STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH ) COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 98-2600

)

BETTY WINDECKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 15-17, 1999, at West Palm Beach, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: M. Annette Himmelbaum, Esquire

6770 Indian Creek Drive, Suite 9E Miami, Florida 33141

For Respondent: Tracy L. Martinell, Esquire

Thomas L. Johnson, Esquire Chamblee & Johnson, P.A.

709 West Azeele Street Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the allegations set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

By letter dated March 10, 1998, the principal of Indian Pines Elementary School notified Betty Windecker (Respondent), among other things, that he was recommending that she not be re- appointed, as a teacher, for the 1999-2000 school year. By letter dated April 27, 1998, Respondent, through her counsel, timely requested a hearing. On June 5, 1998, the superintendent of the School Board of Palm Beach County (Petitioner) executed an Administrative Complaint alleging, among other things, that Respondent was on an annual contract and had agreed to a year of extended probationary service; and that Respondent's contract should be non-renewed because, during the period of extended probationary service, Respondent was given a mid-year evaluation, with six concerns being noted, and was also given a warning with respect to pushing students. On June 9, 1998, this matter was referred to the Division of Administrative Hearings.

The parties filed a joint pre-hearing stipulation on May 21, 1999. At hearing, Petitioner presented the testimony of eight witnesses and entered 30 exhibits (Petitioner's Exhibits numbered 1-9, 12, 13, 15, 17, 18, 24-27, and 29-40) into evidence. Respondent testified on her own behalf, presented the testimony of six witnesses at hearing, and entered 22 exhibits (Respondent's Exhibits numbered 1-8, 10, 12, 13, 27-30, 34-37, and 40-42) into evidence. One joint exhibit (Joint Exhibit

numbered 1) was entered into evidence. Official recognition was taken of Sections 231.29, 231.291, and 231.36, Florida Statutes (1997); Award of Arbitrator, In the Matter of the Arbitration between The Palm Beach County Classroom Teachers Association and The School Board of Palm Beach County, Grievant Betty Windecker, Case Number 32-390-00187-98 (April 7, 1999); and Opinion and Award, In the Matter of Arbitration between Palm Beach Classroom Teachers Association and The School Board of Palm Beach County, Grievant: Betty Windecker, AAA Case No. 32-390-00224-98 (August 17, 1999).

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The Transcript, consisting of five volumes, was filed on December 29, 1999. The parties were granted an extension of time to file their post-hearing submissions. The parties timely filed their post-hearing submissions: Petitioner filing on March 10, 2000, and Respondent on March 6, 2000. The parties' post- hearing submissions were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent began her teaching career as a substitute teacher in 1984 and has been an educator ever since. She holds

   a teaching certificate, issued by the State of Florida, Department of Education, and is certified to teach varying exceptionalities (VE), emotionally handicapped (EH), English speakers of other languages (ESOL), business, business education, mathematics, and middle school grades.

2. Respondent was employed with Petitioner as a classroom teacher since the 1993-94 school year. For the 1993-94 and 1994-95 school years, Respondent's annual evaluations were satisfactory, with no areas of concern being listed.

3. For the 1996-97 school year, Respondent's annual evaluation was satisfactory, with one area of concern being listed. The area of concern was "Adheres to and Enforces School Policies." Petitioner did not renew Respondent's contract at the end of the school year. Prior to the non-renewal of her contract at the end of the 1996-97 school year, no complaints were made and no issues were raised regarding Respondent's performance in the classroom.

4. After her contract was not renewed, Respondent was prepared to file an unfair labor practice charge against Petitioner. Among other things, Respondent considered herself to be entitled, as a matter of law, to a professional service contract, because she had been employed as an annual contract teacher for more than three years. However, in lieu of

   litigation, on October 10, 1997, Respondent and Petitioner

   entered into a Settlement Agreement, enabling her to return to work. The Settlement Agreement provided in pertinent part:

   1. Ms. Windecker [Respondent] will be placed on a fourth year of probationary service for FY98 and will be issued an annual contract in accordance with Fla. Stat. Section 231.36(3)(c).

