STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 00-1203
)
DOROTHY D. CLEMONS, )
)
Respondent. )
)
RECOMMENDED ORDER
The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter on October 26, 2000, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Eugene K. Pettis, Esquire
Haliczer, Pettis & White, P.A.
101 Northeast Third Avenue Sixth Floor
Fort Lauderdale, Florida 33301
For Respondent: Mark F. Kelly, Esquire
Kelly & McKee, P.A.
1718 East Seventh Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES
The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to
correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
PRELIMINARY STATEMENT
By letter dated February 16, 2000, Superintendent of Schools Frank Till notified Respondent Dorothy Clemons ("Clemons") that he intended to recommend to the School Board of Broward County (the "Board"), at its meeting on March 7, 2000, that she be formally suspended without pay from her employment as an elementary school teacher due to "unsatisfactory job performance." The superintendent's letter further informed Clemons that he would recommend her dismissal and that, unless she requested a formal hearing no later than March 22, the Board would act on this recommendation at its April 4, 2000, meeting.
Clemons requested a formal hearing by letter dated March 2, 2000. The Board met on March 7 and approved the superintendent's recommendation to suspend Clemons "as of this date without pay pending termination of [her] teacher contract." The School Board Attorney referred the matter to the Division of Administrative Hearings on March 20, 2000, where it was assigned to an Administrative Law Judge.
The undersigned convened the final hearing on October 26, 2000, in Fort Lauderdale, Florida. The Board presented the
following witnesses during its case-in-chief: Doris P. Bennett, Principal of Lauderdale Manors Elementary School ("Lauderdale Manors"); Dorothy Clemons (called as an adverse witness); Jounice Lewis, a Coach with the Alliance of Quality Schools; William Roach, former Assistant Principal of Lauderdale Manors; and Keith Miller, Assistant Principal of Lauderdale Manors. In addition, the Board offered two composite exhibits which were received in evidence. Petitioner's Exhibit 1 is a notebook containing items that the Board labeled "Documentation Materials." The Documentation Materials are composed primarily of records reflecting the efforts that were made during Clemons' tenure at Lauderdale Manors to evaluate her performance, notify her of deficiencies, assist in correcting identified deficiencies, and finally assess whether Clemons had corrected performance deficiencies. 1/ Petitioner's Exhibit 2 consists of Clemons' personnel file.
Clemons testified on her own behalf and also called Dwight Hamilton, a field representative for the Broward Teachers' Union. She did not offer any documents into evidence.
At the close of the hearing, the undersigned announced that the parties' proposed recommended orders would be due within ten days after the filing of the transcript, and that a recommended order would be issued within 30 days after the date on which the transcript was filed. After the filing of the transcript on
November 27, 2000, the parties moved jointly to enlarge the deadline for filing their respective proposed recommended orders, to December 8, 2000. That motion was granted. Each party thereafter timely filed a proposed recommended order, and the undersigned has considered carefully their submissions in the preparation of this Recommended Order.
FINDINGS OF FACT
The evidence presented at final hearing established the facts that follow.
Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education.
From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994.
The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of
1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal.
Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom.
By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS").
The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the
teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating.
In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed.
Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved.
Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach
both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills."
Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile,
get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/
The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U."
Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year.
Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett
wrote: “Have noticed some, slight improvement this year, but
still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous:
Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed?
A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more.
(T. 186.)
And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out.
Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that
Clemons’ performance did improve in her fourth year at Lauderdale Manors.
The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons:
Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to
Ms. Clemons' classroom? A [by Miller]. Yes.
Q. And what were those areas of deficiency that you were aware of in '98/'99?
A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints.
As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management.
Q. So, how would you seek that out?
A. By going into the classroom and observing.
* * *
Q. What types of things were you looking for . . . in '98/'99 during your observations?
A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to
classroom management and the concern with parents saying the children were coming home and saying one thing.
And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case.
Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption.
And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time.
And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management.
(T. 194-97.)
Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers"
(e.g. math and reading assignments) on the chalk board in the
morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes.
In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed.
Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered:
When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom
Observation/Feedback Form prepared by Miller and signed by him and Clemons on
September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation.
* * *
One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in.
And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down.
There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly.
(T. 202-04.)
Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance.
Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving.
On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000.
As explained in a separate memorandum dated
October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning.
Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000.
Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a
Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000.
When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period.
On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning.
The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings:
The teacher fails to:
maintain consistency in the application of policy and practice by:
establishing routines and procedures for the use of materials and the physical movement of students.
formulating appropriate standards for student behavior
identifying inappropriate behavior and employing appropriate techniques for correction.
Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions:
To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns.
Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.)
Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques.
Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques.
Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies.
Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback.
Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies.
Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom.
The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made.
The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows:
The teacher fails to:
select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs.
create interest through the use of materials and techniques appropriate to the varying abilities and background of students.
use individual student interests and abilities when planning and implementing instruction.
The prescribed interventions for these deficiencies were:
Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom.
Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback.
Grade 3 Team Leader will review strategies and provide intensive
support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities.
Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999.
Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management.
Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning.
Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated.
As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.)
Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches
such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty.
Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties:
"Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.)
The reading center was "not inviting." (T. 165.)
The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.)
"Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.)
In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the
"content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control.
Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999.
Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999.
On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed
the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique.
By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000.
