 requires that Respondent receive during the subsequent year of employment "assistance and inservice training opportunities," as well as periodic evaluations to keep him informed of his progress. Likewise, the NEAT procedures to which Petitioner is contractually obligated require "assistance in remediating the deficient behavior."

    
    

15. Petitioner argues that the union contract requires the teacher to approach the administration for assistance, and this is the tenor of the Professional Development Plans attached to the evaluations of December 2, 1991, and March 3, 1993. Petitioner takes solace in the fact that Respondent did not request assistance.

    
    

16. Petitioner's posture on the issue of assistance is understandable given the limited assistance offered Respondent. The proximity of Respondent's workshop and visit to the other high school English class to the February 25 evaluation undermine the value of these interventions as genuine offers of assistance. Somewhat better is Dr. Goddard's insistence upon the presence of another administrator at parent/teacher conferences, although Respondent's outrageous behavior with parents was unchastened by the presence of other teachers and administrators.

    
    

17. More importantly, Mr. Robinson intervened early with advice concerning the use of assertive discipline and later gave Respondent a set of videotapes to watch. The distinction between a live inservice workshop and a videotape presentation is unimportant in this case. Also, Dr. Goddard visited Respondent's classroom frequently, and he and other administrators frequently gave Respondent suggestions on his teaching methods.

18. At the same time, Respondent has never proved himself receptive to guidance from administrators. And any inhibitions among administrators in this regard may be partly attributed to the confrontational, paranoid behavior of Respondent, whose unreceptiveness merited an NI as early as February, 1991.

    
    

19. The next issue is the adequacy of the notice that Petitioner would not issue Respondent a new professional service contract. Again, Petitioner's casual handling of the matter complicates resolution of the issue. Petitioner asserts that the superintendent's letter of May 25, 1993, is at least six weeks before the end of the postconference period, and Respondent asserts that the letter is not. The record does not disclose when the postconference period ends. However, it appears unlikely that it would have ended more than six weeks after May 25, 1993. Thus, the May 25 letter was not issued within six weeks prior to the close of the postconference period for the 1992-93 school year.

    
    

20. An employee employed under a continuing contract, which resembles a professional service contract, is entitled to strict compliance with the statutes governing pretermination notice. Burns v. School Board of Palm Beach County, 283 So. 2d 873 (Fla. 4th DCA 1973).

    
    

21. Through the end of the 1991-92 school year, Respondent held a professional service contract. However, for the 1992-93 school year, he was under a subsequent year contract. The only issue Petitioner has raised in connection with the events of the 1991-92 school year is the sufficiency of the charges of unsatisfactory performance. The adequacy of the notice of the replacement of Respondent's professional service contract with a subsequent year contract is not an issue in the present case. Thus, the Burns decision is not controlling.

    
    

22. The notice issue in the present case involves the timeliness of the May 25, 1993, letter. This is the letter that informs Respondent that he would not be issued a new professional services contract for the 1993-94 school year. By this time, Respondent no longer enjoyed an automatically renewing professional service contract, but was subject to a subsequent year contract, which more closely resembles an annual contract.

    
    

23. The adequacy of the May 25 letter as timely notice is governed by Krischer v. School Board of Dade County, 555 So. 2d 436 (Fla. 3d DCA 1990) (per curiam). In Krischer, deficiencies in a teacher's performance resulted in her being placed on a subsequent year contract. During the subsequent year, she attended three meetings at which her deficiencies were discussed by administrators. At the last meeting, which evidently took place after the statutory deadline for termination, the teacher was advised that the principal would be recommending the nonrenewal of her contract. The court held that the "technical violation" of the notice was harmless because her deficiencies had been discussed repeatedly.

    
    

24. In the present case, the tardiness of the May 25 letter is harmless. Respondent was well aware of his deficiencies and his deteriorating performance during the 1992- 92 school year. Administrators had discussed these matters with Respondent numerous times. Dr. Goddard had informed Respondent of Dr. Goddard's adverse employment decision by letters dated March 19 and April 26, 1993. Nothing in the record suggests any reason why the superintendent would not follow Dr. Goddard's advice on this personnel matter.

