vs.
DOUKISSA M. LOWE,
Respondent.
) Case No. 03-1595PL
Pursuant to notice, a final hearing was held in this case on August 12, 2003, in Clearwater, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Bruce P. Taylor, Esquire
St. Petersburg, Florida 33731-0131
Herdman & Skallarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Whether Respondent violated Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida
6B-1.006(3)(a) and, if so, what discipline should be imposed.
Petitioner, Jim Horne, as Commissioner of Education, filed a five-count Administrative Complaint against Respondent, Doukissa M. Lowe (Lowe), alleging that she violated Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and
1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a). Lowe requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on May 1, 2003, for assignment to an Administrative Law Judge to conduct the final hearing.
The parties entered into a prehearing stipulation in which they agreed that the facts alleged in paragraphs one and two of the Administrative Complaint are accurate, except that paragraph two should have the phrase "Safety Harbor I.B.I.S. School and" inserted after the word "at."
At the final hearing, Petitioner called the following witnesses: Keith Davis, James Barker, Hester Thuerk, Dawn Coffin, and Diana Lenox. Petitioner's Exhibits 1 through 10, 12, 13 (paragraph 4 only), 14 through 16, and 19 through 28 were admitted in evidence. Petitioner was granted leave to file the deposition of Michael Bessette (Bessette) as a late-filed exhibit. Respondent testified in her own behalf and introduced no exhibits at the final hearing, but was granted leave to file
the deposition of Jacqueline Spoto Bircher (Bircher) as a late- filed exhibit. The deposition of Bircher was filed on
August 25, 2003, and is received in evidence as Respondent's Exhibit 1. The deposition of Bessette was filed on
September 11, 2003, and is received in evidence as Petitioner's Exhibit 29.
The parties agreed to file their proposed recommended orders within ten days of the filing of the transcript or the filing of the depositions of Bessette and Bircher, whichever occurred later.
The Transcript was filed on December 15, 2003. On December 26, 2003, Petitioner filed a Motion for Extension of Time, requesting that the time for filing proposed recommended orders be extended to December 29, 2004. The motion was granted. The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
Lowe holds Florida Educator's Certificate No. 353851, covering the areas of administration/supervision, early childhood education, elementary education, emotionally handicapped, mentally handicapped, specific learning disabilities, gifted, art, reading, general science, biology, and mathematics, which was valid through June 30, 2002.
In 1992, Lowe became employed with the Pinellas County School District as an exceptional student education (ESE) teacher at Safety Harbor I.B.I.S. (Safety Harbor). Lowe's overall performance evaluations from 1992 through the spring of 1997 were deemed to meet expectations. However, on each evaluation it was noted that Lowe had a problem with attendance and punctuality and needed to improve in those areas. In the fall of 1995, Keith Davis, the principal at Safety Harbor, had two conferences with Lowe concerning her attendance and punctuality.
When she began working at Safety Harbor, Lowe was responsible for the care of her mother, who had Alzheimer's. From 1992 through 1996, the majority of Lowe's tardiness and absenteeism related to problems that she was having with the care of her mother. Lowe's mother passed away in 1996. However, in her evaluation in 1997, it was noted that the "area of attendance and punctuality is irregular" and that Lowe needed to "[c]ontinue to identify best practices that when implemented serve to produce a healthy balance with personal/professional life."
Due to a lack of students at Safety Harbor, Lowe was transferred to Coachman Fundamental School (Coachman) in September 1997. When Lowe began teaching at Coachman, she taught approximately 35 students in an inclusion setting, which
means that she went from classroom to classroom and did team teaching with the regular teacher in each classroom. Lowe described her role in the inclusion setting as "more of a
co-teacher, more of an assistant rather than a teacher because they [the regular teachers] would do their presentation." Her first semester at Coachman, Lowe had an intern, who had come with her from Safety Harbor.
In the Spring of 1998, the teacher who was responsible for the individual education plans (IEP) for the gifted students at Coachman resigned. Because Lowe had a flexible schedule, she volunteered to do the 75 IEPs which needed to be done. The IEPs for the gifted students were not as extensive as the ones which Lowe did for her ESE students who were classified as having a specific learning disability (SLD). Her duties for each gifted student consisted of preparing a two-page IEP, notifying the parents and the other school to which the gifted student would be going, and holding an IEP meeting. Her duties for gifted students lasted for one semester.
