STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1708

)

JOHN KENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 23-27, 1999, at West Palm Beach, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, Esquire

School Board of Palm Beach County Office of General Counsel

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

For Respondent: Anthony D. Demma, Esquire

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

Tallahassee, Florida 32302

Lloyd J. Heilbrunn, Esquire Admiralty Towers

4400 PGA Boulevard, Suite 700

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should enter into a new professional service contract with Respondent and whether Respondent's employment with Petitioner should be terminated, due to Respondent's failure to correct his teaching

deficiencies.

PRELIMINARY STATEMENT

By letter dated March 23, 1999, the Superintendent of Schools for the Palm Beach County School Board (Petitioner) notified John Kent (Respondent) that, among other things, she was going to recommend to Petitioner the suspension and termination of Respondent from employment based upon his failure to correct his teaching deficiencies. By letter dated March 31, 1999, Respondent, through his counsel, timely requested a hearing. On April 13, 1999, an Administrative Complaint was executed by the Superintendent charging Respondent with failing to correct his teaching deficiencies, which was just cause for dismissal from employment, and seeking to dismiss him from employment, as an instructional employee, with Petitioner. On April 13, 1999, this matter was referred to the Division of Administrative Hearings.

The parties filed a joint pre-hearing stipulation on August 13, 1999. At hearing, Petitioner presented the testimony of 13 witnesses and entered 108 exhibits (Petitioner's Exhibits

numbered 2-7, 9-13, 14 (pages numbered 17.1 and 17.2), 16, 17,

20, 22, 23 (pages numbered 37.1 and 37.2), 24, 27, 29, 31, 33,

35-39, 41-45, 47-50, 52-58, 60-64, 68-70, 71 (pages numbered

130-136), 72-77, 83-90, 94, 95, 100-105, 108, 113-116, 118-120,

122, 123, 125, 127-129, 131, 133, 136, 138-140, 142, 143, 146,

147, 152, 157, 160-162, 163 (page numbered 509), 166, 169 (pages

1-4), and 170) into evidence. Petitioner's Exhibit numbered 171 was offered but not admitted into evidence. 1/ Respondent testified on his own behalf, presented the testimony of five witnesses at hearing, and entered nine exhibits (Respondent's Exhibits numbered 1, 2/ 2, 3, 8, 9, 10, 12, 18, and 19) into evidence. 3/ One joint exhibit (Joint Exhibit numbered 1) was entered into evidence. Judicial recognition was taken of Sections 231.29 and 231.36, Florida Statutes, (Petitioner's Exhibits numbered 154 and 155), and Chapter 6B-4.009 and 6B-5, Florida Administrative Code (Petitioner's Exhibit numbered 159).

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 10 volumes, was filed on December 6, 1999. Petitioner requested and was granted leave to exceed the 40-page limit. The parties timely filed their post- hearing submissions on January 20, 2000. The parties' post-

hearing submissions were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. John Kent (Respondent) was employed with the Palm Beach County School Board (Petitioner) as a social studies teacher since 1980 at Palm Beach Lakes High School (PBL High) and its predecessor school, Twin Lakes High School (TL High). During his employment with Petitioner, Respondent held a professional service contract.

2. Respondent has been a teacher for over 30 years, having taught in both the Illinois and Florida school systems.

3. In the latter part of 1996, concerns regarding Respondent's performance, as a teacher, were first raised in Petitioner's school system. Prior to that time, his teaching performance was evaluated as being satisfactory.

4. From 1992 to 1996, PBL High's principal, Nat Collins, evaluated Respondent's teaching performance as satisfactory, with no record of incidents. Principal Collins is a certified Florida Performance Measurement System (FPMS) observer. 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 Collins had specifically praised Respondent's planning abilities and lesson delivery skills in three evaluations. Principal Collins' last evaluation

   of Respondent was in May 1996, in which he specifically praised Respondent for Respondent's lesson delivery skills.

5. In August 1996, PBL High was assigned a new assistant principal, Thomas Carroll. Assistant Principal Carroll notified the teaching staff at PBL High in his first faculty meeting in August 1996 that he would be performing more critical observations of them. Assistant Principal Carroll is a certified FPMS observer. Principal Collins considered Assistant Principal Carroll's remark to be of poor judgment and chastised Assistant Principal Carroll for making such a comment.