      
      

   2. Ms. Windecker's reinstatement will be effective . . . upon her return to work on the first Monday following the execution of this agreement. . . .

* * *

1. In the event, Ms. Windecker's performance for the FY98 school year is satisfactory she will be recommended for a Professional Services Contract. Satisfactory performance will be determined in compliance with the standards set forth in Florida Statutes Section 231.29, the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers

   Association and the Palm Beach County School District, and the policies and directives of the Palm Beach County School Board.

   
   

2. Ms. Windecker understands that her acceptance of the annual contract in 1 above is not a guarantee of continued employment in her position with the School District beyond the FY98 school year. The District understands that Ms. Windecker's satisfactory performance during the 1997-98 school year will require that she be recommended for and granted a professional services contract.

   
   

3. In the event Ms. Windecker's performance for FY98 is determined by the District to be unsatisfactory, she will be entitled to a hearing pursuant to Fla. Stat. Section 231.36(6)(a) before the Division of Administrative Hearings.

1. As a result of the Settlement Agreement, Respondent returned to work. Petitioner administratively placed Respondent at Indian Pines Elementary School (Indian Pines), effective October 13, 1997. At time of her placement, Indian Pines had a vacancy in VE and EH. Petitioner assigned Respondent to the VE position.

2. Petitioner notified the principal of Indian Pines, Kenneth Meltzer, that Respondent was being placed at his school in the VE position. Principal Meltzer met Respondent for the first time on October 13, 1997. Principal Meltzer was not aware of the Settlement Agreement until approximately ten days after Respondent came to Indian Pines.

3. When Respondent reported to Indian Pines on October 13, 1997, Principal Meltzer met with her and discussed, among other things, the VE class situation and the two individuals to contact should she need anything. The two individuals were Elizabeth Cardozo, assistant principal, and Jay Riegelhaupt, exceptional student education (ESE) coordinator and speech language pathologist.

4. A pre-observation planning guide was usually provided to teachers at Indian Pines. Respondent did not receive a pre- observation planning guide. The evidence presented fails to show that the failure to receive the pre-observation planning guide was detrimental to Respondent.

5. Respondent was required to turn-in her plan book to the administration at Indian Pines. Her plan book was approved by the administration at Indian Pines.

6. Principal Meltzer performed a formal observation of Respondent on December 4, 1997. Prior to the observation, Principal Meltzer had received several complaints from the parents of students in Respondent's VE class regarding Respondent. When there are complaints from parents regarding a teacher, Principal Meltzer's usual procedure is to request the parents to place their complaints in writing and, after receiving the written complaints, to meet with the parents and the teacher to address the specific concerns. Principal Meltzer used this same procedure regarding the parents' complaints against Respondent.

7. Some of the parents' complaints were based upon an allegation of battery of students lodged against Respondent. Principal Meltzer did not provide Respondent with any specific document to assist her in dealing with parents' complaints which may arise. Respondent met with each of the parents and their problems or complaints were resolved.

8. During the investigation of the allegation of battery, Principal Meltzer met with Respondent and the parents of the alleged victim of the alleged battery. The meeting ended with the mother of the alleged victim apologizing to Respondent.

9. In addition, prior to the observation of December 4, 1997, members of the crisis response team (CRT) complained that Respondent was making frequent, inappropriate CRT calls. These complaints were brought to the attention of Principal Meltzer.

10. During the formal observation of Respondent on December 4, 1997, Principal Meltzer used the Florida Performance Measurement System (FPMS) Screening/Summative Observation Instrument. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Meltzer did not review the VE students' individual education plans (IEPs) prior to the observation. Principal Meltzer's observation of Respondent was that Respondent's teaching was unsatisfactory.

11. On December 8, 1997, Principal Meltzer performed a mid-year evaluation of Respondent. The assessment instrument used by Respondent to evaluate its teachers was the Classroom

    Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. Respondent was identified as an annual contract (AC) teacher on the CTAS.

12. On the mid-year evaluation, Respondent received a score of 20 and was rated unsatisfactory, with 12 areas of concern being listed. The areas of concern are also referred to as deficiencies. Principal Meltzer based the evaluation on the

    observation of December 4, 1997, and all occurrences from October 13, 1997. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; Demonstrates Knowledge of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; Demonstrates Self Control; Demonstrates Effective Working Relationship with Coworkers; Demonstrates Effective Working Relationship with Parents; and Adheres to and Enforces School Policies.