On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of
instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas.
Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now
being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges.
By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period.
The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute
," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000.
Clemons timely requested a hearing by letter dated March 2, 2000.
The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000.
Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes.
Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the
probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes.
The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 231.29(3)(d)2.b.(II), 231.36(6)(a)2., 120.569 and 120.57(1), Florida Statutes.
In their respective proposed recommended orders, each of the parties has assumed without explanation that a termination under Section 231.29(3)(d), Florida Statutes (providing for termination upon failure to correct identified
performance deficiencies within 90 days), must be effected through Section 231.36(6)(a), Florida Statutes (authorizing immediate suspension or dismissal for "just cause"). The parties seem to agree that unsatisfactory performance which is not corrected on probation constitutes just cause for dismissal, although neither makes the point explicitly. While Clemons denies the charge of unsatisfactory performance and thereby disclaims the existence of just cause, the Board adds yet additional allegations, urging that Clemons be dismissed pursuant to Section 231.36(6)(a) on grounds of incompetency and misconduct in office.
Thus, both parties have begged the question whether Section 231.29(3)(d) provides a legal basis for terminating a teacher's employment contract that is separate and distinct from the dismissal procedure set forth in Section 231.36(6)(a), raising a threshold consideration. The interplay between Sections 231.29(3)(d) and 231.36(6)(a) is not academic in this case, for at least two reasons.
First, the Board formally charged Clemons with "unsatisfactory job performance" under Section 231.29 — but not, pursuant to Section 231.36(6)(a), with any particular instance of just cause as provided in Section 231.36(1)(a). Thus, unless “unsatisfactory performance” 14/ constitutes just cause — which would make the procedures of Section 231.36(6)(a), in
addition to those set forth in Section 231.29(3)(d), applicable to a teacher termination for unsatisfactory performance — there will be a question whether Clemons' due process right to adequate notice was satisfied.
Second, while Section 231.36(6)(a), Florida Statutes, expressly authorizes a school board to suspend an employee without pay upon making a charge of just cause against him, Section 231.29, Florida Statutes, does not correspondingly provide expressly for the suspension without pay of an employee charged merely with unsatisfactory performance. Therefore, if Sections 231.29(3)(d) and 231.36(6)(a), Florida Statutes, are separate and distinct, then unless the Board properly has made out a case under Section 231.36(6)(a), Florida Statutes, (including the provision of adequate notice), or unless the power to suspend without pay can be located in Section 231.29, Florida Statutes, Clemons should be paid back salary regardless whether the Board has established the right to terminate Clemons' employment pursuant to Section 231.29, Florida Statutes. 15/
To understand the statutory mechanisms at issue and how they apply in Clemons' situation, the best starting point is Section 231.36(3)(e), Florida Statutes (2000), which provides:
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.
This statute provides unambiguously that an employee charged with unsatisfactory performance is made subject to the procedures set forth either in Sections 231.29(3)(d) or 231.36(3)(f), Florida Statutes, — but not Section 231.36(6)(a).
Here, the superintendent charged Clemons with performance deficiencies pursuant to Section 231.29, Florida Statutes, after receiving from Bennett the recommendation required by Section 231.29(3)(d)2.b, Florida Statutes. Thus, according to Section 231.36(3)(e), Florida Statutes, Clemons was subject either to the procedures set forth in Section 231.29(3)(d) or those of Section 231.36(3)(f), Florida Statutes, depending on whether the professional service contract she held on July 1, 1997, had been renewed before she was notified of the performance deficiencies. Because professional service
contracts are renewed annually and because Clemons was notified of uncorrected performance deficiencies in February 2000, the procedures of Section 231.29(3)(d), Florida Statutes, are controlling.
Section 231.29(3)(d), Florida Statutes, provides as
follows:
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:
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.a. If the employee holds a professional service contract as provided in s. 231.36, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following 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 who holds a professional service contract 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 who holds a professional service contract 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.
b. 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 who holds a professional service contract 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. If the employee wishes to contest the superintendent's recommendation, the employee must, within 15 days after receipt of the superintendent's recommendation, submit a written request for a hearing.
Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:
A direct hearing conducted by the school board within 60 days after 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
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 after 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.
By its plain terms, Section 231.29(3)(d)2.b. authorizes termination as the consequence for failing to correct identified performance deficiencies within the 90-day performance probation period; it does not refer to Section 231.36 as the vehicle for implementing a decision to terminate under Section 231.29, Florida Statutes, however, nor does it state explicitly that uncorrected performance deficiencies shall constitute just cause for dismissal.
Statutes in pari materia such as Sections 231.36(3)(e)
and 231.29(3)(d) must be read together and, where possible, construed in harmony with one another. See Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla.
1992). Although the former points to the latter, neither mentions Section 231.36(6)(a). The seemingly inescapable conclusion is that Section 231.29(3)(d) — like Section 231.36(3)(f), which is also identified specifically in Section 231.36(3)(e) — prescribes procedures, which include a formal administrative hearing, that are complete in themselves and sufficient, without recourse to another statutory process (i.e. Section 236.36(6)(a)), to bring about the termination of an employee who is not performing satisfactorily.