6. For the 1996-97 and 1997-98 school years, the assessment instrument used by Petitioner 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. A satisfactory evaluation of a teacher was one in which the teacher received a rating of 28 or above, out of a maximum of 32, or of 5 concerns or less. School-site improvement efforts may accompany a rating in which one concern is noted.

7. During the 1996-97 and 1997-98 school years, the CTAS required a teacher at PBL High, whose performance was rated unsatisfactory at the end of the school year, to be placed in a District-Level Professional Development Plan (District-Level

   Plan) during the entire following year of improvement. If the teacher failed to sufficiently improve during the subsequent year, as determined by the principal, the teacher would be dismissed.

8. During the 1996-97 school year, Respondent received a CTAS mid-year evaluation dated December 9, 1996. He received a score of 27 and was rated as unsatisfactory, with five concerns, also referred to as deficiencies. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Demonstrates Ability to Plan Effectively; and Demonstrates Ability to Evaluate Instructional Needs.

9. Subsequently, during the same school year, on April 16, 1997, a CTAS annual evaluation of Respondent was conducted. Respondent received a score of 28 and was rated as satisfactory on the annual evaluation. Four areas of concern were listed: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively.

10. During the 1996-97 school year, Respondent was not pleased with Assistant Principal Carroll's assessment of his teaching performances as inadequate. Respondent expressed his displeasure to Principal Collins regarding Assistant Principal Carroll's assessments.

11. During the 1997-98 school year, on November 21, 1997, Assistant Principal Carroll observed Respondent. He determined that Respondent failed to teach any concepts during the class period.

12. Subsequently, Principal Collins conducted a CTAS mid- year evaluation of Respondent on December 4, 1997. Assistant Principal Carroll provided input to Principal Collins regarding Respondent's mid-year evaluation. Respondent received a score of 30 and was rated satisfactory, with two concerns being listed. The concerns were Instructional Organization and Development; and Presentation of Subject Matter.

13. Principal Collins was concerned that Respondent's last annual evaluation, which was performed on April 16, 1997, identified four concerns. As a result, on December 4, 1997, a School-Site Assistance Plan (School-Site Plan) was developed for Respondent. The School-Site Plan included professional standards seminars. Assistant Principal Carroll notified Respondent that the Peer Assistance and Review (PAR) Program was also available to provide assistance.

14. The PAR Program is a master teacher assistance program. Both the Palm Beach County Classroom Teachers Association (Union) and Petitioner developed the PAR Program to assist teachers with the correction of deficiencies.

15. As Respondent had raised concerns regarding Assistant Principal Carroll's observations of him, Principal Collins requested that an outside observer from Petitioner's district school staff observe Respondent. By memo dated February 27, 1998, Principal Collins noticed Respondent of the observation by the outside observer. The outside observation was to take place on March 10, 1998.

16. As a result of the satisfactory mid-year evaluation, Respondent could not understand why he was being observed again and, this time, by an outside observer. In March 1998, Respondent expressed his concern in a memo to Principal Collins regarding the observation by the outside observer.

17. Prior to the observation, Respondent's wife learned that Respondent was going to be evaluated by one of Petitioner's district staff persons. By letter dated March 4, 1998, to the General Counsel of the Florida Department of Education (DOE), Respondent's wife made allegations of ethical violations by Assistant Principal Carroll, regarding Respondent's observations, and requested an ethics inquiry by DOE. She copied the letter to Petitioner's chief personnel officer

    (Dr. Joanne Kaiser); Principal Collins; one of Petitioner's members; Petitioner's superintendent; and the Union's Executive Director.

18. On March 9, 1998, Principal Collins completed a CTAS annual evaluation of Respondent. Respondent received a score of

    29 and was rated satisfactory, with three concerns being noted.

    
    

    The concerns listed were Management of Student Conduct; Instructional Organization and Development; and Presentation of Subject Matter. Principal Collins did not recommend placement of Respondent in a District-Level Professional Development Plan.

19. On March 10, 1998, Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards, observed Respondent. She developed both the instructional and non-instructional evaluation and assistance plans. Dr. Burdsall's duties include monitoring the evaluation system. She is a certified FPMS observer. Dr. Burdsall had no knowledge of Respondent's prior evaluations. She noted six areas of deficiencies or concerns in Respondent's teaching and provided him with recommendations for improvement. The deficiencies were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Classroom Climate; and Planning. Dr. Burdsall determined that Respondent had conducted an ineffective lesson.