13. Respondent was provided a copy of the FPMS observation and the CTAS mid-year evaluation. The observation of December 4, 1997, contained what can be considered written feedback, but, as written, the feedback could have been better prepared. The mid-year evaluation of December 8, 1997, provided Respondent notice of the deficiencies.

14. At the request of Respondent's union representative, Principal Meltzer agreed to re-observe and re-evaluate Respondent. The union representative noted that it was humanly impossible to correct 12 deficiencies. Principal Meltzer agreed that the second observation and evaluation would replace the first observation and evaluation. Principal Meltzer had the discretion to grant the request and granted the request over the

    objection of Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards.

15. Principal Meltzer performed the agreed-upon formal observation on January 13, 1998. This observation was also not satisfactory.

16. Respondent received her agreed-upon second mid-year evaluation on January 16, 1998. She received a score of 27 and was rated unsatisfactory, with six areas of concern listed. The areas of concern were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. These six concerns were the most important concerns to Principal Meltzer.

17. Respondent was also placed on a School-Site Assistance Plan (School-Site Plan) on January 16, 1998. The School-Site Plan was developed to address Respondent's deficiencies, together with improvement strategies. No plan was developed for the concern of Demonstrates Effective Working Relationship with Parents because Principal Meltzer concluded that the parents' complaints had been effectively resolved through Respondent's meetings with the parents. Included in the School-Site Plan were agreed-upon dates for reviewing Respondent's progress. The

    School-Site Plan also provided, among other things, that observations would be conducted to determine whether the deficiencies were corrected.

18. Principal Meltzer reviewed the School-Site Plan with Respondent on January 22, 1998. A copy of the School-Site Plan was provided to Respondent on January 28, 1998.

19. The School-Site Plan was effective through March 10, 1998, which was the latest date that Principal Meltzer had to notify Respondent and Petitioner whether his intent was to recommend Respondent for reappointment.

20. The School-Site Plan was essentially divided into two parts, which were for Respondent to engage in self-study and for her to perform her normal teaching duties. The parties agree that Respondent completed the self-study part of the School-Site Plan.

21. Formal observations were conducted to determine whether Respondent performed her normal teaching duties.

22. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 10, 1998, Pamela Tepsic, Petitioner's Program Specialist, who is also a certified FPMS observer, conducted an observation of Respondent to assist Respondent in improving management of student conduct. Ms. Tepsic's observation was not to be used for evaluative purposes. Some of the matters observed were discussed with Respondent on

    the same day of the observation. A follow-up conference was scheduled with Respondent for February 19, 1998. Ms. Tepsic made ten written recommendations, which were provided to Respondent on February 20, 1998.

23. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 12, 1998, Linda Long, Petitioner's ESE Team Leader for Area 2, conducted an observation of Respondent for the purpose of assisting Respondent with grouping the IEPs of Respondent's students. Ms. Long wanted to observe Respondent's class before reviewing the students' IEPs. Ms. Long met with Respondent on February 26, 1998, to review the observation and the recommendations made. Ms. Long made four recommendations and provided Respondent with copies of strategies, which were from the State of Florida, Department of Education. During her meeting with Respondent, Ms. Long reviewed the students' IEPs and attempted to place them in groupings because it was difficult for Respondent to engage in direct teaching due to the many groups of children in Respondent's class. Ms. Long's observation was also not to be used for evaluative purposes.

24. On February 17, 1998, Assistant Principal Cardozo conducted a FPMS formative observation of Respondent, focusing on the domain of Instructional Organization and Development, but she did not review the IEP's of Respondent's students prior to

    the observation. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made specific recommendations, and on February 18, 1998, she met with Respondent and reviewed the observation and recommendations.

    Assistant Principal Cardozo's recommendations included behaviors to continue or maintain and behaviors to increase. Assistant Principal Cardozo's observation was to be used for evaluative purposes.

25. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 18, 1998, Hugh Brady, Petitioner's Instructional Support Team member of Area 2, conducted an observation of Respondent. He observed, among other things, that many of Respondent's comments to her class were not conducive to teaching VE students. Mr. Brady made several recommendations and conferenced with Respondent on February 25, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Mr. Brady's observation was not to be used for evaluative purposes.

26. On February 19, 1998, Assistant Principal Cardozo conducted a formal FPMS summative observation of Respondent.

    She observed that Respondent continued to engage in ineffective teaching, including not teaching concepts completely and failing

    to give definitions, attributes, examples, and nonexamples. Assistant Principal Cardozo made several recommendations and conferenced with Respondent on February 23, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations.

    Assistant Principal Cardozo's recommendations included behaviors for Respondent to continue or maintain; behaviors for Respondent to increase; and behaviors for Respondent to reduce or eliminate. Her observation of Respondent was to be used for evaluative purposes.

27. On February 26, 1998, Carol Parks was requested to serve as Respondent's peer teacher. On March 2, 1998, Ms. Parks met with Respondent and reviewed Respondent's lesson plans from which suggestions were made by Ms. Parks regarding planning and recording instructional objectives and improvement to Respondent's lesson plans.

28. On March 5, 1998, Assistant Principal Cardozo conducted a formal FPMS formative observation of Respondent, focusing on the domain of Presentation of Subject Matter. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made recommendations, and on March 10, 1998, she met with Respondent and reviewed the observation and recommendations.

29. Principal Meltzer failed to comply with the School- Site Plan as to having progress reviews on the specific dates which were set-aside. The dates scheduled for review of Respondent's progress were January 30, 1998, February 20, 1998, and March 6, 1998.

30. On March 10, 1998, the latest date for Principal Meltzer to recommend non-renewal of an employee, Principal Meltzer conducted a CTAS annual evaluation of Respondent, who was identified on the evaluation as an AC employee. The observations considered by Principal Meltzer were the observations conducted by himself on December 4, 1997, and January 13, 1998; and by Assistant Principal Cardozo on February 17, 1998,1 and February 19, 1998. On the annual evaluation, Respondent scored 26 and was rated unsatisfactory, with the same six areas of concern listed as on the mid-year evaluation of January 16, 1998. The six concerns were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. Principal Meltzer determined that Respondent had failed to correct the six deficiencies. However, as previously indicated, the concern of Demonstrates Effective Working

    Relationships with Parents was no longer considered a concern, and, therefore, Respondent failed to correct five deficiencies.

31. By letter dated March 10, 1998, Principal Meltzer notified Respondent that, in accordance with Section 231.36, Florida Statutes, and the Settlement Agreement, he was recommending that she not be reappointed for the 1999-2000 school year. In the letter, Principal Meltzer also encouraged Respondent to continue working to improve her performance and, if her performance significantly improved before the end of the 1998-99 school year, he may reconsider his decision. Respondent received this letter on the same date, May 10, 1998.

32. No assistance was provided to Respondent after March 6, 1998.

33. Even though Principal Meltzer had recommended non- reappointment for Respondent, he conducted an observation of Respondent on May 14, 1998. He observed that Respondent continued to need considerable improvement and made several recommendations for improvement.

34. Had Principal Meltzer determined, as a result of his observation of May 14, 1998, that Respondent had made significant improvement, he could have rescinded his recommendation of non-reappointment and recommended reappointment of Respondent.

35. By letter dated June 19, 1998, Petitioner notified Respondent that she was cleared of the allegation of battery of students made against her.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

37. Petitioner asserts that Respondent failed to correct her noted deficiencies after being provided an opportunity to correct the deficiencies, with assistance from Petitioner; that, because of Respondent's failure to correct the noted deficiencies, Respondent is incompetent, which constitutes just cause; and that, therefore, Respondent should be non- reappointed.

38. Respondent argues that Petitioner has the burden of establishing by clear and convincing evidence that Respondent failed to correct her deficiencies and that, therefore, she should not be reappointed. As her authority for this position, Respondent cites to Article II, Section M.1 of the Collective Bargaining Agreement between Petitioner and the Palm Beach County Classroom Teachers Association (CTA). The said Section of the Collective Bargaining Agreement is entitled "Discipline

of Employees (Progressive Discipline)" and provides in pertinent

part:

1. Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.