25. Respondent devotes considerable argument in his brief to Section 231.36(1)(a), which requires that teachers' contracts contain a provision allowing

    
    

    dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

26. Rule 6B-4.009 defines "incompetency" as "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." The rule requires that the determination be based on either:

    
    

    1. Inefficiency: . . . (2) repeated failure on the part of a teacher to communicate with and related to children in the classroom, to such an extent that pupils are deprived of minimum educational experience . . ..

    2. Incapacity: (1) lack of emotional stability . . ..

       
       

27. Respondent argues that Petitioner must prove incompetency in order to show that Respondent failed to correct performance deficiencies such that he is not entitled to a new professional service contract. Respondent argues that Petitioner has failed to prove that Respondent is incompetent within the meaning of the statute and rule.

    
    

28. Section 231.36(1)(a) and Section 231.36(3)(e) describe two entirely different procedures by which a school board may terminate the employment of a teacher. Because Petitioner elected to proceed under the more time-consuming procedure set forth in Section 231.36(3)(e), Petitioner is not required to prove statutory and regulatory incompetence in order to show that Respondent has not timely corrected performance deficiencies. However, Petitioner's proof is adequate to show both inefficiency and incapacity and, thus, to establish incompetency, as defined the Rule 6B-4.009.

    
    

29. In his brief, Respondent writes:

    
    

    . . . the evidence indicates only that [Respondent] wrote more referrals than the administration would have liked, that his use of irony and humor in the classroom was sometimes misinterpreted as harmful sarcasm, that he became frustrated with two hostile, accusative parents, and that he used the word "damn" at two parent conferences or meetings. Such conduct does not constitute incompetence. What is most significant about the testimony presented is the absence of any evidence to indicate that [Respondent] was unwilling or unable to effectively communicate course content to his students.

    In fact, the testimony and evaluation

    documents consistently indicate that the lessons observed formally were executed very capably.

    
    

30. This passage understates and misstates the evidence and overstates the value of the classroom observation, during which time Respondent managed to remain on good behavior. Respondent did not merely write more referrals than the administrators would have liked. Respondent routinely engendered disrespectful behavior by his sarcasm and, having created the conditions for a complete breakdown in classroom discipline, found himself unable to bear the consequences when students became insubordinate. At this point, Respondent angrily referred mass numbers of students to the administration for resolution.

    
    

31. The "irony and humor sometimes misinterpreted as harmful sarcasm" represented at times bitter attacks on the self- esteem of a number of students-

    -sometimes accompanied by corrosive humor, sometimes not. The sarcasm permeated the classroom atmosphere and bred a relationship of mutual distrust and disrespect, as is evidenced by the enormous number of disciplinary referrals that Respondent issued.

    
    

32. The frustration that Respondent assertedly displayed toward two accusatory parents is untethered to the record. To the contrary, Respondent, when unable to avoid contact with parents, presented a startling portrait of emotional instability. Stalking out of one meeting with a teacher/parent during the 1991-92 school year, repeatedly confronting a parent during the 1992-93 school year, and irrationally misconstruing the intentions of a mother and role of Mr. Robinson in another conference during the 1992-93 school year, Respondent's performance in parent/teacher conferences simply defies description.

    
    

33. Utterance of an occasional "damn" misses the point, as does evidence that Petitioner presented that Respondent was responsible for lost or damaged books and missing computer keys, that he continually ignored the dress code, that he occasionally wore sunglasses in the classroom, that he shaved his head during winter break, or that he ignored the exhortations of Mr. Smith to teach more grammar and less literature and poetry. Under either the "uncorrected performance deficiencies" or "just cause" approach, this case has nothing to do with such prosaic concerns.

    
    

34. From the perspective of Rule 6B-4.009, the salient facts are that Respondent repeatedly failed to communicate with and relate to numerous students, such that they were deprived of the benefit of his considerable knowledge of literature, as well as a minimal educational experience.