20. On April 21, 1998, Respondent experienced a classroom management problem. Unidentified students in Respondent's classroom had covered his clothing with ketchup.

21. Dr. Burdsall met with Respondent subsequent to the observation. She discussed the observation with Respondent and provided him with suggestions for improvement, employing a behavior management system and teaching a lesson. Dr. Burdsall urged Respondent to become involved in the PAR program.

22. The Union filed a grievance challenging Respondent's observation of March 10, 1998. The grievance was denied at Step II of the process and was not pursued any further.

23. Respondent was entitled to request a deficiency hearing and he did so. A deficiency hearing was held and Respondent's deficiencies were reviewed with him.

24. On May 18, 1998, Patricia Kaupe, Petitioner's Instructional Support Team Member, Area 3 Administration, observed Respondent. Her duties include observing and assisting teachers with teaching performance deficiencies. Ms. Kaupe is a certified FPMS observer. She determined that Respondent had an ineffective lesson. Ms. Kaupe met with Respondent subsequent to the observation and provided him with feedback regarding more effective teaching practices. She concluded that Respondent was an incompetent teacher.

25. At his discretion, on May 29, 1998, Principal Collins completed a second CTAS annual evaluation of Respondent. Assistant Principal Carroll provided input and expressed his concern that classroom management remained a concern and that

    Respondent continued to need improvement in that area. Principal Collins considered input by Assistant Principal Carroll, prior observations, including the observations of Dr. Burdsall, and the ketchup incident in April 1998. Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies were Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively.

    Principal Collins had further concerns regarding the safety of students and of Respondent and regarding the instruction level being provided by Respondent. This second CTAS annual evaluation, which rated Respondent unsatisfactory, was less than "6 weeks prior to the end of the postschool conference period." 4/

26. Respondent had requested a transfer and on July 17, 1998, he met with Petitioner's chief personnel officer,

    Dr. Joanne Kaiser. Those in attendance included Principal Collins, Assistant Principal Carroll, and Respondent's union representative. Respondent's request for transfer was denied in that Dr. Kaiser determined that Respondent's main concern was Assistant Principal Carroll, which concern was resolved; that Respondent's needs could be met at PBL High; and that Respondent was not on a District Plan as statutorily required. The

    granting or denial of the transfer was within the complete discretion of Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion in denying the transfer.

27. In addition to Respondent's transfer request, the discussion at the meeting on July 17, 1998, included Respondent's concern regarding Assistant Principal Carroll's being on Respondent's review team. Principal Collins recommended and it was agreed that Assistant Principal Marjorie Lesser would replace Assistant Principal Carroll. It was further agreed that Respondent would be placed on a 30-day School-Site Plan at the upcoming Fall term of school.

28. Assistant Principal Lesser developed a 30-day School- Site Assistance Plan for Respondent. She met with Respondent on August 31, 1998, and reviewed the plan with him. Respondent's union representative did not attend the meeting and his presence was not a requirement. The focus of the School-Site Plan was to address Respondent's six teaching deficiencies listed on Respondent's CTAS annual evaluation of May 29, 1998, and to structure activities to assist him, which included reading materials; viewing professional development video tapes, regarding the deficient teaching domains; observing other teachers; being assisted by peer teachers; having other professionals observe his teaching; and meeting with Respondent and providing feedback on his teaching behaviors. Additionally,

    Assistant Principal Lesser arranged several seminars and workshops for Respondent.

29. Respondent was also recommended for the PAR Program but he declined.

30. On September 1, 1998, Assistant Principal Lesser observed Respondent. She is a certified FPMS observer. During the observation, Assistant Principal Lesser observed Respondent's efforts in complying with her suggestions; however, he was not successful. Assistant Principal Lesser determined that Respondent's teaching was ineffective and six deficiencies or concerns were identified. The deficiencies were as follows: Domain 3--inadequate directions provided to the students; Domain 3--too many students off-task; Domains 3 and 5--students sent mixed communication message; Domain 5--used a monotone voice; and Domain 2--a lack of consistency in management of student conduct.

31. Periodically, during the implementation of the School- Site Plan, Assistant Principal Lesser met with Respondent, his union representative, and Principal Collins to review Respondent's progress and to discuss continuing concerns and the direction needed to be taken between meetings. The contents of each meeting were recorded and signed off by everyone. At no time did Respondent or his union representative raise a concern as to the timing or the appropriateness of the School-Site Plan.