To test the validity of the conclusion that Section 231.29(3)(d) is not dependent upon Section 31.36(6)(a), Section 231.36(6)(a) itself must be examined. It provides:
Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). The school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid. If the employee wishes to contest the charges, the employee must, within 15 days after receipt of the written notice, submit a written request for a hearing. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:
A direct hearing conducted by the school board within 60 days after 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
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 after 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.
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.
Under Section 231.36(6)(a), Florida Statutes, suspension and dismissal are authorized only for "just cause as
provided in paragraph (1)(a)." 16/ Therefore, a teacher charged with unsatisfactory performance would be subject to Section 231.36(6)(a), Florida Statutes, only if unsatisfactory performance constitutes just cause.
The term “just cause” is described (but not fully defined) in Section 231.36(1)(a), Florida Statutes, which directs that all professional service contracts
shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
Conspicuously absent from Section 231.36(1)(a) is any specific mention of unsatisfactory performance. Conversely, and equally important, Section 231.29(3)(d), Florida Statutes, does not use
the term “just cause” to describe a teacher’s failure to correct identified performance deficiencies within 90 calendar days.
Plainly, though, Section 231.36(1)(a), Florida Statutes, does not attempt to list all possible instances of just cause. Rather, the legislature purposefully refrained from attempting to catalogue every conceivable type of incompetency or misconduct that might warrant immediate dismissal, doubtless to leave room for the inclusion of instances that the legislature might not have foreseen.
The legislature clearly did not overlook unsatisfactory performance, however. To the contrary, Section 231.36(3)(e), Florida Statutes, explicitly provides that employees "charge[d] . . . with unsatisfactory performance" shall be governed by the procedures of either Section 231.29(3)(d) or 231.36(3)(f), Florida Statutes, — a fact which demonstrates conclusively that the legislature had unsatisfactory performance in mind at a time when Section 231.36, Florida Statutes, was under consideration by that body.
Had the legislature intended to make termination for unsatisfactory performance subject to the procedures not only of Section 231.29(3)(d) but also those of Section 231.36(6)(a), the legislature easily could have added unsatisfactory performance to Section 231.36(1)(a)’s list of instances amounting to just cause, or provided in Section 231.29(3)(d) that the failure to
correct performance deficiencies shall be just cause for dismissal. It did neither.
Moreover, had the legislature intended for Section 231.36(6)(a) to be the mechanism for implementing a decision to terminate under Section 231.29(3)(d), it would not have needed to include specific provisions for formal administrative proceedings in Section 231.29(3)(d)2.b.(I) and (II), which are substantially identical to the provisions of Section 231.36(6)(a)1. and 2. To construe Section 231.36(6)(a) as the vehicle for carrying out a teacher termination pursuant to Section 231.29(3)(d) would reduce the provisions of Section 231.29(3)(d)2.b.(I) and (II) to mere surplussage — a result to be avoided whenever reasonably possible. See C.R.C. v. Portesy, 731 So. 2d 770, 772 (Fla. 2d DCA 1999).
Consequently, the plain language of the statutes in question — namely, Sections 231.29(3)(d), 231.36(1)(a), 231.36(3)(e), and 231.36(6)(a) — practically compels the conclusion that unsatisfactory performance is not an instance of just cause for dismissal. Following that conclusion, Section 231.36(6)(a), according to its unambiguous terms, cannot apply to teachers charged only with unsatisfactory performance pursuant to Section 231.29, and the independence of Section 231.29(3)(d) is confirmed.
There is, however, one final question to answer concerning whether unsatisfactory performance constitutes just cause. It arises from Section 231.36(1)(a), Florida Statutes, which requires that professional service contracts contain “provisions for dismissal during the term of the contract only
for just cause.” (Emphasis added). Because a teacher’s contract shall provide that he or she may be dismissed during its term only for just cause, it is reasonable to ask whether the legislature must have meant unsatisfactory performance to be a just cause — assuming it also intended that termination pursuant to Section 231.29(3)(d), Florida Statutes, could occur during the term of a contract.
Whether Section 231.29(3)(d), Florida Statutes, allows termination during the term of the contract is a matter of interpretation, because the statute (unlike Section 231.36(6)(a)) does not expressly state when termination may occur. To better understand the meaning of Section 231.29(3)(d) requires a bit a legislative history.
Before the enactment in 1997 of the termination procedures of Section 231.29(3)(d), Florida Statutes, 17/ the means for ending the employment of a teacher whose performance had been determined to be unsatisfactory, pursuant to a Section 231.29, Florida Statutes, evaluation, were provided in Section 231.36(3)(e), Florida Statutes (Supp. 1996). Under former
Section 231.36(3)(e) — the provisions of which are currently codified, with minor revisions, in Section 231.36(3)(f), Florida Statutes (2000) — a poorly performing teacher was afforded an entire school year to remedy deficiencies identified during the preceding year. If those deficiencies were not corrected in the year following a notice of unsatisfactory performance, the teacher's employment could be terminated by not renewing his professional service contract.
Section 231.29(3)(d), Florida Statutes (2000), took effect on July 1, 1997. See Chapter 97-310, Laws of Florida. Intended to replace the procedures of former Section 231.36(3)(e), the new statute clearly speeded up the process for eliminating poorly performing teachers. The period for correcting deficiencies was shortened from one school year to
90 calendar days. Within 14 days after this 90-day probation period, the affected teacher's evaluator must forward a recommendation to the superintendent, who in turn must communicate, within 14 days after receiving the evaluator's recommendation, a decision whether to recommend that the school board terminate or continue the teacher's contract.
