STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-2690

)

ANNA MANN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 4 and 5, 1998, with the parties appearing at West Palm Beach, Florida, by video teleconference before J. D. Parrish, 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 Beach, Florida 33141

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.

PRELIMINARY STATEMENT

This case began on April 1, 1998, when the Superintendent of

Schools for the Petitioner, Palm Beach County School Board, notified Respondent that she would not be re-appointed for the 1998-99 school year and that her employment with the Petitioner would end on June 11, 1998. The notice alleged that Respondent had been placed on an assistance plan for improvement during the 1996-97 school year and that she had failed during the 1997-98 school year to correct the alleged deficiencies in performance. Such continuing deficiencies were cited as the basis for the decision not to reappoint Respondent.

The notice further advised Respondent she was entitled to request an administrative hearing pursuant to Section 231.36(3), Florida Statutes. Thereafter, the Respondent timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for formal proceedings.

On October 27, 1998, the Respondent filed a Motion to Dismiss for Lack of Jurisdiction, or alternatively, for Summary Final Order. Respondent argued that she had not been afforded the statutory protections for terminating her employment as a continuing contract teacher. Respondent maintained that her employment status and continued employment rights were determined based upon Professional Services Contract provisions which do not apply. Ruling on this motion was reserved as there were numerous factual matters in conflict. These procedural issues are more fully addressed in the Conclusions of Law that follow.

At the hearing, Petitioner presented testimony from

Dr. Effie Grear, the principal at Glades Central Community High School; Carolyn Owsley, a district resource teacher for Family and Consumer Sciences employed by the Palm Beach County School District (District); Dr. Mary Burns-Gray, a professor at Florida Atlantic University; Joe Kemp, a district vocational liaison specialist employed by the District; Judith Kurzawski, principal on assignment for the District's administrative team, Area Four; Dr. Clarence Fuller, Jr., an assistant principal at Glades Central Community High School; and Dr. Barbara Jean Burdsall, manager of professional standards for the District. Petitioner's Exhibits numbered 1 through 12, 15, 16, 19 through 23, 25 through

28, 32 through 44, 46, 47, 50, 54, 55, and 57 through 79 have been admitted into evidence.

Respondent testified in her own behalf and offered testimony from Mary Willingham, a student at Glades Central Community High School; Joyce Rasmussen, a teen intervention specialist employed by Aid to Victims of Domestic Abuse (AVDA); Clarence Gunn, the associate executive director for the Palm Beach County Classroom Teachers' Association; and Glenn Hoard, a teacher at Glades Central Community High School. Respondent's Exhibits numbered 1, 2, 3, 4, 6, 8, 9, 18, 25, and 29 have also been received into evidence.

Subsequent to the hearing, Petitioner filed a Notice of Filing which included a School Board agenda for its November 18, 1998, meeting to which Petitioner filed a Motion to Strike. That

motion is hereby denied. As stated previously, the issue of Respondent's termination in the procedural context is more fully addressed in the Conclusions of Law that follow.

Additionally, Respondent filed a Notice of Supplemental Authority on February 5, 1999. Petitioner filed a Response in Opposition to Respondent's Notice of Supplemental Authority on February 22, 1999. The supplemental authority and Petitioner's response thereto have been fully considered in the preparation of this order.

The last volumes of the transcript of the proceeding were filed on January 11, 1999. On January 12, 1999, Petitioner filed an Unopposed Motion for Extension of Time to File Proposed Findings of Fact and Recommended Conclusions of Law that was granted. The parties were afforded leave until 5:00 p.m., January 26, 1999, to file their proposed recommended orders.

Such proposals have been considered in the preparation of this order.

FINDINGS OF FACT

1. Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools.

2. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher

   teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS).

3. Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year.

4. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998.

5. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

6. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year.

7. The District utilizes an evaluation instrument known as

   the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment.

8. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel.

9. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor.

10. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies.

11. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate.

12. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996.

13. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized

    on a Florida Performance Measurement System Screening/Summative

    Observation Instrument (FPMS) form as well as in anecdotal notes of the review.

14. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention.

15. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills.

16. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996.

17. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates

    indicated in the plan.

18. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected.

19. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies.

20. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies).

21. Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs.

22. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses.

23. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the

    correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks.

24. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented.

25. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars.

26. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to

    students that the school administration was out to get her job.

    
    

27. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the

    remedies necessary to correct them registered with Respondent until the time of hearing.

28. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom.

29. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies.

30. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies.

31. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year.

32. Perhaps most telling of Respondent's failure to

    maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of

    Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked:

    Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in

    Mrs. Mann's class?

    
    

    Answer: No, nothing like it was in her class.

    
    

33. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom.

34. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides:

    3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file.

    1. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and

       specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve.

    2. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31.

    
    

35. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3.

36. Article II, Section M, of the contract provides, in pertinent part:

    1. With the consent of the employee and the Association, 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.

    2. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action.

       
       

       * * *

       
       

       1. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties.

       2. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:

          * * *

          (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.