32. On September 16, 1998, Ms. Kaupe observed Respondent again. She determined that Respondent had failed to teach any concepts and concluded that his lesson was ineffective.

    Ms. Kaupe offered Respondent suggested strategies for improvement.

33. On October 12, 1998, Assistant Principal Lesser again observed Respondent. She determined that Respondent's teaching was ineffective and that the same six deficiencies remained. Assistant Principal Lesser provided recommendations for improvement to Respondent.

34. Safety concerns arose regarding Respondent's management of student conduct in his classroom because problems erupted into incidents involving students. To ensure safety in Respondent's classroom, Principal Collins implemented a physical change in Respondent's classroom. Principal Collins directed the removal of the light switch in Respondent's classroom, so that it could not be manually turned on and off, and the placement of a device which required a key to turn the light on and off.

35. To further ensure safety in Respondent's classroom, not for behavior management or teaching, Principal Collins placed a teacher's aide in Respondent's classroom at the recommendation of Dr. Kaiser. In October 1998, Principal Collins' concern for safety heightened after a student was

    injured in Respondent's classroom. After the incident, Dr. Kaiser met with Principal Collins and others, regarding the student injury, and recommended the placement of a teacher's aide in Respondent's classroom for safety reasons, not for behavior management of the students, which was Respondent's responsibility, or for teaching of the students.

36. On November 3, 1998, which was near the end of the 30- day School-Site Plan, Principal Collins observed Respondent. Principal Collins determined that a sufficient number of deficiencies were not corrected but remained. The deficiencies were as follows: Domain 1--Planning; Domain 2--off-track behavior; Domain 3--instructional organization; and Domain 5-- communication verbal and nonverbal. Principal Collins provided recommendations for improvement to Respondent.

37. Respondent agreed, after encouragement, to participate in the PAR Program and to have a PAR teacher. Principal Collins referred Respondent to the PAR Program.

38. At the end of the 30-day School-Site Plan, Respondent was given a CTAS mid-year evaluation by Principal Collins on November 10, 1998. Principal Collins considered the observation that he conducted on November 3, 1998, and Respondent's past observations on September 1, 1998, September 16, 1998, and October 12, 1998. 5/ Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies

    were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively.

    Principal Collins recommended the placement of Respondent on a 90-day District Level Professional Development Plan (District Plan). The purpose of the 90-day District Plan was to assist in the remediation of the deficiencies.

39. On November 16, 1988, Dr. Jeanne Burdsall met with Respondent and his union representative to review the 90-day District Plan. The meeting was also attended by Principal Collins and Assistant Principal Lesser. Neither Respondent nor his union representative raised an objection to the applicability of the 90-day District Plan to Respondent. At that meeting, among other things, Respondent's union representative requested a transfer of Respondent and a deficiency hearing.

40. Petitioner's Superintendent noticed Respondent that he was being placed on a 90-day District Plan.

41. Respondent's 90-day District Plan was the first teacher assistance District Plan implemented by Petitioner under the change in Florida Law which Petitioner interpreted as now requiring 90 days of assistance. As interpreted by Petitioner, the 90-day District Plan was effective beginning the 1997-98

    school year. The 90-day District Plan consisted of an additional 30-day School-Site Plan followed by the now statutorily required 90 days of assistance. Under the new and revised 90-day District Plan, a new evaluation instrument was used, which required only three teaching deficiencies versus the five teaching deficiencies that were required under the former District Plan. For Respondent's 90-day District Plan, a decision was made to continue evaluating Respondent using the prior instrument requiring five deficiencies.

42. The prior District Plan was not a part of the Union contract. However, the new 90-day District Plan, requiring a 30 plus 90-day assistance plan, was adopted by the Union and incorporated by reference in the Collective Bargaining Contract in Spring 1999. The Union and Petitioner worked for several years developing the new 30 plus 90-day assistance plan.

43. Respondent's 90-day District Plan consisted of workshops, professional observations and feedback from the observers, peer teaching observations and school sites visits, and special assistance with planning. Periodic assistance and progress meetings were also held, which included the attendance of Principal Collins, Respondent, Respondent's union representative, and Dr. Burdsall or one of her staff members. The content of those meetings were recorded and signed-off on.

