FRANK T. BROGAN, as Commissioner ) of Education, )
vs. ) CASE NO. 94-2876
Respondent. )
Pursuant to notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 8-9, 1995, in Miami, Florida.
For Petitioner: Ronald G. Stowers, Esquire 1/ Department of Education
Craig R. Wilson, Esquire
1201 U.S. Highway 1, Suite 315 North Palm Beach, Florida 33408
J. David Holder, Esquire 1403 North Piedmont Way Tallahassee, Florida 32312
Du Fresne and Bradley, P.A.
The issue for determination at hearing is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
On March 9, 1994, the State of Florida, Commissioner of Education (Petitioner) 2/ issued a four-count administrative complaint against Wilma Nottage (Respondent) alleging that her performance as a classroom teacher with the Dade County School Board (School Board) during the 1991-92 school year and the 1992-93 school year was unacceptable. Petitioner charged Respondent with:
Count One -- violating Subsection 231.28(1)(b), Florida Statutes, by proving to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school; Count Two -- violating Subsection 231.28(1)(f), Florida Statutes, by, upon investigation, being found guilty of personal conduct which seriously reduces her effectiveness as an employee of the School Board; Count Three -- violating Subsection 231.28(1)(i), Florida Statutes, by otherwise violating the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate; and Count Four -- violating Rule 6B-1.006(3)(a), Florida Administrative Code, by failing to make a reasonable effort to protect students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety.
By an Election of Rights form dated May 10, 1994, Respondent disputed the allegations of fact and requested a formal hearing. On May 20, 1994, this matter was referred to the Division of Administrative Hearings.
49 exhibits into evidence. By agreement of the parties, the testimony of one of Petitioner's witnesses, Dr. Patrick Gray, was taken posthearing by deposition and submitted as a late filed exhibit. The deposition testimony was filed and received into evidence as Petitioner's exhibit #50. Respondent testified in her own behalf, presented the testimony of two witnesses and entered two exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing posthearing submissions was set for more than ten days following the filing of the hearing transcript or of the deposition testimony, whichever occurs last. The parties submitted proposed findings of fact which are addressed in the appendix to this recommended order.
At all times material hereto, Wilma Nottage (Respondent) held a teaching certificate issued by the State of Florida, Department of Education, having been issued educator's certificate #357933, in the areas of Early Childhood Education, Elementary Education, and English to Speakers of Other Languages. Her teaching certificate is valid through June 30, 1998.
Respondent graduated from Florida Atlantic University in 1974 with a degree in Elementary Education and immediately thereafter began employment as a classroom teacher with the Dade County School Board (School Board). At all times material hereto, Respondent was employed with the School Board as a classroom teacher.
For the 1989-90 school year, Respondent was hired by the Principal of Norwood Elementary School (Norwood) to teach fifth grade. The Principal interviewed Respondent and was very impressed with her professionalism and appearance.
During Respondent's first year at Norwood, the Principal found Respondent's teaching ability to be acceptable and Respondent's behavior and appearance to be professional. Respondent received an acceptable annual performance evaluation for the 1989-90 school year.
However, during the 1991-92 school year, the Principal observed that Respondent's appearance, performance, and emotional stability deteriorated and
continued to deteriorate through the 1992-93 school year. At hearing, the Principal observed that the Respondent, who was present, was the Respondent that she saw, appearance wise, in the 1989-90 school year.
For the 1991-92 school year, at Respondent's request, she was assigned to teach kindergarten at Norwood. 3/ The teaching concept was different for kindergarten in that there was only one classroom and the students were taught in a team concept with three teachers, Respondent being one of the three teachers. The teachers would plan together, but the subjects being taught would be equally divided.
On or about October 30, 1991, the Assistant Principal of Norwood conducted an observation of Respondent's teaching performance after giving her proper notice. In an observation a teacher's classrooom performance is assessed as acceptable or unacceptable (deficient) in six areas: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. The Assistant Principal found Respondent's performance to be unacceptable in the area of classroom management.
After an observation is conducted, a post-observation is held between the observer and the teacher to discuss the observation. If there are any deficiencies found, a plan for performance improvement, also called a prescription, is issued to the teacher. The prescription contains activities (strategies) for remediating the deficiencies, a date certain (time line) for completion of the activities of the prescription, and a date for the next observation, if necessary.
