m

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWANNEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2988

)

LALLAH P. SINGH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on September 14 and 15 and October 6, 1995, in Live Oak, Florida.

APPEARANCES

For Petitioner: J. Victor Africano, Esquire

Post Office Box 1450

Live Oak, Florida 32060-1450

For Respondent: Sally C. Gertz, Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

Whether respondent's teaching contract should be renewed for school year 1995-96.

PRELIMINARY STATEMENT

This matter began on May 15, 1995, when petitioner, Suwannee County School Board, through its superintendent, issued a letter to respondent, Lallah P. Singh, a classroom teacher, advising him that his contract would not be renewed for the 1995-96 school year due to an "unsuccessful evaluation and lack of improvement." Respondent then requested a formal hearing to contest the proposed action. The matter was referred by petitioner to the Division of Administrative Hearings on June 8, 1995, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By agreement of the parties, a final hearing was scheduled on August 24 and 25, 1995, in Live Oak, Florida. At petitioner's request, the matter was rescheduled to September 14 and 15, 1995, at the same location. A continued hearing was held on October 6, 1995.

By order dated August 21, 1995, the undersigned denied respondent's motion to dismiss the case on the ground that, during the termination process, petitioner failed to strictly follow all requirements in Section 231.36(3)(e),

Florida Statutes, the statute which governs this proceeding. That ruling is discussed further in the Conclusions of Law portion of this Recommended Order.

At final hearing, petitioner presented the testimony of Judy D. Sweat, its director of human resources; Melvin L. McMullen, principal of Branford Pre K-12 School; Charles F. Blaylock, Jr., superintendent of schools; Willie Veal, Jr., a science teacher at Branford Pre K-12 School and president of the Suwannee County teachers' union; Rhonda M. Lepper, director of instruction and personnel services with the Lafayette County School Board; Ronald L. Hobbs, assistant superintendent of the Hamilton County School District; and James Surrency, assistant superintendent for instructional services with the Gilchrist County School Board. Also, it offered petitioner's exhibits 1-20. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Amanda N. Vickers, a former student; Richard E. Layer, a retired Florida Education Association representative; George Bowen, a Florida Education Association field representative; and Dr. Linda Cronin-Jones, head of the Department of Instructional Curriculum at the University of Florida and accepted as an expert in teacher assessment and remediation. Also, he offered respondent's exhibits 1-3, 30, 35, 46, 55, 64, 65, 77, 79, 84, 85, 95, 96, 100,

and 101. All exhibits were received in evidence.

The transcript of hearing (four volumes) was filed on December 4, 1995.

Proposed findings of fact and conclusions of law were due on December 19, 1995, and the same were timely filed by respondent. None were filed by petitioner. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based on all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. In this proceeding, petitioner, Suwannee County School Board (Board), seeks to terminate respondent, Lallah P. Singh, a teacher, on the ground his classroom performance in school years 1993-94 and 1994-95 was unsatisfactory. In doing so, petitioner relies upon Section 231.36(3)(e), Florida Statutes, which authorizes a school board to terminate an employee with a professional services contract (PSC) when that employee has an unsatisfactory performance

      rating for two consecutive years. This proceeding represents the first occasion on which the Board has utilized the statute for a PSC teacher.

      
      

   2. Respondent, who has been employed in the Suwannee County school system since December 1977, is certified as a teacher in the areas of biology and mathematics for grades 6-12. A native of India, he holds the equivalent degree of a doctor in veterinary medicine from a university in that country. He has also obtained a master's degree in veterinary science in this country and is certified as an education specialist in mathematics. Until school year 1993-94, respondent was employed in a variety of positions, including a regular classroom teacher (1977-86), a home study teacher (1987-89), and an alternate education teacher (1990-92).