These requirements to act quickly after the 90-day probation period would be undercut if termination needed to be effected, as under former Section 231.36(3)(e), Florida Statutes, through non-renewal of the teacher's contract after
the school year. Put another way, to interpret Section 231.29(3)(d), Florida Statutes, as requiring termination by non- renewal of the contract would tend to frustrate an evident purpose behind the statute’s enactment — which, to repeat for emphasis, is to shorten the time required for weeding out under- performing teachers. The potential for thwarting this goal would be greatest when a poorly performing teacher’s probation commences shortly after the beginning of a school year or within
90 days before its close. In such instances, if non-renewal were the only permissible termination mechanism, the likelihood is that the teacher (assuming she failed to correct identified deficiencies) would need to be kept on the payroll for a much longer period — until after the end of a school year — than is consistent with the time limits imposed under Section 231.29(3)(d), Florida Statutes.
Thus, to avoid interfering with a readily ascertainable object of the statute, see Van Pelt v. Hilliard, 78 So. 693, 695 (Fla. 1918), Section 231.29(3)(d), Florida Statutes, must be understood to permit termination for unsatisfactory performance during the term of a teacher’s contract. As a result, the question persists: In light of Section 231.36(1)(a), Florida Statutes, must it be concluded that the legislature intended unsatisfactory performance to be considered a just cause for dismissal?
The answer is no, for several reasons. First, under former Section 231.36(3)(e), Florida Statutes, as it existed prior to July 1, 1997, termination for unsatisfactory performance was not considered a just cause dismissal. See School Board of Palm Beach County vs. Steel, DOAH Case No. 97-
2386, 1999 WL 1483590, *11 (Recommended Order entered July 30, 1999) ("Proceedings under Section 231.36(3)(e) are separate and distinct from proceedings under Section 231.36(1)(a)."); Taylor
vs. Hernandez, DOAH Case No. 97-1855, 1997 WL 1053318, *7-*8 (Recommended Order entered Sept. 26, 1997). Arguably, therefore, absent express legislative direction to the contrary, that previous understanding should subsist under the present law. But, as discussed above, termination could not be had during the term of the contract under former Section 231.36(3)(e); rather, termination was effected through non- renewal of the teacher’s contract after its term had expired.
Consequently, while it may be instructive that unsatisfactory performance was not a just cause under the former statutory scheme, the consideration is by no means conclusive.
Second, the fact that an employment contract provides for termination during its term only for just cause is not a bar to immediate dismissal for a reason other than just cause pursuant to a statute that permits this result. This is because “[v]alid laws in effect at the time a contract is made enter
into and become a part of the contract as if expressly incorporated into the contract.” Gordon v. State, 608 So. 2d 800, 802 (Fla. 1992), cert. denied, 507 U.S. 1005 (1993);
Department of Insurance v. Teachers Ins. Co., 404 So. 2d 735, 741 (Fla. 1981) (“It is fundamental that the laws of Florida are a part of every Florida contract.”). Therefore, the contractual provisions mandated by Section 231.36(1)(a) do not require that a determination of unsatisfactory performance under Section 231.29(3)(d) be considered just cause — even though termination for unsatisfactory performance can take place during the term of the contract.
Third, when the legislature enacted Section 231.29(3)(d), it took care to exempt holders of existing contracts from the new procedures — and basis — for dismissal during the term of a contract. See Section 231.36(3)(e),
Florida Statutes (2000) (distinguishing between contractholders as of July 1, 1997, and those who would enter into or renew contracts after that date). This ensured that Section 231.29(3)(d) would not run afoul of Article 1, Section 10 of the Florida Constitution, which prohibits laws that impair the obligation of contracts. See In re Advisory Opinion to the Governor, 509 So. 2d 292, 314 (Fla. 1987) (“Any legislative action which diminishes the value of a contract is repugnant to and inhibited by the Constitution.”); Manning v. The Travelers
Ins. Co., 250 So. 2d 872, 874 (Fla. 1971) (Florida Constitution
prohibits laws that effectively rewrite existing contracts by changing parties’ substantive rights). Thus, it is not necessary to interpret unsatisfactory performance under Section 231.29(3)(d) as an incident constituting just cause for dismissal in order to avoid an unconstitutional construction of the statute. See Russo v. Akers, 724 So. 2d 1151, 1153 (Fla.
1998) ("[W]hen possible, a statute must be construed so as not to conflict with the constitution."). 18/
To summarize the foregoing, after carefully reviewing the provisions of Sections 231.29 and 231.36, Florida Statutes, I conclude that unsatisfactory performance as determined under Section 231.29(3)(d), Florida Statutes, is not, without more, an incident of just cause pursuant to Section 231.36(1)(a), Florida Statutes, for which dismissal may be had in accordance with Section 231.36(6)(a), Florida Statutes. Rather, a teacher who fails to correct identified performance deficiencies during the prescribed 90-day probation may be terminated during the term of his contract pursuant to the procedures of Section 231.29(3)(d), Florida Statutes, which are complete in themselves and are independent of the procedures set forth in Section 231.36(6)(a).