44. On December 4, 1998, Dr. Lisa Troute, Petitioner's instructional specialist, Professional Standards, observed Respondent. Dr. Troute is a PAR teacher and is a certified FPMS observer. She determined, among other things, that Respondent had failed to develop any concepts. Dr. Troute concluded that Respondent's lesson was ineffective. She provided Respondent with recommendations regarding the six deficiencies. Dr. Troute returned to Respondent's classroom on December 15, 1998, and did not notice that any of her recommendations had been followed by Respondent.

45. On December 10, 1998, Dr. Burdsall observed Respondent. As to the six deficiencies, she provided Respondent with the same teaching strategies for improvement that she had provided at her observation of March 10, 1998. Dr. Burdsall determined that Respondent failed to teach anything relative to the lesson and that his student management remained a problem. She concluded that Respondent's teaching was ineffective and that he was an incompetent teacher.

46. A meeting regarding Respondent's 90-day District Plan was held on December 10, 1998. Persons in attendance included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall.

47. In January 1999, Dr. Kaiser held a meeting with Respondent and his union representative to address Respondent's

    request for a transfer. Dr. Kaiser held the meeting in January 1999, because she wanted a 90-day District Plan in place before considering the request. Granting the transfer was in

    Dr. Kaiser's sole discretion. She considered Respondent's, as well as the district's, concerns in making her decision.

    Dr. Kaiser denied Respondent's request. She determined that PBL High had taken sufficient precautions to assure the safety of Respondent and his students and that, even though vacancies existed at other schools in social studies, Respondent's remaining at PBL High would serve the best interest of everyone concerned. By letter dated January 15, 1999, Respondent was noticed of the denial.

48. Respondent was placed on a 30 plus 90-day School-Site and District Plan. The statutory provision in effect at the time, as interpreted by Petitioner, only required 90 days of assistance. An adjustment in the 90-day timeline was made due to a hurricane make-up day in February. The timeline was changed to March 11, 1999.

49. On January 14, 1999, Steve Byrne, Petitioner's program planner for social studies, multi-cultural students, and students who speak languages other than English (ESOL), observed Respondent. He is a certified FPMS observer. Respondent had requested that a content teacher observe him to assist him with content and teaching strategies; and Mr. Byrne's observation was

    for the purpose of content and teaching strategies. Mr. Byrne determined that Respondent had failed to teach any concepts and concluded that Respondent's lesson was ineffective. He met with Respondent and provided Respondent with feedback and strategies for improvement, including suggesting the use of cooperative learning as a more effective strategy.

50. A deficiency hearing was held. A determination was made that sufficient evidence was present to warrant Respondent being placed on a 90-day District Plan to correct the deficiencies.

51. On January 20, 1999, Dr. Mary Gray, assistant professor at Florida Atlantic University, observed Respondent. Since around 1982, she has trained trainers in the FPMS.

    Dr. Gray is a certified FPMS observer. For several years for PBL High, she observed teachers on District Plans and diagnosed teaching problems. When Dr. Gray observed Respondent, she observed, among other things, serious management problems and nothing meaningful being taught. Dr. Gray provided Respondent with improvement strategies. She concluded that Respondent's lesson was ineffective and that Respondent was incompetent as a teacher.

52. Dr. Gray reviewed Respondent's School-Site Plan, other observations, and the 90-day District Plan. She determined that a pattern existed which demonstrated a lack of teaching

    concepts, inability to manage student conduct, and off-task behavior. Dr. Gray concluded that Respondent was an incompetent teacher.

53. On January 28, 1999, Ms. Kaupe observed Respondent again. She completed an anecdotal observation, as there was no interaction between Respondent and his students. Ms. Kaupe determined, among other things, that Respondent had failed to teach any concepts and that students were off-task. She concluded that Respondent's teaching was ineffective. Ms. Kaupe provided Respondent with feedback and information regarding more effective teaching strategies.

54. On February 10, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his Union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall.

55. On February 24, 1999, Principal Collins observed Respondent. The six deficiencies were addressed, and recommendations were made; the six deficiencies remained. Student misconduct remained a problem.

56. On March 11, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall.

57. Principal Collins conducted a CTAS annual evaluation of Respondent on March 12, 1999, at the conclusion of the 90-day District Plan. In preparing the evaluation, Principal Collins considered the following observations: December 4, 1998, observation by Dr. Troute; December 10, 1998, observation by

    Dr. Burdsall; January 14, 1999, observation by Mr. Byrne; January 20, 1999, observation by Dr. Gray; January 28, 1999, observation by Ms. Kaupe; and February 24, 1999, observation by Principal Collins, himself. 6/ Principal Collins determined that Respondent had not corrected the six deficiencies. These deficiencies were the same deficiencies that were present at the conclusion of the 30-day School-Site Plan. The deficiencies were in the areas of Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Communication: Verbal and Nonverbal; Presentation of Subject Matter; and Demonstrates an Ability to Plan Effectively. Principal Collins determined further that Respondent was an ineffective teacher and that Respondent's teaching did not meet minimum standards to obtain a satisfactory evaluation. Respondent received a score of 26 and was rated unsatisfactory.