The education of ESE students is governed by both state and federal laws.1 In 1997, significant changes were made in the federal law concerning documentation required for education of ESE students. In 1998, the state developed a matrix which had to be done for each ESE student. The matrix contained information which determined the amount of funding for each ESE
student. The ESE teachers in the Pinellas County Public Schools were given training on the changes.
In September 1998, the principal of Coachman,
Lawrence G. Goodbread (Goodbread), reviewed Lowe's SLD files and found that nine of 14 seventh grade and eight of ten eighth grade folders were out of compliance due to outdated IEPs.
Goodbread discussed the issue with Lowe and offered her clerical assistance, which she declined. Two weeks later he reviewed the SLD files again and found some questionable signatures and that the signature page for the Notification of Meeting form was missing in most cases. He reported his findings to Jan Rouse, who was the director of the Pinellas County Middles Schools and ESE.
Goodbread asked Hester Thuerk (Thuerk), a staffing specialist for the ESE program, to review Lowe's SLD files. On September 29, 1998, Thuerk reviewed 11 files and found numerous errors and omissions. She reported her findings to Goodbread.
By memorandum dated November 12, 1998, Pam Connolly (Connolly), supervisor of ESE, advised Jim Barker (Barker), Administrator of the Office of Professional Standards, of her findings when she reviewed folders of the SLD students, which were to be maintained by Lowe. Connolly found two specific repeat problems: failure to include appropriate documentation on re-evaluations; and completion of the majority of funding
matrices in the same manner when each student is to be rated according to individual needs. Additionally, she found other errors, such as failing to address each item on the IEP, incorrectly marking items on IEPs, and keeping original IEPs in the folder rather than copies. Of the 23 files reviewed, 21 files contained errors.
On November 20, 1998, a meeting was held with Lowe to discuss the problems with the SLD folders. Among those in attendance were Goodbread, Barker, and Connolly. Lowe acknowledged that she had some errors and would try to correct them in the future.
Thuerk was assigned to assist Lowe in updating the IEPs for which she was responsible. Lowe and Thuerk met on February 10, 1999, and completed a handwritten IEP of one of Lowe's students. Lowe was to complete the computer-generated IEP for the student and then proceed to complete four other IEPs before their next meeting on February 24, 1998. In addition, Lowe was to have her computer ready for any changes that would need to be made to the draft IEPs and get from her data prep person a listing of the due dates for re-evaluations. When Thuerk and Lowe met on February 24, none of the assignments had been done.
By memorandum dated February 25, 1998, Thuerk advised Lowe that she needed to follow the agreed-on schedule. Another
meeting was scheduled for March 3, 1998, and Lowe was advised that Thuerk would be available to meet on March 17, 1998, if Lowe needed additional assistance.
Lowe and Thuerk met on March 11, 1998, and they prepared an IEP. Thuerk thought that the meeting had gone well and that Lowe was becoming more comfortable with IEPs and was understanding what was needed to write up the Present Level of Performance section of the IEPs.
In the spring of 1998, Lowe started law school in Orlando, Florida, which is approximately two hours away from Tarpon Springs. Additionally, Lowe had a paper route in the morning before school.
At some time during the 1999-2000 school year, Coachman began using a self-contained model of teaching. This model required Lowe to stay in her own classroom. Lowe had between 22 and 24 regular students. In addition, she had 12 students who were in mainstream classes, but for whom Lowe was responsible for completing their IEPs.
In September 1999, Dawn Coffin (Coffin), assistant principal, took over the responsibilities of Goodbread, who was experiencing health problems. Coffin advised Lowe on
September 9, 1999, that 14 of the 36 folders for Lowe's SLD students had IEPs which were out of date.
On October 25, 1999, Diana Lenox (Lenox), supervisor for SLD, reviewed 11 SLD staffing files that had been flagged as possibly being out of compliance. Lenox found errors in each of the staffing files and sent Lowe a memorandum detailing the errors that she found. Lowe advised Lenox some of the errors occurred because she was having difficulty getting the information from the original files, which were kept under lock. Lenox suggested that Lowe get her staffing clerk to make copies of the original files so that Lowe would have the necessary information any time that she needed it.