      
      

   3. During school year 1993-94, respondent was assigned to the Branford Pre K-12 School in Branford, Florida where he taught the in-school suspension (ISS) class. That class is made up of high school level students suspended from their regular classes for disciplinary reasons. The assignment required that

      respondent maintain discipline and assist students with work assigned by their regular teachers. Based on observations conducted by his principal during the school year, respondent received an unsatisfactory evaluation for his classroom performance. He was notified of these deficiencies in writing and was told that such deficiencies must be corrected by the end of the following school year, or else he would face possible non-renewal of his contract.

      
      

   4. For school year 1994-95, respondent was reassigned to an ISS classroom four periods per day but was also required to teach a general science class one period per day. During that year, respondent was observed by his principal in the general science class on four occasions to determine if the deficiencies noted in the prior year had been remediated. While most of the earlier deficiencies were eventually corrected, respondent was still unsatisfactory in one performance area noted in the prior year, as well as two other areas, and his performance was accordingly deemed to be unsatisfactory. On May 15, 1995, he was notified that his contract would not be renewed.

      
      

   5. By letter dated May 19, 1995, respondent requested a hearing to contest the Board's action. Although Section 231.36(3)(e)4.b., Florida Statutes, requires that the hearing be scheduled within 45 days of receipt of the written appeal, the parties have waived this requirement by requesting hearing dates beyond that timeframe. As clarified by his counsel, respondent generally contends the Board erred in the termination process by (a) providing him untimely and insufficient notice, (b) performing an inadequate evaluation, and

      (c) offering him inadequate assistance to correct his deficiencies. He asks for reinstatement of his professional services contract, as well as back pay.

      
      

2. Events Leading up to School Year 1993-94

   
   

   1. Around 1982, the legislature amended Section 231.36(3), Florida Statutes, to create a professional services contract under which teachers could be employed. Prior to that time, teachers not on annual contract status were employed under what was known as a continuing contract. Both a PSC and a continuing contract are considered a form of tenure for public school employees. After the new law became effective, teachers employed under a continuing contract were given the option to convert to a PSC. The advantage to a PSC is that if a teacher is cited for unsatisfactory performance in a given year, he or she has the following year in which to remediate those deficiencies. If the deficiencies are not remediated in the second year, a school board can change the teacher to annual contract status and decline to renew the teacher's contract. This procedure contrasts with the continuing contract process which, after an unsatisfactory rating is given but is not remediated by the teacher, allows a school board to change the teacher to annual contract status and not renew the contract at the end of any given year.

      
      

   2. In school year 1991-92, respondent was still employed under a continuing contract. When he received an unsatisfactory evaluation, and was threatened with the possibility of being changed to an annual contract and not renewed, he consulted with a teacher's union field representative, Richard E. Layer, on his procedural and substantive rights. During their discussions, the two talked about whether respondent should remain on a continuing contract or switch to a PSC. According to Layer, he explained to respondent "how the statute (governing a PSC) worked," advised him that a PSC offered more job security than a continuing contract, and recommended respondent switch to a PSC since this would give him two years in which to correct any deficiencies that might occur in the future. Layer added that after their conversation, respondent "knew exactly what the (PSC) provided."

   3. Based on Layer's advice, in April 1992 respondent requested that he be converted to a PSC. This was done for school year 1992-93, and he remained in that status until his contract was terminated in May 1995.

      
      

3. The Evaluation Process

   
   

   1. Generally

      
      

      1. When evaluating classroom performance in both school years 1993-94 and 1994-95, the Board used standard evaluation forms developed by representatives of the Board and teacher's union. The evaluation, which must be performed at least once a year for teachers having a PSC, is conducted by the teacher's immediate supervisor, who in this case was the school principal, Melvin McMullen. McMullen had assumed that position during the latter part of school year 1992-93, had received special training for conducting evaluations, and was required to perform evaluations for over fifty teachers in both school years 1993-94 and 1994-95.

         
         

      2. The evaluation process for a teacher on a PSC consists of at least one classroom evaluation during a given school year. The results of the first evaluation are recorded by the evaluator on an assessment form. Within five days after the observation, a principal-teacher conference must be held for the purpose of reviewing the outcome of the observation. At that meeting, the teacher must sign the form, which includes a written admonition that "(f)ailure to correct the area(s) marked unacceptable may lead to your dismissal or non- renewal." Subsequent evaluations during the year, if any, are also recorded by the evaluator on an assessment form. For all evaluations, the teacher is given an acceptable ("A") or unacceptable ("U") rating for each evaluated area.