   
   

   The evidence presented fails to demonstrate that the case at hand is a progressive discipline case, and, therefore, clear and convincing evidence is not required for Petitioner to prove the allegations of the Administrative Complaint.

   1. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent failed to correct her deficiencies and that, therefore, she should not be reappointed. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

   2. Section 231.29, Florida Statutes (1997), effective July 1, 1997, provides in pertinent part:

      1. For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system.

      2. The following conditions must be considered in the design of the district's instructional personnel assessment system:

         1. The system must be designed to support district and school level improvement plans.

         2. The system must provide appropriate instruments, procedures, and criteria for continuous quality improvement of the professional skills of instructional personnel.

         3. The system must include a mechanism to give parents an opportunity to provide input into employee performance assessments when appropriate.

         4. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed.

         5. Each school board may establish a peer assistance process. The plan may provide a mechanism for assistance of persons who are placed on performance probation as well as offer assistance to other employees who request it.

         6. The school board shall provide training programs that are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures.

            
            

      3. The assessment procedure for instructional personnel shall comply with, but shall not be limited to, the following requirements:

         1. An assessment shall be conducted for each employee at least once a year. The assessment shall be based upon sound educational principles and contemporary research in effective educational practices. The assessment must use data and indicators of improvement in student performance and may consider results of peer reviews in evaluating the employee's performance. The assessment criteria must include, but are

            not limited to, indicators that relate to the following:

            1. Ability to maintain appropriate discipline.

            2. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.

            3. Ability to plan and deliver instruction.

            4. Ability to evaluate instructional needs.

            5. Ability to communicate with parents.

            6. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.

         2. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.

         3. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file.

         4. If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:

            1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and

               provide assistance in helping to correct deficiencies within a prescribed period of time.

            2. The employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days from the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies.

            3. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the superintendent. Within 14 days after receiving the evaluator's recommendation, the superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the superintendent will recommend that the school board continue or terminate his or her employment contract. . . .

            (Emphasis added).

            
            

   3. Section 231.36, Florida Statutes (1997), effective July 1, 1997, provides in pertinent part:

      (3)(a) The school board of each district shall provide a professional service contract as prescribed herein. Each member of the instructional staff who completes the following requirements prior to July 1,

      1984, shall be entitled to and shall be issued a continuing contract in the form prescribed by rules of the state board pursuant to s. 231.36, Florida Statutes 1981. Each member of the instructional staff who completes the following requirements on or after July 1, 1984, shall be entitled to and shall be issued a professional service contract in the form prescribed by rules of the state board as provided herein:

      1. The member must hold a professional certificate as prescribed by s. 231.17 and rules of the State Board of Education.

      2. The member must have completed 3 years of probationary service in the district during a period not in excess of 5 successive years, except for leave duly authorized and granted.

      3. The member must have been recommended by the superintendent for such contract and reappointed by the school board based on successful performance of duties and demonstration of professional competence.

      
      

      * * *

      
      

      (c) The period of service provided herein may be extended to 4 years when prescribed by the school board and agreed to in writing by the employee at the time of reappointment.

      (Emphasis added).

      
      

      * * *

      
      

      1. A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s. 231.29, charges the employee with unsatisfactory performance and notifies the employee of performance deficiencies as required by s.

         231.29. An employee who holds a professional service contract on July 1, 1997, is subject to the procedures set forth in paragraph (f) during the term of the

         existing professional service contract. The employee is subject to the procedures set forth in s. 231.29(3)(d) upon the next renewal of the professional service contract; however, if the employee is notified of performance deficiencies before the next contract renewal date, the procedures of s. 231.29(3)(d) do not apply until the procedures set forth in paragraph

      2. have been exhausted and the professional service contract is subsequently renewed.

      (f) The superintendent shall notify an employee who holds a professional service contract on July 1, 1997, 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 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 the superintendent's 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 or she 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, 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 . . . .