On or about November 5, 1991, the Assistant Principal held a post- observation conference with Respondent to discuss his observation. A prescription was given to Respondent, with a completion date of November 25, 1991. Respondent failed to complete the activities of the prescription.
The team concept was not working for the kindergarten class. Respondent was infrequently completing her lesson plans, and the grades of the students for whom Respondent was responsible for assigning and recording were not properly recorded. Further, the students for whom Respondent was responsible consistently failed to complete the required areas of study, and Respondent frequently left her students unattended.
The Principal became concerned that a health problem was interfering with Respondent's performance in the classroom. The Principal did not question Respondent's ability to teach. On or about November 21, 1991, by memorandum to the Associate Superintendent for the Bureau of Professional Standards and Operation of the School Board, the Principal requested a medical fitness determination for Respondent, as a component of the employee assistance program. The Principal's request was based upon, among other things, Respondent's combative and emotional behavior, inefficient work performance (no grades in her grade book), and pattern of absences.
Respondent participated in the employee assistance program. However, her participation prematurely ended, lasting only approximately one (1) month. Respondent was not attending the scheduled conferences and ended her participation indicating that she was getting assistance on her own.
On December 16, 1991, a conference for the record was held with Respondent. During the conference, Respondent admitted that she had not
completed any of the requirements set forth in the prescription issued November 5, 1991. Even though Respondent's observation of October 30, 1991 was unacceptable and she had not remediated the deficiencies, the Principal was recommending Respondent's reappointment for one year. Also, Respondent was afforded additional time in which to complete the prescription and was to submit the appropriate paperwork for the prescription by January 7, 1992.
On January 22, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the area of classroom management.
Prior to the observation on January 22, 1992, the Principal terminated the kindergarten team because the team concept was not working. Even though Respondent's participation in the team was less than adequate, the other two kindergarten teachers contributed to the failure of the team concept by failing to provide Respondent a fair chance to join the team and teach in the kindergarten setting as established at Norwood. The other two kindergarten teachers did not properly assist or support Respondent or share needed materials.
On January 29, 1992, the Principal held a post-observation conference with Respondent regarding the observation on January 22, 1992. A prescription, consisting of two activities, was given to Respondent with time lines for completing the activities. Respondent was unable to complete one of the activities due to illness. Respondent failed to complete the second activity.
On February 27, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction.
The Principal found the observation of February 27, 1992, unusual in that areas in which Respondent was previously found to be acceptable were now found to be unacceptable. The Principal's position is that, if a teacher is capable of doing something one day, the teacher is capable of doing the same thing another day.
On March 5, 1992, a post-observation conference was conducted and a prescription was given to Respondent regarding the observation of February 27, 1992. The time line for completion of the activities of the prescription was March 27, 1992.
As of March 27, 1992, the Principal had not received the material from Respondent showing that the activities of the prescription were completed. The Principal extended Respondent's compliance date for the prescription to April 1, 1992. By memorandum dated March 31, 1992, the Principal informed Respondent that her failure to comply with the required prescription by April 1, 1992, would result in a violation of professional responsibility which is a category VII classroom assessment violation.
Not completing the activities of the prescription by April 1, 1992, Respondent requested an extension to April 13, 1992, which was granted by the Principal. However, on April 13, 1992, Respondent failed to complete the activities of the prescription. The Principal notified Respondent that her conduct of not completing the prescription constituted insubordination and could result in disciplinary action if it continued.
By another memorandum dated March 31, 1992, the Principal requested an external review (external observation) of Respondent's classroom performance. The external observation provides an independent observation of Respondent's classroom performance.
By memorandum dated April 1, 1992, the Principal notified Respondent that her unusually high number of absences since the beginning of the 1991-92 school year were adversely affecting the educational environment. The School Board allows 10 days for sick leave during a school year. The memorandum specified the dates of the absences, the category of the absences (whether personal or sick leave), and how the absences impacted the educational environment. Five of Respondent's absences were designated as sick leave. The Principal issued directives to Respondent as to how she should conduct herself in the future regarding absences and informed Respondent that her failure to comply with the directives would result in a review of her situation for disciplinary action.