         
         

      3. Although the assessment forms used herein changed in some minor respects from school year 1993-94 to school year 1994-95, their substance was essentially the same. Each assessment form for a classroom teacher contains six overall performance standards, including planning, teaching procedures, classroom managment, presentation and knowledge of subject matter, assessment techniques and personal characteristics and professional responsibilities.

         Under the performance standards are found a total of twelve "indicators." Finally, within the indicators are found a "checklist of observable teaching behaviors," consisting of twenty-seven behaviors, each requiring a rating of "U" or "A." If any teaching behavior is given a "U," the indicator likewise requires a rating of "U." If an indicator is marked "U," the performance standard is also scored unacceptable. A total score is then assigned to the teacher, with one point given for each indicator with an "A," and the highest score being twelve. Anything less than a twelve is considered unsatisfactory and, if not corrected, may result in the teacher's dismissal.

         
         

      4. If the first observation of a PSC teacher results in an unsuccessful rating in any area, a "level-one" assistance plan is instituted by the principal, which consists of a principal-teacher conference to discuss the deficient areas, suggestions on how to correct the deficiencies, and a timeframe to correct the substandard performance. If insufficient progress has been made by the end of the timeframe, at the option of the assessor, the level-one assistance process can be repeated or a "level-two" assistance plan can begin. The latter level of assistance generally mirrors the assistance given during level-one but the assessor must also notify the superintendent that level-two has been initiated. If the deficiencies are still not corrected by the end of the school year, the superintendent is notified, and the teacher is again placed

         on notice that he must correct those deficiencies during the following school year or suffer the risk of being reverted to an annual contract status and not being renewed. Finally, during the subsequent school year, the same observations are conducted, and level-one and two assistance plans are implemented if deficiencies are observed. If remediation does not occur by the end of the second school year, the superintendent has the authority to recommend that the school board decline to renew the teacher's contract.

         
         

   2. School year 1993-94

      
      

      1. Respondent was first evaluated by principal McMullen on February 23, 1994. He received a total credit of 10 out of 12 possible points. For the indicators "Recognizes and provides for individual differences" and "Demonstrates effective classroom facilitation and control," respondent received a "U." A conference was held by McMullen and respondent the same day, at which time respondent was given a form entitled "Related Work Performance Form (Appraisal III)." It contained not only an explanation of unacceptable areas and recommended procedure for correction, but also a notation that respondent had "2 weeks from today to demonstrate acceptable teacher corrective action."

         
         

      2. On March 14, 1994, respondent was again evaluated by principal McMullen. Although McMullen noted that "improvement" had occurred since the earlier evaluation, respondent received a credit of 11 out of 12 points. Indeed, he was still deficient in the area of "Demonstrates effective classroom facilitation and control." At a conference held the same day, respondent was given an explanation of his unacceptable area, a recommended procedure for correction, and the following timeframe for improvement: "2 weeks approximately from 3/14/94.".

         
         

      3. On March 15, 1994, respondent was given a lengthy list of resource materials available for use in correcting his deficiencies, including videos, journals and publications. In addition, he was given written instructions for use of the materials.

         
         

      4. Based on the unsatisfactory performance rating, principal McMullen sent the following letter to respondent on March 25, 1994:

         
         

         This letter is to notify you that you have demonstrated unsatisfactory performance on the Final Observation/Assessment Form (Appraisal I), with deficiencies noted in the folowing areas:

         
         

         1. Classroom Management

            Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum

            
            

            These deficiencies must be corrected by April 1, 1995. I am requesting that your employ-ment be continued an additional year in order to provide you assistance.

            
            

            If you wish to discuss this matter with me further, please schedule an appointment through Mrs. Cannon. I look forward in continuing to work with you on classroom management issues.