       3. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO.

37. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies.

38. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations.

39. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and

    its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

41. Section 231.36, Florida Statutes, provides, in pertinent part:

    231.36 Contracts with instructional staff, supervisors, and principals.–

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to s. 231.17 or employed pursuant to

    s. 231.1725 and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    
    

    (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.

    4. For any person newly employed as a member of the instructional staff after June 30, 1997, the initial annual contract shall include a 97-day probationary period during which time the employee's contract may be terminated without cause or the employee may resign without breach of contract.

    1. The professional service contract shall be effective at the beginning of the school fiscal year following the completion of all requirements therefor.

    2. 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.

    3. A school board may issue a continuing contract prior to July 1, 1984, and may issue a professional service contract subsequent to July 1, 1984, to any employee who has previously held a professional service contract or continuing contract in the same or another district within this state. Any employee who holds a continuing contract may, but is not required to, exchange such continuing contract for a professional service contract in the same district.

    4. 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 (f) have been exhausted and the professional service contract is subsequently renewed.

    5. 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; however, if the recommendation of the superintendent is not to 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 recommendation 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 school board's election in accordance with one of the following procedures:

    1. A direct hearing conducted by the school

       board within 60 days of receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the school board shall be required to sustain the superintendent's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or

    2. A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days of receipt of the written appeal in accordance with chapter

    120. The recommendation of the administrative law judge shall be made to the school board. A majority vote of the membership of the school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.

    (4)(a) An employee who has continuing contract status prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom in accordance with existing laws, rules of the State Board of Education, or any laws repealed by this act, unless the employee voluntarily relinquishes

    his or her continuing contract.

    1. Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be dismissed or may be returned to annual contract status for another 3 years in the discretion of the school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the superintendent, by the principal if his or her contract is not under consideration, or by a majority of the school board. The employee whose contract is under consideration shall be duly notified in writing by the party or parties preferring the charges at least 5 days prior to the filing of the written recommendation with the school board, and such notice shall include a copy of the charges and the recommendation to the school board. The school board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by a majority vote of the full membership of the school board. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68.

    2. Any member of the district administrative

       or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have

       been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he or she may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his or her contract of employment shall be thereby canceled. Any such decision adverse to the employee may be appealed by the employee pursuant to s.

       120.68, provided such appeal is filed within

       30 days after the decision of the school board. (Emphasis Added.)

       
       

42. Petitioner bears the burden of proof in this cause to establish the allegations supporting its decision not to renew Respondent's CC for the 1998/1999 school year. Respondent argues that pursuant to the contract, such burden of proof must be to a standard of clear and convincing evidence to support such finding. Assuming, arguendo, Respondent is correct, it is concluded Petitioner has met that burden as to all aspects of this case.

43. Respondent also argues that the Petitioner cited and utilized an incorrect procedure for its determination not to renew Respondent's CC. While Petitioner did cite the incorrect statute (Section 231.36 (3) instead of subsection(4)), it is concluded that such error was harmless and did not violate Respondent's due process rights. Section 231.36(4)(b), Florida Statutes, provides that a CC teaching may be dismissed at the end of the school (as in this case) when a recommendation to that effect is submitted in writing on or before April 1 of any school year, giving good and sufficient reasons. That is precisely what

    occurred. After two years of Respondent's failure to correct the deficiencies noted in the evaluations, Respondent received a timely notice that she would not be renewed. Since she was not on the list of the persons to be renewed, Respondent's employment was effectively terminated by the inaction of the Petitioner on or about June 11, 1998. Respondent knew of the proposed non- renewal, disputed the basis for the proposed action, and timely challenged the results. Thereafter, the matter was timely forwarded to the Division of Administrative Hearings. Respondent was afforded all procedural rights to contest the non-renewal decision.

44. Respondent also argues that the Petitioner did not have just cause for the non-renewal of Respondent's CC. In this regard Respondent relies on Article II, Section M, paragraph 7

1. of the contract. Assuming, arguendo, such provision is applicable, it is concluded that Petitioner has established just cause for the non-renewal of Respondent's CC. In this case, the Respondent was afforded two school years to correct the deficiencies listed in her evaluations. Those deficiencies included poor management of student conduct, inadequate instructional organization and development, inadequate presentation of subject matter, failure to establish an appropriate classroom climate, and ineffective communication. Given that these deficiencies continued over a period of two years it is reasonable to conclude that Respondent failed to perform duties prescribed by law in that she failed to teach efficiently. Inefficiency in the repeated failure to perform duties prescribed by law and incapacity demonstrated by a lack of adequate command of her area of specialization constitute incompetency as those terms are used in the Florida Administrative Code. See Rule 4B-4.009, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew

Respondent's teaching contract for the 1998-99 school year.

DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 10th day of March, 1999.

COPIES FURNISHED:

M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive

Suite 9E

Miami Beach, Florida 33141

Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32301

Thomas E. Elfers, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Dr. Joan Kowel, Superintendent Palm Beach County School District

3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406

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: 98-002690

Orders for Case No: 98-002690