On April 30, 1992, a conference for the record was held with Respondent. The purpose of the conference was to discuss Respondent's attendance, her noncompliance with the directives to complete the prescriptions of January 22, 1992, and March 27, 1992, and her future job status. As a result of the conference, among other things, it was agreed that Respondent would present the materials needed to comply with all the prescriptions to the Principal by May 8, 1992.
On May 13, 1992, the external observation which was requested by the Principal was conducted by the School Board's District Director of the Office of Instructional Leadership after giving proper notice. Simultaneously, in conjunction with the external observation, the Principal conducted an observation after giving proper notice. The District Director found Respondent's classroom performance unacceptable in the areas of knowledge of subject matter, classroom management, and techniques of instruction. The Principal found Respondent's classroom performance unacceptable in the areas of classroom management, and techniques of instruction. When the two observations were reviewed together, the area of knowledge of subject matter was determined to be acceptable.
On May 20, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent with time lines for completion of the activities of the prescription.
On May 29, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of classroom management, and techniques of instruction.
On June 8, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent with a June 18, 1992, completion date for the activities of the prescription.
Respondent's annual evaluation for the 1991-92 school year was conducted on June 17, 1992. Her overall performance was found unacceptable in two areas: classroom management and techniques of instruction. Respondent had failed to remediate these unacceptable areas.
Also, on June 17, 1992, a conference for the record was held with Respondent regarding her failure to complete the activities of the prescription
due April 27, 1992, the unacceptable observation of May 29, 1992, and her future job status. Respondent was informed, among other things, that the prescription deadline for the activities due June 18, 1992, was changed to June 19, 1992, that she continued to have an opportunity to complete outstanding prescriptions, that she was ending the year on prescription and that her end of year evaluation was rated unacceptable.
For the 1992-93 school year, Respondent was assigned to teach the fifth grade. Respondent did not receive this assignment until around the beginning of the school year. Expecting to teach kindergarten, Respondent had prepared for kindergarten; however, the enrollment for kindergarten declined and there was not a need for a third teacher in kindergarten.
The Assistant Principal requested Respondent's lesson plans for the first week of classes, but Respondent failed to make them available. Furthermore, in her lesson plans for the second week of classes, Respondent failed to include four objectives which are required to be included in lesson plans. By memorandum dated September 23, 1992, the Principal reminded Respondent of the requirement for lesson plans and the objectives which are required to be included in lesson plans.
On October 6, 1992, the Principal observed Respondent's classroom performance after giving proper notice. The Principal found Respondent unacceptable in the areas of classroom management, techniques of instruction, and assessment techniques.
On October 13, 1992, the Principal held a post-observation conference with Respondent. A prescription was given to Respondent. The activities of the prescription were to be completed by November 16, 1992, with one to be completed by October 23, 1992. Respondent failed to complete the prescription.
On November 17, 1992, the Assistant Principal observed Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques.
On November 23, 1992, the Assistant Principal held a post-observation conference with Respondent in which Respondent was given a prescription. The activities of the prescription were to be completed by December 4, 1992. Respondent failed to complete the prescription.
Subsequently, the teachers' union interceded and changes were made in the results of the observation of November 17, 1992. The areas of knowledge of subject matter and techniques of instruction were found to be acceptable; and, therefore, Respondent's classroom performance on November 17, 1992, was unacceptable in the areas of preparation and planning, classroom management, and assessment techniques.
On December 16, 1992, a conference for the record was held with Respondent to discuss, among other things, Respondent's performance assessments, her failure to provide required lesson plans and to complete required prescriptions, and her future employment. Respondent was informed, among other things, that her failure to comply with directives was insubordination and that, if she continued to have unacceptable performance ratings, her situation would be submitted to the Department of Education for review.
At the December 16, 1992 conference, Respondent's behavior was unusual, out of character. She was very loud instead of her usual quiet self.
On February 2, 1993, a conference for the record was held with Respondent. She was requested to provide the outstanding prescriptions.