Consequently, when a school board seeks to terminate an employee for unsatisfactory performance under Section 231.29(3)(d), Florida Statutes, it need not prove just cause as
described in Section 231.36(1)(a), Florida Statutes. And, conversely, when a school board attempts to dismiss an employee for just cause pursuant to Section 231.36(6)(a), Florida Statutes, it cannot rely simply upon proof of a failure to correct performance deficiencies under Section 231.29(3)(d).
When the superintendent notified Clemons that he would recommend her suspension and dismissal, he did not inform Clemons that a charge of just cause would be brought against her. In his letter to Clemons of February 16, 2000, the superintendent accused her of "unsatisfactory job performance, cited Section 231.29, and quoted from Section 230.33(7)(e), Florida Statutes (authorizing superintendent to suspend employee with pay for brief period during emergency), but he did not use the term "just cause" or refer to Sections 231.36(1)(a) or 231.36(6)(a), Florida Statutes. 19/ The question arises, therefore, whether the Board properly notified Clemons that it would seek to dismiss her for just cause.
A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [district school board] alleges has
been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring). Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA
1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); and Willner v. Department of Professional
Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 295 (1991).
The Board's failure to serve Clemons with a notice of specific charges setting forth the particular instances of incompetency or misconduct of which it would accuse her is a procedural defect that might have been fatal to the Board's attempt to prosecute Clemons pursuant to Section 231.36(6)(a), Florida Statutes, except that counsel for both parties executed a Pre-Hearing Stipulation which framed one of the legal issues for determination by the administrative law judge as follows:
Whether the Respondent failed her assessment as a teacher as of February 11, 2000 as defined by Florida Statute
§231.29(3)(a); DOE Standards; Principles of Professional Conduct; [Rule] 6B-4009(1)(a) and (b) and School Board policy so as to warrant dismissal under Florida Statute
§231.36(6)(a) and Florida Statute 231.36(7)(a) [sic, presumably
§231.36(1)(a)].
Pre-Hearing Stipulation, Paragraph H.2. The specific references in the parties' joint stipulation to Section 231.36, Florida Statutes, as well as Rule 6B-4.009(1)(a) and (b), Florida Administrative Code (which defines the term "incompetency" for the purposes of Section 231.36), demonstrate that, one way or another, Clemons was on notice of the Board's intention to dismiss her not only pursuant to Section 231.29, but also pursuant to Section 231.36, Florida Statutes. Further, having stipulated to inject Section 231.36 issues into this proceeding, Clemons cannot claim to have been prejudiced by the Board's earlier failure to provide proper notice of charges under Section 231.36.
Thus, I conclude that the Board is not precluded, on the ground of insufficient notice, from seeking Clemons' dismissal pursuant to Sections 231.36(1)(a) and 231.36(6)(a), Florida Statutes.
Turning now to the merits, the questions are whether the Board proved that Clemons failed to correct her performance deficiencies in accordance with Section 231.29(3)(d), Florida
Statutes, and whether the Board proved that Clemons was guilty of just cause for dismissal under Section 231.36(6)(a).
Because this case is a proceeding to terminate a teacher's employment and does not involve the loss of a license or certification, the Board has the burden of proving the alleged grounds for dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d
476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County,
571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).
As a matter of law, the Board carried its burden under Section 231.29(3)(d) to establish by competent substantial evidence that Clemons did not satisfactorily correct her identified performance deficiencies within the 90-day probation period. Indeed, Clemons herself admitted that she continued to have problems in the area of behavior management as of the ninetieth day of her probation. Accordingly, the Board is justified in terminating Clemons' employment for unsatisfactory performance.
Whether the Board proved Clemons guilty of just cause is another matter. In its proposed recommended order, the Board argues that Clemons should be dismissed for incompetency and misconduct in office. For the reasons that follow, the Board has not carried its burden of proof on these charges.
According to Rule 6B-4.009(3), Florida Administrative Code, the term "misconduct in office" (which is a stated ground for just cause dismissal as provided in Section 231.36(1)(a), Florida Statutes) includes a violation of the "Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system." The Board accuses Clemons of having violated Rule 6B-1.006(3)(a), which requires that a teacher shall "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."
The Board has not shown by the greater weight of competent substantial evidence that Clemons committed a serious violation of Rule 6B-1.006(3)(a), Florida Administrative Code. 20/ To the contrary, on the IPAS instrument that Bennett completed on February 11, 2000, the principal rated Clemons "satisfactory" in the area of "professional competencies," the performance indicator for which is: "Complies with Florida Statutes, State Board of Education Rules, School Board of Broward County Policies, and other applicable regulations." Bennett's contemporaneous evaluation, based on personal observation, is patently incongruous with a finding of misconduct in office.
The charge of incompetency presents a closer question.
Under Rule 6B-4.009(1), Florida Administrative Code, "incompetency" is defined as
inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
The Board accuses Clemons of incompetency on "inefficiency" grounds as provided in Rule 6B-04.009(1)(a)(1) and (2), Florida Administrative Code.
The greater weight of competent substantial evidence did not demonstrate that Clemons repeatedly failed to perform duties prescribed by law. Such a conclusion, moreover, could not be reconciled with Bennett's determination that as of February 11, 2000, Clemons was complying satisfactorily with all applicable statutes, rules, and policies. See Paragraph 82, supra.