      
      

   4. The parties agreed in their Settlement Agreement that Respondent would be placed on a fourth-year probationary service for the school year 1997-98; that she would be issued an annual contract in accordance with Subsection 231.36(3)(c), Florida Statutes; and that her satisfactory performance would be determined by the standards in Section 231.29, Florida Statutes. Once Principal Meltzer determined that Respondent was not performing satisfactory and notified Respondent of his determination, Subsection 231.29(3)(d) required Principal Meltzer to provide Respondent with a 90-calendar-day period to correct the deficiencies of her unsatisfactory performance. Consequently, Respondent had a 90-calendar-day period to correct her deficiencies.

   5. The 90-day-calendar period began to run from the point of Respondent's receipt of the notification of her unsatisfactory performance. The 90-day-calendar period did not include school holidays and school vacation periods.

   6. On January 16, 1998, Respondent received her unsatisfactory mid-year evaluation and was placed on the School- Site Plan. On January 22, 1998, the School-Site Plan was reviewed with Respondent and she was provided a copy on January 28, 1998. Even though Respondent received notification of her unsatisfactory performance on January 16, 1998, she did not receive a copy of the School-Site Plan until January 28, 1998. It is reasonable to begin the running of the 90-calendar-day period from January 28, 1998.2

   7. Subsection 231.29(3)(d), Florida Statutes, also required Petitioner to evaluate Respondent periodically, to apprise her of progress achieved, and to provide Respondent with assistance and inservice training opportunities to help her correct the noted performance deficiencies. Principal Meltzer provided Respondent with inservice training opportunities, and Respondent was evaluated periodically. However, Principal Meltzer failed to periodically apprise Respondent of her progress even though specific dates were set-aside to do just that. Petitioner argues that the periodic observations apprised Respondent of her progress, but the undersigned is not persuaded. Petitioner's charge of assisting Respondent to correct her deficiencies requires more than just observations; it requires a process in which discussions are had with

      Respondent to inform Respondent of her weak and strong areas and to devise ways to address and correct the weak points.

   8. Moreover, the assistance provided by Petitioner to Respondent ceased on March 6, 1998. Even assuming the assistance went beyond March 6, 1998, the assistance certainly did not continue beyond March 10, 1998, which was the date of Respondent's annual evaluation.

   9. Petitioner failed to provide Respondent with the full 90-calendar-day period to correct her noted deficiencies. Petitioner denied Respondent her statutorily provided due process right to correct her noted deficiencies within a 90- calendar-day period. Consequently, Petitioner failed to demonstrate that Respondent failed to correct her noted deficiencies and that, therefore, Respondent is incompetent. Petitioner failed to demonstrate that Respondent should not be reappointed.

   10. Additionally, Respondent was exonerated of the allegation of battery on a student.

   11. Assuming that the standard of proof for Petitioner is clear and convincing, Petitioner still failed to demonstrate that Respondent failed to correct her noted deficiencies and that, therefore, Respondent is incompetent. Petitioner failed to demonstrate that Respondent should not be reappointed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Palm Beach County School Board enter a final order and therein:

1. Dismiss the Administrative Complaint filed against Betty Windecker.

2. Reinstate Betty Windecker with a professional service contract, full backpay, and lost benefits.

DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.

ENDNOTES

1/ The date listed on the CTAS annual evaluation is February 18, 1998. This date is incorrect but should be February 17, 1998.

2/ Even if the 90-day-calendar period began to run on the date that Respondent received her unsatisfactory mid-year evaluation, which was January 16, 1998, Petitioner still denied Respondent,

through no fault of her own, the statutorily provided due process right to correct her noted deficiencies within a 90-calendar-day period.

COPIES FURNISHED:

M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive, Suite 9E Miami, Florida 33141

Tracy L. Martinell, Esquire Thomas L. Johnson, Esquire Chamblee & Johnson, P.A.

709 West Azeele Street Tampa, Florida 33606

Dr. H. Benjamin Marlin, Superintendent Palm Beach County Schools

3340 Forest Hill Boulevard, Room C316 West Palm Beach, Florida 33406-5869

Honorable Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 98-002600

Orders for Case No: 98-002600