Because Respondent had not completed all of the requested prescriptions, she was given twenty-four (24) hours to complete and provide the unfinished prescriptions. Respondent failed to complete the prescriptions within the 24- hour period.
On February 16, 1993, the Principal conducted an observation of Respondent's classroom performance after giving proper notice. The Principal found Respondent's performance unacceptable in the areas of preparation and planning, knowledge of subject matter, and techniques of instruction.
On February 24, 1993, a post-observation conference was held and a prescription was given to Respondent. Included in the prescription was an unacceptable performance in the area of professional responsibility (category VII violation) regarding Respondent's failure to comply with prescription deadlines. The activities of the prescription were to completed by March 10, 1993. Respondent failed to complete the prescription.
On March 17, 1993, the Assistant Principal observed Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, classroom management, and assessment techniques. The post-observation conference in which a prescription was issued was held on March 24, 1993. 4/ However, because the conference was not timely held, the observation was used only for assistance purposes.
By memorandum dated March 24, 1993, the School Board's Associate Superintendent of the Bureau of Instructional Support requested an external observation of Respondent's classroom performance.
On April 21, 1993, an external observation of Respondent's classroom performance was conducted by the School Board's Executive Director for Mathematics, Science and the Urban System Initiative after giving proper notice. Simultaneously, in conjunction with the external observation, the Principal conducted an observation of Respondent's classroom performance after giving proper notice. Both the Director and the Principal found Respondent's performance unacceptable in the areas of knowledge of subject matter, and techniques of instruction.
A post-observation conference was scheduled for April 28, 1993; however, Respondent was absent that day. The conference was held on April 30, 1993. Respondent was given a prescription, consisting of two activities, with the activities of the prescription to be completed by May 10, 1993. Respondent failed to complete one of the activities by the due date.
On April 14, 1993, a conference was held with Respondent and a prescription was given to her regarding her unacceptable performance in the area of professional responsibility (category VII). The prescription addressed Respondent's failure to provide upon request and to maintain lesson plans, grade books and graded material and her failure to comply with prescription deadlines.
By memorandum dated May 14, 1993, and received by Respondent on June 3, 1993, the Principal advised Respondent of her excessive absences for the
1992-93 school year to date. Twenty-six of Respondent's absences were designated as sick leave. Moreover, the Principal advised Respondent that the absences adversely impacted the support services to students, the academic progress of the students, the continuity of instruction, and the effective operation of the school. The Principal issued directives to Respondent and advised Respondent that the failure to comply with the directives would result in review by the Office of Professional Standards and, possibly, in disciplinary action.
On May 20, 1993, the Assistant Principal conducted an observation of Respondent's classroom performance after giving proper notice. The Assistant Principal found Respondent's performance unacceptable in the areas of preparation and planning, classroom management, and assessment techniques.
On May 24, 1993, the Assistant Principal held a post-observation conference with Respondent. A prescription was given to Respondent. The activities of the prescription were to be completed by June 17, 1993. Respondent failed to complete the prescription.
On June 2, 1993, Respondent's annual evaluation was conducted. The Principal found Respondent's overall performance unacceptable in the areas of preparation and planning, classroom management, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable areas.
A conference for the record was held with Respondent on June 2, 1993, regarding her performance assessments and her continued employment with the School Board. Respondent was reminded and advised, among other things, that she had 31 absences for the school year, had not completed all prescriptions, and had two years of unacceptable evaluations, and that her performance would be recommended for review and termination procedures.
Prior to the 1991-92 and 1992-93 school years, Respondent had not received an unacceptable annual evaluation, having been in the classroom for almost 17 years.
Respondent experienced medical problems during the 1991-92 and 1992-93 school years. During the 1991-92 school year, Respondent's medical problems included high blood pressure, back pain, and a herniated disc. Also, Respondent received psychological treatment from a psychologist, which was independent of the employee assistance program. During the 1992-93 school, Respondent's medical problems included high blood pressure, pain and swelling in her legs and ankles, back problems, and fibroid tumors. These medical problems which were experienced by Respondent over the two school years caused her to be absent from school for many days. Obviously, the medical problems would have some affect on Respondent's teaching performance. However, there is no medical opinion, no objective evidence as to how and to what extent the medical problems affected or would affect Respondent's teaching performance. 5/
In June 1993, after almost 19 years as a teacher with the School Board, Respondent resigned from the School Board as a teacher.