58. Principal Collins recommended to the Superintendent the termination of Respondent's employment with Petitioner. By letter dated March 23, 1999, Respondent was noticed by the

    Superintendent that she was going to recommend his suspension without pay, effective April 8, 1999, and termination, effective

    15 days after Petitioner's scheduled meeting on April 7, 1999.

    
    

59. Petitioner's professional development plan had several components, including a School-Site Plan, the PAR Program, and the 90-day District Plan. Respondent was provided all of the aforementioned three components.

60. The evidence demonstrates that Respondent cooperated with Petitioner and attempted to comply with the recommendations and assistance provided by Petitioner even though his attempts were deemed unsuccessful by Petitioner to correct the deficiencies. Respondent is a diabetic and some of the assistance conflicted with his medically required living- routine.

61. The evidence fails to demonstrate that Petitioner provided Respondent sufficient assistance to correct one of the deficiencies or concerns. Observers noted that one deficiency was that Respondent spoke in a monotone and lethargic manner. Respondent's speech is as described but such speech, as observed by the undersigned and supported by the evidence, is considered by the undersigned to be a part of Respondent's make-up, his nature and has been so apparently throughout his teaching career. The responsibility was upon Petitioner to assist Respondent in correcting his deficiencies. The evidence

    demonstrates that the assistance provided to correct this deficiency did little, if anything, to remedy Respondent's speech pattern. Petitioner did not ascertain as to whether Respondent's speech pattern was capable of being changed through avenues other than that provided by Petitioner, such as speech therapy, since peer observation was obviously not a remedy.

    Speech therapy was not even suggested by Petitioner as a remedy. Petitioner failed to provide Respondent sufficient assistance to correct his speaking in a monotone and lethargic manner.

62. The evidence is insufficient to support a finding that PBL High has a significant discipline problem.

63. The evidence demonstrates that Respondent has meticulously prepared lesson plans and that his lesson plans are satisfactory. The evidence also demonstrates that he becomes frustrated when he has to deviate from his lesson plans.

64. The evidence demonstrates that Respondent is knowledgeable in the subject area of social studies.

65. Respondent had requested two significant forms of assistance, which were denied. The first assistance Respondent requested was to have his PAR teacher model more effective teaching behaviors with his students using his course curriculum. According to Dr. Troute, Petitioner can make modeling services available upon request from principals at "D" and "F" rated schools, such as PBL High, to assist teachers

    experiencing performance problems at such schools. Principal Collins was unaware of the availability of modeling services and, as a result, Respondent's request was denied. The evidence fails to demonstrate that the denial was a detriment to Respondent's performance in correcting his deficiencies.

66. The second assistance Respondent requested repeatedly was a voluntary transfer. The granting of Respondent's transfer requests was discretionary with Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion.

67. The evidence fails to demonstrate that Principal Collins, Assistant Principal Carroll, Assistant Principal Lesser, any of Petitioner's administrative or management staff who observed Respondent, or any of the observers retaliated against Respondent. Furthermore, the evidence fails to demonstrate that any of the aforementioned persons retaliated against Respondent because of the letter written by Respondent's wife, dated March 4, 1998.

    CONCLUSIONS OF LAW

    
    

68. 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.

69. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent failed to correct

    his deficiencies and should not be issued a new professional services contract. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

70. Section 231.29, Florida Statutes (1995), entitled "Assessment procedures and criteria," 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 in his or her district. 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 beginning, probationary, and nonprobationary stages of a teaching career.

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

       4. The school board shall provide training programs which 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. Such training programs may be provided under s. 231.087.

          
          

    2. The assessment procedure shall comply with, but shall not be limited to, the following requirements:

       1. An assessment relating to the criteria

          specified in subsection (3) shall be conducted for each employee at least once a year. Such assessment shall be based upon sound educational principles and contemporary research in effective educational practices.