As for whether Clemons deprived her pupils of "minimum educational experience" by repeatedly failing to communicate with and relate to them, the evidence is nearly equally balanced. On the Board's side, a preponderance of evidence showed that Clemons' classroom was frequently out of control and, at least at times, chaotic. Because it is axiomatic that a chaotic classroom is not conducive to learning, a reasonable inference can be drawn that the educational experience of Clemons' students left much to be desired. And that inference is compatible with a conclusion of incompetency.
But on the other hand, there was no direct evidence — such as expert testimony regarding what constitutes "minimum educational experience" or test scores showing that, in comparison with other students, Clemons' pupils were under- achieving 21/ — that the educational experience in Clemons' classroom fell below the bare minimum required to avoid a finding of incompetency. The difficult question, therefore, is
whether it is legally permissible to infer, on the circumstantial evidence presented, that the educational experience in Clemons' classroom was so woeful as to justify a conclusion of incompetency.
In Clemons' favor there is the February 11, 2000, IPAS form, on which Bennett rated Clemons "satisfactory" in 80 percent of the performance areas. This document establishes that in Bennett's contemporaneous opinion based on firsthand observation, Clemons measured up adequately against the numerous performance indicators for the eight areas, including lesson presentation, communication, and classroom management, in which she was rated "satisfactory." From this it is reasonable to infer that Clemons was not a complete failure in the classroom.
In a similar vein, the undersigned places significance on the fact that the Board never sought to remove Clemons immediately from her classroom on the basis of incompetency, as it could have (and should have) done under Section 231.36(6)(a), Florida Statutes, had it believed that grounds for such action existed. If Clemons were thought to have been guilty of incompetency, then it would have been irresponsible to allow her to remain in the classroom for any time after making that determination — much less for 90 days. Yet, Clemons was placed on performance probation twice in consecutive years. This
suggests that Clemons' performance was not so poor as to
constitute incompetency. Rather, her evaluators evidently believed that Clemons could improve her deficiencies and ultimately be successful without depriving her students of "minimum educational experience" in the meantime. 22/
Weighing all the facts in the balance, I conclude that under the totality of circumstances, it is not patent and obvious that Clemons' students were deprived of minimum educational experience; hence, that alleged fact will not be inferred. Cf. Walker v. Highlands County School Board, 752
So. 2d 127, 128 (Fla. 2d DCA 2000) (ineffectiveness in the school system, which is an element of misconduct in office, may be inferred where circumstances show that such ineffectiveness was "patent and obvious"); cf. also Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000) (ineffectiveness could be inferred from fact that teacher had committed perjury in his criminal trial). Accordingly, the evidence has come up short — though not by much — of establishing by a preponderance that Clemons was guilty of incompetency as provided in Rule 6B-4.009(1)(a)(2), Florida Administrative Code.
Section 231.36(6)(a) mandates that where, as here, "charges [of just cause] are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid." Thus, the Board's failure to make out a case under
Section 231.36(6)(a), Florida Statutes, raises one last issue, namely, whether the Board was entitled to suspend Clemons without pay pursuant to Section 231.29(3)(d), Florida Statutes, under which procedures the Board has prevailed.
In contrast to Section 231.36(6)(a), Florida Statutes, which empowers a school board to suspend without pay and to dismiss a teacher "at any time during the term of [his or her] contract," Section 231.29(3)(d), Florida Statutes, does not expressly allow suspension without pay. See Johnson v. School Board of Palm Beach County, 403 So. 2d 520, 524 (Fla. 1st DCA 1981) (Section 231.36(6), Florida Statutes, contains only statutory reference to power to suspend without pay).
Because Section 231.29(3)(d), Florida Statutes, like Section 231.36(6)(a), Florida Statutes, is penal in nature, it must be construed in favor of the employee. See Rosario v.
Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992). With that principle in mind, Section 231.29(3)(d)'s silence regarding suspension, especially when compared with Section 231.36(6)(a)'s express grant of the power to suspend without pay for just cause, loudly proclaims a legislative intent that suspension without pay not be a consequence of failing to correct performance deficiencies. Cf. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995) ("When the
legislature has used a term . . . in one section of the statute
but omits it in another section of the same statute, [courts] will not imply it where it has been excluded.")
Given the absence of explicit authority to suspend persons without pay pursuant to Section 231.29(3)(d), Florida Statutes, it would be improper to infer this power under the guise of statutory interpretation, effectively adding words to the statute that the legislature saw fit to omit. See In re Order on Prosecution of Criminal Appeals by the Tenth Judicial
Circuit Public Defender, 561 So. 2d 1130, 1137 (Fla. 1990) ("Courts should not add words to a statute not placed there by the legislature, especially where uncertainty exists as to the intent of the legislature.").
I conclude that Section 231.29(3)(d), Florida Statutes, does not authorize the suspension of a teacher without pay pending termination of her contract on the ground of unsatisfactory performance.
Because the Board has failed to prove a legal basis for suspending Clemons without pay, her back salary must be paid.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida
Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes.
DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 28th day of December, 2000.
ENDNOTES
Petitioner's Exhibit 1 also includes copies of letters from parents who had complained about Clemons. Clemons objected to these letters as hearsay. The undersigned agreed that the letters would be hearsay if offered to prove the truth of facts stated in them. Nevertheless, the correspondence was allowed in evidence in accordance with Section 120.57(1)(c), Florida Statutes, which authorizes the use of hearsay evidence in administrative proceedings to supplement or explain other competent evidence. Because the Board's non-hearsay evidence did not need to be supplemented or explained by the otherwise inadmissible hearsay, however, the parents' letters have not formed the basis, either by themselves or in conjunction with other evidence, for any findings of fact or conclusions of law in this Recommended Order.