At the time of the hearing, Respondent was no longer receiving treatment for her physical or mental well-being. However, there is no medical evidence indicating that Respondent no longer needs such medical treatment.
At no time during any of the post-observation conferences in which prescriptions were given did Respondent indicate that she was experiencing any medical problems whether they were physical or psychological.
Because of Respondent's conduct during the 1991-92 and the 1992-93 school years, her effectiveness as a teacher was seriously reduced, she failed to provide the children in her classes the minimal education experience required or reasonably expected, and she has demonstrated that she did not possess the competence to teach or perform the duties of a teacher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 231.28, Florida Statutes, provides in pertinent part:
The Education Practices Commission shall have authority to suspend the teaching certi- ficate . . . for a period of time not to exceed
3 years . . .; to revoke the teaching certificate
. . . for a period of time not to exceed 10 years
. . .; to revoke permanently the teaching certi- ficate . . .; or to impose any other penalty provided by law, provided it can be shown that such person:
* * *
(b) Has proved to be incompetent to teach or to perform duties as an employee of the public
school system or to teach in . . . a private school;
* * *
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;
* * *
(i) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.
Education Practices Commission Rule 6B-1.006, Florida Administrative Code, provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
Petitioner has demonstrated by clear and convincing evidence that Respondent has violated Subsection 231.28(1)(b), (f), and (i), Florida Statutes, and Rule 6B-1.006(3)(a), Florida Administrative Code. A violation of Rule 6B- 1.006(3)(a) is found only as to Respondent failing to make a reasonable effort to protect the student from conditions harmful to learning.
A point of concern is Respondent's present physical and mental well- being. No medical evidence was presented to support Respondent's contention that she is now capable and able both physically and mentally to teach students.
Subsection 231.262(6), Florida Statutes, provides in pertinent part that the Education Practices Commission panel may impose one or more of the following penalties: revocation or suspension, an administrative fine not to exceed $2,000 per count or offense, probation under such conditions as may be determined by the Commission, reprimand, and restriction of the scope of practice. Petitioner suggests the following penalty: (a) a 90-day suspension of Respondent's teaching certificate; (b) a required psychological evaluation, prior to reemployment, which must confirm that it is safe for the Respondent to be around students; (c) a three-year probation to begin upon reemployment, with the condition that, during the first year of probation, Respondent successfully complete two three-hour college courses or the equivalent in-service training courses in the areas of classroom management and elementary education; and (d) a reprimand.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: 1.Suspending Wilma Nottage's teaching certificate for 60 days;
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1995.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1995.
1/ Craig R. Wilson, Esquire represented Petitioner at the hearing because J. David Holder, the attorney of record had a conflict. Ronald G. Stowers, Esquire replaced Holder as attorney of record and prepared and submitted Petitioner's proposed recommended order.
2/ At the time the complaint was filed, the Commissioner of Education was Doug Jamerson and he was named as the Petitioner. Subsequent thereto, Frank T. Brogan became Commissioner. At hearing, Frank T. Brogan was substituted as the named Petitioner.
3/ When Respondent was first hired at Norwood, she had requested to teach kindergarten but there was no position available. The following school year a position became available and Respondent requested it.
4/ The prescription included an unacceptable performance in the area of professional responsibility regarding Respondent's failure to provide upon request her lesson plans and grade book and her failure to comply with a previous directive to timely dismiss her class in the future.
5/ Respondent presented no medical testimony regarding the medical records which were received into evidence.
The following rulings are made on the parties' proposed findings of fact: Petitioner
NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence, not supported by the more credible evidence, argument, or a conclusion of law.
Octavio J. Visiedo, Superintendent Dade County Schools
1450 N.E. Second Avenue #403
Frank T. Brogan Commissioner of Education The Capitol
Ronald G. Stowers, Esquire Suite 1701, The Capitol
Craig R. Wilson, Esquire
1201 U. S. Highway 1, Suite 315 North Palm Beach, Florida 33408
2929 S.W. 3rd Avenue Miami, Florida 33129
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.