            Respondent acknowledged receiving a copy of the letter the same day.

            
            

      5. On March 31, 1994, principal McMullen wrote the following letter to superintendent Blaylock:

         
         

         Dr. Lallah Singh has been notified of unsatis- factory performance on the Final Assessment Form with deficiencies noted in the following areas:

         
         

         1. Classroom Management

            Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum

            
            

            I request that his employment be followed for an additional year to allow the opportunity to correct these deficiencies by April 1, 1995.

            
            

            Whether respondent received a copy of this letter is not of record.

            
            

      6. Although the March 14, 1994 evaluation was ostensibly used for personnel decisions that year, on May 6, 1994, a third formal assessment of respondent's classroom performance was conducted by principal McMullen. On that date, he received a credit of 11 out of 12 points. Even so, respondent was still deficient in "Classroom Management" and the related indicator based on unacceptable ratings given for the following observable teaching behaviors: "Maintains rules of conduct" and "Maintains instructional momentum." Thus, no matter whether the March or May evaluation was used, at the end of the first school year in question, respondent's only noted deficiency continued to be for classroom management and the related indicator, "Demonstrates effective classroom facilitation and control."

         
         

      7. On May 10, 1994, respondent and principal McMullen met to discuss respondent's latest assessment. Although McMullen noted that respondent had made "progress in meeting recommended procedures to help correct areas of concern," he noted that his level of improvement was "still not acceptable" and that respondent must continue the earlier suggestions for improving his performance. The two agreed to meet during the next school year's pre-planning period to discuss a plan of improvement for that year. This was embodied in a letter sent by McMullen to respondent on May 11, 1994. Sometime after receiving this notification, respondent contacted his local teacher's union representative, Willie Veal, Jr., for advice and assistance.

         
         

      8. On April 21, 1994, acting on the superintendent's recommendation, the Board reemployed respondent for the following year and placed him in a status known as "Professional Services Contract continuation (2nd year)," which is the Board's terminology for the "subsequent year" described in section 231.36(3)(e). Respondent did not receive a copy of this action. On June 7, 1994, however, respondent received a letter from the superintendent advising that the Board had approved him for a PSC for school year 1994-95.

         
         

         1. School year 1994-95

            
            

      9. On August 19, 1994, respondent, union representative Veal, and principal McMullen met to discuss respondent's teaching status for the 1994-95 school year. At that meeting, respondent learned he would be reassigned to ISS but would also be required to teach general science one period per day. Although respondent says general science was not his strongest suit, which was

         mathematics, it was a subject within his certified area of biology. He also understood that his contract was subject to being non-renewed if he did not correct his deficiencies during the school year. This was confirmed by witness Veal. The following letter was given to respondent on August 29, 1994, to memorialize the substance of the meeting:

         
         

         Thank you for meeting with me while Mr. Veal had a moment last Friday (August 19th., 1994)

         to generally discuss plans for teaching improvement for the 1994-95 school year. As we discussed,

         I believe the opportunity to teach a General Science class and Mr. Brown spending two periods a days (sic) with I.S.S. students (doing Drop-Out Prevention counseling) will be two positive techniques to aid improvement as noted on the Appraisal II Form from last year.

         
         

         You and I will meet again soon, to review matters particular to unacceptable areas noted on the May 6th., 1994 Observation/ Assessment. We will then outline other suggestions, techniques and/or personnel that might assist this teacher improve- ment process.

         
         

      10. On November 15, 1994, respondent was sent the following letter by principal McMullen:

          
          

          As we discussed at our 8/25/94 (sic) meeting, and briefly the other day, we need to meet this coming week to discuss items noted on the Appraisal II Form. We will review the items which were unacceptable on the 5/6/94 Observation/Assessment Form. Can a meeting

          between you and I be set up for Tuesday afternoon, about 2:30 in your room? Please let me know.