    
    

35. From the perspective of Rule 6B-4.009, the salient facts are that Respondent lacked emotional stability, as evidenced by Respondent's obstinate distrust of all administrators coupled with his obdurate refusal to make the most basic and obvious recommended changes in behavior, the bizarre sign on the chalkboard alluding to paranoia for the benefit of the school board, the reprehensible behavior reengaging with a father after the conclusion of a conference, the paranoid distrust of a mother at the start of another conference, the classroom sign referring to a moratorium on sarcasm (at once displaying sophomoric behavior to the students and defiance to Dr. Goddard), and the already-cited comments to students in which Respondent left sarcasm behind for misanthropy and misogyny.

36. For these reasons, Petitioner has proved Respondent incompetent. Because the procedural safeguards are greater in the two-step process outlined in Section 231.36(3)(e), Respondent addressed the "just cause" issue in his brief, and the nature of the evidence, an alternative basis for termination exists in Section 231.36(1)(a).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract.

ENTERED on January 13, 1993, 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 January 13, 1993.

APPENDIX

Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance.

7-8: rejected as irrelevant.

9-18: adopted or adopted in substance. 19: rejected as irrelevant.

20-35: adopted or adopted in substance. 36: rejected as irrelevant.

37-39: adopted or adopted in substance.

40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited.

41: adopted or adopted in substance. 42: rejected as subordinate.

43-44: adopted or adopted in substance. 45: rejected as irrelevant.

46: adopted or adopted in substance.

47-48 (first three sentences): rejected as irrelevant.

48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant.

57-59: adopted or adopted in substance. 60-61: rejected as irrelevant.

62: adopted or adopted in substance. 63: rejected as irrelevant.

64-65: adopted or adopted in substance. 66: rejected as subordinate.

67-69: adopted or adopted in substance. 70: rejected as subordinate.

71-74: adopted or adopted in substance. 75-76: rejected as subordinate.

77-78: adopted or adopted in substance. 79: rejected as hearsay.

80-85: adopted or adopted in substance. 86: rejected as irrelevant.

87-92: adopted or adopted in substance. 93: rejected as subordinate.

94: rejected as irrelevant.

95-100: adopted or adopted in substance.

101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook.

102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing.

103-04: rejected as irrelevant. 105: rejected as subordinate.

106-17 (first sentence): adopted or adopted in substance.

117 (second sentence): rejected as unsupported by the appropriate weight of the evidence.

118: rejected as irrelevant and subordinate. 119: rejected as hearsay.

120-34: adopted or adopted in substance. 135-37: rejected as irrelevant.

138: adopted or adopted in substance. 139: rejected as irrelevant.

140: adopted or adopted in substance. 141: rejected as irrelevant.

142-43: adopted or adopted in substance. 144: rejected as subordinate.

145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings

1-7: adopted or adopted in substance. 8-10: rejected as irrelevant.

11-14: adopted or adopted in substance.

15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence.

17 (second sentence): adopted or adopted in substance.

18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance.

21-22: rejected as subordinate.

23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate.

27-28 (first sentence): adopted or adopted in substance.

28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence.

30: adopted or adopted in substance.

31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate.

33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence.

This provision governs only when Petitioner must refer matters to the Department of Education.

35: rejected as subordinate.

36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up

conferences.

40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant.

COPIES FURNISHED:

Superintendent Richard Farmer Highlands County School District

426 School St. Sebring, FL 33870-4048

Commissioner Doug Jamerson Department of Education The Capitol

Tallahassee, FL 32399-0400

James F. McCollum

James F. McCollum, P.A.

129 S. Commerce Ave. Sebring, FL 33870-3698

Anthony D. Demma

Meyer and Brooks, P.A.

P.O. Box 1547 Tallahassee, FL 32302

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: 93-003447

Orders for Case No: 93-003447