Clemons taught second grade at West Shore Elementary School in Hillsborough County, Florida, from 1984 until January 1988, when she resigned mid-year because the job had become, in her words, "overwhelming emotionally for me." (T. 147.) Clemons admitted having experienced classroom management problems at West Shore Elementary School — specifically difficulty in
correcting student misconduct — that were "very similar" to the performance deficiencies that would later be identified at Lauderdale Manors. (T. 136-37, 149.) She did not, however, have any problems relating to instructional planning before arriving at Lauderdale Manors. T. 136.
See Section 231.29(3), Florida Statutes.
According to Bennett, some dozen students (or about one- third the original number) were removed from Clemons' fifth grade class in 1995-96 at the request of concerned parents.
Clemons has invited the undersigned to infer from the fact of her assignment to a drop-out prevention class an intent on the part of Bennett specifically (or the Board generally) to set Clemons up for failure. While the assignment of a struggling teacher to an arguably more challenging classroom situation might be consistent with the scenario Clemons posits, the evidence in this case simply does not support a finding that either Bennett or the Board sought to exacerbate Clemons' performance deficiencies. To the contrary, the evidence showed, and the undersigned finds as fact, that at every turn appropriate, good faith efforts were made to assist Clemons in correcting her performance deficiencies.
Section 231.29(3)(d)2.b., Florida Statutes, provides that the evaluator "must assess whether the performance deficiencies have been corrected and forward a recommendation to the superintendent" within 14 days after the 90-day period. Within
14 days after receiving this recommendation, the superintendent must notify the employee whether he or she has corrected the deficiencies and whether the superintendent will recommend that the school board continue or terminate the teacher's contract.
At one time, Lauderdale Manors was designated by the state as a "Level 1" school, meaning that it was not showing considerable progress in meeting the needs of the students and making them academically successful. More recently, the state has given Lauderdale Manors a grade of "D", which means that the school has shown progress but is still performing poorly. As a result of the school's current "D" grade, teachers at Lauderdale Manors are subjected to additional stress due to interventions, such as classroom visits and observations, undertaken by the Florida Department of Education and the Broward County School District. In part because of this stress, and also because the teachers apparently believe that the staff is composed of unfriendly people with negative attitudes, Lauderdale Manors'
personnel turns over at a high rate; in recent years the school has hired six to eight new teachers, on average, each year.
According to the IPAS, the performance indicators (that is, the criteria for evaluating performance in an area or category) for instructional planning are:
Develops lesson plans and selects instructional materials and activities which reflect the districts [sic] curriculum scope and sequence and identify learners' needs.
Identifies and sequences content.
Develops lesson plans which reflect the prerequisites [sic] knowledge, skills, and readiness of students.
Specifies learner objectives and relates these to the instructional activity.
Relates instructional elements such as content, materials, activities, format, and goals to identified student needs.
Specifies the steps, sequence, and pacing of student activities appropriate to their needs and the content area.
The performance indicators for behavior management are:
Establishes and implements specific behavioral and procedural expectations, rules, and consequences.
Demonstrates an awareness of what all students are doing.
Stops inappropriate behavior before it spreads or becomes more serious.
Reinforces positive student behavior.
The performance indicators for records management are:
Maintains an organized, accurate, and up-to-date lesson plan and grade book.
Maintains accurate attendance records.
Maintains a system for recording individual student's knowledge and skills progress in a subject area.
The performance indicators for lesson presentation are":
Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills.
Circulates about the room as students engage in seatwork and assists students as needed.
Emphasizes what is important to remember.
Uses different types of questions to obtain desired learner responses.
Recognizes students' responses to questions and provides feedback.
Asks questions which are clear and requires students to reflect before responding.
Gives clear, brief, and explicit directions and checks for understanding.
Reviews student work and provides timely and specific written or verbal feedback.
Union representative Dwight Hamilton testified that he believed Clemons was being set up for failure based upon her previous successful grievances and the procedural errors committed by the administration in its earlier effort to terminate her. While Hamilton appeared sincerely to hold this belief, no competent substantial evidence was presented to support it. The undersigned finds as fact that Clemons was not
being set up for failure. Rather, she failed to succeed despite the appropriate, good faith efforts that were made to assist her in correcting identified performance deficiencies. See also footnote 5, supra.
This factual finding foreshadows — actually, it follows from — my legal conclusion that unsatisfactory performance as determined pursuant to Section 231.29(3)(d) is not the equivalent of "just cause" under Sections 231.36(a)(1) and 231l.36(6)(a), Florida Statutes.
The term "unsatisfactory performance" will be used hereafter as a shorthand reference to performance that is punctuated by identified deficiencies which the teacher has failed to correct satisfactorily during the 90-day probation period prescribed by Section 231.29(3)(d)2.