          
          

          Pursuant to this letter, a meeting was held on November 20, 1994. During the meeting, principal McMullen further discussed respondent's deficient areas in the prior year and suggested ways to improve them. He also recommended that informal observations be made in an effort to prepare respondent for his formal observations during the following months. While respondent contends this assistance was begun too late in the school year to be of any meaningful value, it was rendered more than four months before the final evaluation on March 29, 1995. Then, too, respondent's most persistent problem continued to be in the area of classroom management, for which assistance to remedy that problem had been offered throughout the previous year.

          
          

      11. On December 12, 1994, principal McMullen conducted the first of four observations of respondent's performance in his general science classroom. That classroom, rather than the ISS class, was chosen out of fairness to respondent in order to assess him in a controlled classroom environment. On that day, respondent received a score of 7 out of 12 possible points. More specifically, he received an unacceptable rating for the following indicators: "Uses instructional materials effectively," "Displays skills in making assignments," "Recognizes and provides for individual differences," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively."

      12. The following day, or December 13, 1994, petitioner was placed in the level-two assistance process. He was given a detailed explanation of unacceptable areas of performance observed at the December 12 evaluation and a lengthy list of suggestions on how to correct each of those deficiencies.

          
          

      13. Late on the morning of the same day, or December 13, 1994, principal McMullen walked by the building in which respondent taught and "noticed (him) sleeping at (his) desk" with his shoes off and leaning back in his chair. There were four students in his classroom at the time. Respondent was given a letter confirming this incident and told that if he had a medical reason which caused him to sleep to provide the principal with a doctor's note by December 16, 1994. Respondent provided a letter from his doctor the following day in which the physician listed four medications being taken by respondent, none of which would cause him to sleep. However, the physician noted that respondent "occasionally" took an over the counter cough syrup "that may cause drowsiness." Whether respondent was taking a cough syrup that day is not of record. This incident is relevant to the charge that respondent did not properly manage his classroom.

          
          

      14. On January 24, 1995, principal McMullen again performed an assessment of respondent's classroom performance. On this occasion, respondent received a score of 10 out of a possible 12 points. He received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively."

          
          

      15. On January 27, 1995, and pursuant to the level-two assistance program, respondent was again given a written, detailed explanation of his unacceptable areas and a list of recommended procedures for correction. He was told that he would be reevaluated on or about February 17, 1995. Finally, respondent was given the following written notice:

          
          

          Failure to satisfactorily correct all area(s) of unacceptable performance within the expected timeframe may result in returning the teacher holding a CC/PSC contract to annual contract

          status. If area(s) of unacc- eptable performance are not satisfactorily corrected during the second year, the teacher may be recommended for non-renewal.

          
          

      16. On February 21, 1995, another classroom observation was conducted by principal McMullen. That day, respondent received a score of 10 out of 12 possible points. Respondent again received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively."

          
          

      17. At a conference the same date, respondent was advised in writing that the following administrative assistance would be rendered: "Arrange conference time with fellow teachers/administrators, help secure resource materials and arrange for time to visit (illegible), etc." Respondent was also told that "(b)y April 5th (approximately six weeks), 1995 all observed/assessed areas should be scored acceptable." In addition, respondent was given a more detailed explanation of his unacceptable areas and recommended procedures for correction of those areas.

      18. On March 13, 1995, principal McMullen acknowledged receipt of certain corrective measures which respondent proposed to use at his next observation. These corrective measures were considered by principal McMullen at the next observation.

          
          

      19. A final observation of respondent occurred on March 29, 1995. Respondent received three unacceptable ratings which resulted in a score of 9 out of 12 points. On that occasion, he received unacceptable ratings for the following indicators: "Uses appropriate motivating techniques," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The second noted indicator, "Demonstrates effective classroom facilitiation and control," was the same indicator for which respondent had received an unacceptable rating the prior year.

          
          

      20. On March 30, 1995, principal McMullen sent the following letter to respondent:

          
          

          This letter refers to our meeting today on your 3/29/95 Observation/Evaluation. Having gone over that with you, I wanted to highlight the fact that you still have three areas deficient in evaluation of your classroom teaching. These areas are noted on your evaluation form.