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

       3. A written report of each assessment shall be made and a copy thereof shall be given to the employee no later than 10 days after the assessment takes place. The written report of assessment shall be discussed with the employee by the person responsible for preparing the report. 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. In the event that an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time.

          
          

    3. A complete statement of the assessment criteria shall include, but shall not be limited to, observable indicators that relate to the following:

       1. Ability to use appropriate classroom management techniques, including 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. Other professional competencies, responsibilities, and requirements as determined by the local district.

          
          

    4. The individual responsible for the supervision of the employee shall make the assessment of the employee and forward such assessment to the superintendent for the purpose of reviewing the employee's contract.

    
    

71. Section 231.36, Florida Statutes (Supp. 1996), entitled "Contracts with instructional staff, supervisors, and principals," 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, 1 year of which must be the professional orientation program where required, 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.

       * * *

       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 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 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 . . .

       
       

72. 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. (emphasis added)

          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. . . .

          
          

73. Section 231.29, Florida Statutes (Supp. 1998), effective May 22, 1998, contains the same provisions as the 1997 version, except for being amended to add subsection (8), which provides as follows:

    (8) The State Board of Education shall adopt rules that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance.

    
    

74. 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:

    (emphasis added)

    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.

       * * *

       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 (f) 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)). (emphasis added)

       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.

       1. 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.

          (emphasis added)

       2. 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 . . .

75. Respondent held a professional service contract during the 1997-98 school year and the 1998-99 school year.

    A professional service contract shall be renewed each year unless certain circumstances occur regarding unsatisfactory performance. Section 231.29, Florida Statutes (1997) and Subsections 231.36(a) and (e), Florida Statutes (1997). For the 1997-98 school year, Petitioner's CTAS annual evaluation was on March 9, 1998, and Respondent was rated satisfactory. However, a second CTAS annual evaluation was completed on May 29, 1998, and Respondent was rated unsatisfactory. Petitioner was required to notify Respondent "6 weeks prior to the end of the postschool conference period" of an unsatisfactory rating.

    Subsection 231.36(3)(f), Florida Statutes (1997). Petitioner was unable to provide and failed to provide Respondent with the required notice.

76. Having been rated unsatisfactory on the annual evaluation of May 29, 1998, Respondent was not subject to the

    90-day District Plan during the next school year, 1998-99 school year, but he was subject to an additional year to correct his deficiencies. Subsections 231.36(3)(e) and (f), and 231.29(3)(d), Florida Statutes (1997). Petitioner failed to provide Respondent with the one year to correct his deficiencies without imposing the 90-day District Plan. Respondent was denied his due process right to be afforded the statutorily

    required one year to correct his deficiencies before the imposition of the 90-day District Plan.

77. The undersigned is persuaded that Respondent had a property interest in continued employment. Osburn v. School Board of Okaloosa County, 451 So. 2d 980 (Fla. 1st DCA 1984);

Texton v. Hancock, 359 So. 2d 895 (Fla. 1st DCA 1978); and Burns v. School Board of Palm Beach County, 283 So. 2d 873 (Fla. 4th DCA 1973). Petitioner should have afforded Respondent his due process rights. Respondent should have been afforded a year to correct his deficiencies.

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. Refusing to uphold the suspension without pay and recommendation for termination.

2. Reinstating John Kent with full backpay and lost benefits.

DONE AND ENTERED this 2nd 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 2nd day of June, 2000.

ENDNOTES

1/ All of Petitioner's other exhibits which are not referred to were neither identified nor offered for admission into evidence.

2/ Formerly, Petitioner's Exhibit numbered 15.

3/ All of Respondent's other exhibits which are not referred to were neither identified nor offered for admission into evidence.

4/ Section 231.36(3)(f), F.S. (1997).

5/ Petitioner's Exhibit numbered 85 lists an observation dated October 2, 1998. It is evident that the date is in error. The observation was conducted on October 12, 1998.

6/ Petitioner's Exhibit numbered 142 lists several observation dates. It is evident that the dates of January 8, 1999, and January 29, 1999, are in error and should be January 14, 1999,

and January 28, 1999, respectively.

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire School Board of Palm Beach County Office of General Counsel

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

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

Tallahassee, Florida 32302

Lloyd J. Heilbrunn, Esquire Admiralty Towers

4400 PGA Boulevard, Suite 700

Palm Beach Gardens, Florida 33410

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

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

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: 99-001708

Orders for Case No: 99-001708