Of course, if Sections 231.29(3)(d) and 231.36(6)(a) are separate and distinct, and if Section 231.29 authorizes suspension of an employee without pay, then Clemons would not be entitled to back pay if the Board prevailed under Section 231.29, even if the Board failed, for whatever reason, to carry the day under Section 231.36(6)(a). And if Section 231.36(6)(a) sets forth the procedures applicable to a termination for unsatisfactory performance, then Clemons would have a right to recover back pay only if the Board failed to establish any basis for terminating her employment.
Notice, too, that a charge of just cause, like a notice of termination for unsatisfactory performance, triggers a teacher's right to formal administrative proceedings.
See Chapter 97-310, Laws of Florida.
Had the legislature not exempted holders of existing contracts from termination pursuant to Section 231.29(3)(d), then it might have been necessary, to avoid an unconstitutional impairment of contractual obligations, to construe the statute as either: (1) not allowing termination during the term of a contract, or (2) making unsatisfactory performance a type of just cause for which dismissal could be effected under Section 231.36(6)(a) consistent with the provisions of contracts then in existence. See State v. Mitro, 700 So. 2d 643, 645 (Fla. 1997) ("I]f reasonably possible and consistent with constitutional rights, [courts] should interpret statutes in such a manner as to uphold their constitutionality."). As discussed at length in the text, however, neither of these interpretations comports
with the plain language of the statutes. Fortunately, neither must be adopted in view of the protection afforded those who held contracts on July 1, 1997.
Section 230.33(7)(e) provides:
[The superintendent shall] [b]e responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231, and in addition the superintendent shall have the following duties:
* * *
(e) Suspension and dismissal.–Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the school board and notify the school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him or her and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein.
These emergency provisions have been construed to mean that [w]henever [the superintendent] has good
reason to believe that a member of the
instructional staff or other school employee has been guilty of conduct justifying suspension or dismissal as set forth in Section 231.36(6), Florida Statutes, [he] has the power and duty
. . . to immediately suspend such member of the instructional staff or other school employee. However, . . . the legislature, in granting this power to the superintendent, intended it for use only in emergencies so that the suspended teacher (or other employee) may be immediately removed from his or her position pending school board action. The suspension is
limited in duration to the period extending to and including the day of the next regular or special meeting of the school board, a provision which clearly contemplates that at such meeting it becomes the duty of the school board to take action on the matter.
The notice of suspension served on the suspended teacher (or other employee) should include notification of the charges made against him as well as the date, time, and place of such next regular or special meeting of the school board. The power of the school board to suspend (by virtue of Section 230.23(5)(g), Florida Statutes) is exercised in the manner prescribed in Section 231.36(6), Florida Statutes. This latter statute, which expressly authorizes the school board to suspend any employee without pay, is the only statutory reference to the power to suspend without pay.
Johnson v. School Board of Palm Beach County, 403 So. 2d 520, 523-24 (Fla. 1st DCA 1981). Section 230.33(7)(e) does not authorize the superintendent to suspend an employee without pay; that power is reserved to the school board. Id. at 524; see also Strange v. School Board of Citrus County, 471 So. 2d 90, 92 (Fla. 5th DCA 1985).
In view of the statute's plain language and the construction that the courts have placed upon it, the superintendent's reliance on Section 230.33(7)(3) in his notice to Clemons of intended recommendations for suspension and dismissal is somewhat perplexing, and was potentially misleading, because: (1) there was no apparent emergency (and none was proved at hearing); (2) Clemons was not advised she was being charged with conduct justifying suspension or dismissal as set forth in Section 231.36(6), Florida Statutes (unless she was expected, unreasonably, to infer that unsatisfactory job performance constituted just cause — an incorrect legal conclusion, as we have seen); and (3) the intended suspension was not immediate, brief, and with pay, as Section 230.33(7)(e) requires, but rather was to continue pending dismissal, without pay. Although Clemons does not appear to have been prejudiced by the superintendent's reference to Section 230.33(7)(e), the Board would be well advised to review the procedures by which teachers are being notified of termination proceedings pursuant
to Section 231.29(3)(d), to assure that notices given carefully comply with the particular statutes being implemented.
While the parents' letters in Clemons' personnel file reflect some concern for students' safety, the contents of these letters are hearsay. Therefore, in the absence of corroborating admissible evidence, the letters in themselves cannot form the basis for a finding of fact in this regard. See Section 120.57(1)(c), Florida Statutes.
Assistant Principal Miller offered some brief testimony in passing regarding the reading comprehension test scores of Clemons' students, T. 210, but his remarks were too vague and inconclusive to amount to direct, competent evidence that her class was deprived of minimum educational experience.
The evidence did not establish that Clemons' performance deteriorated during probation in 1999-00. Indeed, she appears to have made some improvement during that time. Therefore, if Clemons were not guilty of incompetency at the beginning of her probation, then she would not have been guilty of incompetency at the end of it, either.
COPIES FURNISHED:
Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A.
101 Northeast Third Avenue Sixth Floor
Fort Lauderdale, Florida 33301
Mark F. Kelly, Esquire Kelly & McKee, P.A.
1718 East Seventh Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Dr. Frank Till, Superintendent Broward County School Board 600 Southeast Third Avenue
Fort Lauderdale, Florida 33301
Honorable Tom Gallagher Commissioner of Education Department of Education
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 21, 2001 | Agency Final Order | |
| Dec. 28, 2000 | Recommended Order | The issues concerned whether a teacher`s employment should be terminated either for failure to correct identified performance deficiencies, pursuant to Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a). |