          
          

          Instructional recommendations are due to the Superintendent April 1, 1995. Due to this being the second year in the process to correct noted deficiencies and those continue, I have no choice but to recommend non-renewal at that time.

          
          

          Respondent acknowledged receiving a copy of the letter the same date.

          
          

      21. On March 31, 1995, principal McMullen notified the superintendent by letter that he could not recommend respondent for the 1995-96 school year term given his failure to correct the deficiencies. The superintendent accordingly recommended to the school board on April 21, 1995, that respondent not be rehired for the following school year. The recommendation was accepted by the school board at its April 25, 1995 meeting.

          
          

      22. On May 15, 1995, the superintendent advised respondent by letter that his contract was not being renewed for the following school year. This notice prompted respondent to request a formal hearing to contest the school board's proposed action.

          
          

4. Was There Adequate Notice, Evaluation and Assistance?

   
   

   1. Notice

      
      

      1. Respondent contends that the school board erred by giving him inadequate and untimely notice of its actions. At the same time, respondent asserts that he was unaware of the consequences of the unsatisfactory performance ratings in school year 1993-94. He claims that, before the middle of school year 1994-95, no one ever specifically told him that his employment status was in jeopardy if his deficiences were not corrected by the following school year.

      2. Respondent's contention that he was unaware of the consequences of the 1993-94 unsatisfactory rating is not deemed to be credible. As early as 1992, respondent was given an explanation on how section 231.36(3)(e) "worked" by a field representative of the teacher's union, and according to the representative, "knew exactly what the law provided." Based on that advice, he switched from a continuing contract to a PSC since he had been told that this would give him two years to correct deficiencies before his employment could be terminated. Beginning in the summer of 1994, he was also represented by the president of the Suwannee County teacher's union, Willie Veal, Jr. At a meeting with Veal and principal McMullen in August 1994, respondent was told that he must correct his deficiencies before the end of the school year or face non- renewal.

         
         

      3. In addition, respondent had been through a similar evaluation process several years earlier. In 1992, he received an unsatisfactory performance rating and was told that unless the deficiencies were corrected, his contract might be terminated. In that case, however, the deficiencies were corrected, and he retained his tenure under a PSC. Finally, each of the many assessment forms that respondent signed during this process specifically noted that his "(f)ailure to correct the area(s) marked unacceptable may lead to (his) dismissal or non-renewal." Therefore, the totality of the evidence belies respondent's contention that he did not understand that this could happen.

         
         

   2. Statutory requirements

      
      

      1. The school board did not strictly follow all requirements of the law in terminating respondent. For example, the law requires that the superintendent provide the teacher in writing "no later than 6 weeks prior to the end of the postschool conference school period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment." In this case, respondent received this notice from his principal, rather than the superintendent. However, such notice was sufficient to inform respondent of the gravity of the situation. In the subsequent year, or school year 1994-95, the same notice must again be provided to the employee "no later than 6 weeks prior to the close of the postschool conference period." In this case, the notice was given by the superintendent, but this occurred less than "6 weeks prior to the postschool conference period."

         
         

      2. Although several errors in procedure occurred during the termination process, they were not so serious as to impair the fairness of this proceeding, or to cause prejudice to respondent in the defense of this case. Therefore, the errors in procedure are deemed to be harmless.

         
         

   3. Evaluation and Assistance

      
      

      1. The statute also calls for the employee to be "provided assistance and inservice training opportunities to help correct the noted performance deficiencies." However, the specific type of assistance and opportunties to be afforded a teacher is not statutorily defined. Respondent contends that such assistance and opportunities were never provided.

         
         

      2. Beginning with his first evaluation in February 1994, respondent was given assistance in the form of specific suggestions on how to correct the deficiencies. Also, numerous principal-teacher conferences were held to discuss the observation findings. After the March 14, 1994 evaluation, respondent was

         given a lengthy list of videos, journals and publications to use in an effort to correct his deficiencies. He was also given written instructions for the use of the materials.

         
         

      3. At the beginning of school year 1994-95, respondent had a pre-school meeting with both his principal and union representative concerning this matter. He also met with the principal on November 20, 1994, and the two discussed "other suggestions, techniques and/or personnel that might assist (his) teacher improvement process."

         
         

      4. Following an evaluation on December 12, 1994, respondent was given a detailed explanation of unacceptable areas of performance and a lengthy list of suggestions on how to correct those deficiencies. After another evaluation on February 21, 1995, respondent was again given advice on how to correct his deficiencies before the next evaluation. Although respondent says he took this advice to heart, and did all of the things suggested by his principal, he was still unable to obtain an acceptable rating. The Board, however, cannot be faulted for respondent's continued inability to correct the cited deficiencies.

         
         

      5. Through his expert, respondent contended that the evaluation and assistance process was not adequate. In reaching this conclusion, the expert relied upon her experience in the States of Georgia and Texas, as well as Dade and Seminole Counties, Florida. She did not, however, have any teacher remediation experience in small, rural counties such as Suwannee.

         
         

      6. The expert pointed out that a peer teacher did not assist the principal in performing the evaluations and making subsequent recommendations on how to correct the deficiencies. But there is no requirement that more than one person conduct the evaluation, and respondent (and his union representative) did not request that someone other than principal McMullen perform the observation.

         
         

      7. The expert further contended the Board should have assigned a peer teacher to assist respondent throughout this process. She also recommended that the Board send him to various seminars relating to his deficient areas. Again, however, there is no statutory requirement that a school board provide this type of assistance, especially when other forms of assistance and opportunities being given the teacher are adequate. Finally, the criticism that the Board did not adequately formalize its planned assistance measures into a written document is deemed to be unavailing.

         
         

      8. Because the assistance and opportunties provided respondent were adequate, the Board met its statutory obligation to provide "assistance and inservice training opportunities to help correct the noted performance deficiencies."

         
         

5. Summary

1. After being evaluated in a fair and impartial manner, and receiving timely and adequate notice of his deficiencies, as well as adequate assistance and opportunities to correct those flaws, respondent did not remediate a noted performance standard and related indicator during two consecutive school years. Therefore, the Board could properly change respondent's contract status from PSC to annual at the end of school year 1994-95 and decline to renew his contract.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

   
   

3. The statute which governs this proceeding is Section 231.36(3)(e), Florida Statutes. The rather lengthy procedures required by the statute are as follows:

(e) A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by

1. 231.29(4), charges the employee with unsatis- factory performance as determined under the provisions of s. 231.29 and notifies the employee in writing, no later than 6 weeks prior to the end of the postschool conference period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment (which shall be granted for an additional year in accordance with the provisions in subsection (1)). Except as otherwise herein- after 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 superintended 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 adminis- trator, 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 deficiences. 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; however, if the recommendation of the superintendent is

not issue a new professional service contract, and if the employee wishes to contest such recommendation, the employee will have 15 days from receipt of the superintendent's recommen- dation to demand, in writing, a hearing. In

such hearing, the employee may raise as an issue, among other things, the sufficiency of the superintendent's charges of unsatisfactory performance. Such hearing shall be conducted

at the employee's election in accordance with one of the following procedures:

* * *

b. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 45 days after receipt of the written appeal in accordance with chapter 120. The recommendation of the hearing officer shall be made to the school

board . . .

1. In proving "unsatisfactory performance," the Board need only do so by the preponderance of evidence. This is because respondent is at risk of losing his job, but not his professional license. See, e. g., Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990).

   
   

2. Respondent continues to assert, as he did in a motion to dismiss filed prior to hearing, that because the school board failed to strictly follow the timelines in the statute, and the principal, rather than the superintendent, gave written notice on one occasion, he is entitled to judgment in his favor. In resolving this contention, the undersigned notes that the Board did not conform its actions in all respects to the statute. It did, however, substantially comply with the law. In an earlier case, this same issue was litigated before an appellate court, and the court held that, in the absence of

   a showing of prejudice by the teacher, any failure by a school board to strictly conform with the requirements of the statute was harmless error. Krischer v.

   School Board of Dade County, 555 So.2d 436, 437 (Fla. 3d DCA 1990). See also Highlands County School Board v. Beard, DOAH Case No. 93-3447 (Final Order, February 10, 1994); School Board of Dade County v. Pollock, DOAH Case No. 92- 3477 (Final Order, March 24, 1993). In this case, petitioner's failure to strictly comply with the terms of the statute is also deemed to be harmless error.

   
   

3. In addition, there was no showing that these procedural errors prejudiced respondent in his defense of the charges. While respondent contended that, early on in the process, he would have taken different steps had he known he might be terminated, the established facts show that he clearly understood the consequences of having an unsatisfactory rating, and he had the benefit of advice from his union representative at the beginning of the second school year. Evidence proffered by respondent as to different courses of action that in hindsight he might have taken in this process has been rejected as being speculative and irrelevant.

   
   

4. Section 231.36(3)(e)2. requires that during the subsequent year, in this case school year 1994-95, the teacher be given "assistance and inservice training opportunties to help correct the noted performance deficiencies."

   Respondent argues that this requirement was not satisfied. Because the established facts show that respondent received adequate assistance and opportunities within the meaning of the law, the contention has been rejected.

   
   

5. By a preponderance of the evidence, petitioner has demonstrated that respondent's classroom performance in school years 1993-94 and 1994-95 was "unsatisfactory" within the meaning of the law. This being so, the Board had the statutory authority under section 231.36(3)(e) to decline to renew respondent's teaching contract for school year 1995-96.

   
   

6. In reaching the above conclusions, the undersigned has considered respondent's contention that the classroom management deficiency in the final school year 1993-94 evaluation (May 6, 1994) was based on a different teaching behavior than the underlying teaching behavior for the classroom management deficiency cited at the end of school year 1994-95. Thus, he reasons that the Board must give him another year in which to correct the new deficiency. But no matter whether the March or May 1994 observation was used as the 1994 benchmark, respondent was still found to be deficient for the same performance standard and indicator for two consecutive years. The fact that a different underlying teaching behavior may have been responsible for that deficiency does not alter this conclusion. To rule otherwise would mean that a teacher could receive unlimited unacceptable ratings for the same performance standard and indicator yet never be terminated so long as the unacceptable teaching behaviors varied from year to year. Therefore, the argument has been rejected. All other contentions not specifically discussed herein have likewise been considered and rejected.

   
   

7. Finally, on January 2, 1996, petitioner filed a motion for extension of time in which to file a proposed order. The motion is hereby denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order terminating respondent from

employment by not renewing his 1995-96 contract.

DONE AND ENTERED this 4th day of January, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2988

Respondent:

1-3. Partially accepted in finding of fact 2.

1. Partially accepted in findings of fact 2 and 3.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 2.

4. Partially accepted in finding of fact 1.

5. Partially accepted in finding of fact 10. 9-12. Partially accepted in finding of fact 11.

1. Partially accepted in finding of fact 10.

2. Rejected as being unnecessary.

15-17. Partially accepted in finding of fact 12. 18-19. Rejected as being unnecessary.

20-21. Partially accepted in finding of fact 44.

22-35. Partially accepted in findings of fact 13-20. 36-56. Partially accepted in findings of fact 21-34. 57-67. Partially accepted in findings of fact 40-46. 68-71. Partially accepted in findings of fact 35-37. 72-73. Partially accepted in finding of fact 39.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law.

COPIES FURNISHED:

J. Victor Africano, Esquire

P. O. Box 1450

Live Oak, Florida 32060-1450

Sally C. Gertz, Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

Charles F. Blaylock, Jr. Superintendent

Suwannee County School Board

224 West Parshley Street

Live Oak, Florida 32060-2396

Honorable Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 95-002988

Orders for Case No: 95-002988