On November 29, 1999, Thuerk conducted a mini-audit on some of Lowe's folders. None of the folders reviewed were in compliance. Because of the non-compliance issues, Thuerk was asked to attend future re-evaluation meetings.
On December 6, 1999, Lowe was scheduled to have
30-minute re-evaluation meetings on three students beginning at 8:00 a.m. On the day of the meetings, Lowe arrived at work at 7:55 a.m. Coffin called Lowe on the intercom and reminded Lowe of the meeting. At 8:10 a.m., Coffin called Lowe to come to the meeting and again at 8:20 a.m. Lowe got to the meeting at
8:25 a.m., with a plastic box full of forms. She had no completed paperwork, no goals, no objectives, and no planning forms. Thuerk had to conduct the re-evaluation scheduled for 8:30 a.m. because of Lowe's tardiness and failure to have
necessary paperwork completed. Thuerk found that for the second re-evaluation meeting, paperwork was missing from the file.
When questioned about the missing paperwork, Lowe responded that she did not know where it was. For the third re-evaluation meeting, Lowe was not prepared and paperwork was missing. Lowe stated that the paperwork had been completed, but she did not know where it was.
By memorandum dated December 6, 1999, Coffin recounted what happened at the re-evaluation meetings and told Lowe that her behavior was unprofessional and embarrassing. Coffin explained that inaccuracies in the matrices and IEPs could result in a loss of funding. Coffin urged Lowe to get professional help regarding her personal problems and to allow Thuerk and Lennox to help her with the paperwork. Lowe was advised that she needed to take the necessary steps to get the folders in order.
On January 19, 2000, Bessette, administrator of the Office of Professional Standards, met with Lowe, Coffin, and a union representative to discuss the problems Lowe was having getting her ESE files in compliance.
In order to help Lowe get her paperwork up to date, she was given five temporary-duty-elsewhere (TDE) days from January 24 through 28, 2000, so that she could concentrate on her paperwork. This meant that Lowe would be relieved of
teaching duties, a substitute would be hired to teach classes, and she would have nothing to do but work on her files for
33 students. Except for one day during this period when Lowe had to attend a workshop, she had time to work on the files. Lowe was advised that after January 28, an audit would be done on the 33 folders. Thuerk conducted the audit on February 8 and found errors in 26 of the files.
On February 23, 2000, Lowe was given a written reprimand for her continued failure to bring her staffing folders in compliance. In the letter of reprimand, Bessette advised that it was imperative that she take all necessary steps to update the files. Bessette gave the following order: "I am directing you to complete all ESE paperwork in compliance with district procedures and timelines."
On April 10, 2000, another audit was done on Lowe's ESE files. Errors were found in 22 files. By memorandum dated April 10, 2000, Coffin advised Lowe of the errors found. Coffin also discussed in the memorandum the issue of Lowe's tardiness and absenteeism. A substitute was filling in for Lowe at least once a week, and Coffin had to "scramble several times a week to make sure [Lowe's] class [was] covered until [Lowe] arrived on campus." During the 1999-2000 school year, Lowe was absent 24 times.
Lowe had scheduled a re-evaluation meeting with a parent for May 18, 2000, at 8:30 a.m., which is 15 minutes before classes start. Lowe did not arrive for the meeting until 8:45 a.m., and had nothing prepared for the meeting. She left her classes in care of a teacher's assistant until 11:00 a.m. Coffin advised Lowe by memorandum dated May 19, 2000, that meetings should be scheduled before or after classes or during a planning period, but not during classroom instruction time.
On May 23, 2000, Lowe was not in her classroom when her students arrived. A teacher's assistant covered her class for her. Lowe did not get to school until 9:45 a.m., stating that she was at Clearwater High School writing an IEP. Lowe should not have been away from her classes to write an IEP. The normal hours for teachers were 7:50 a.m. to 3:20 p.m., and the student hours were from 8:45 a.m. to 3:05 p.m. Coffin again advised Lowe by memorandum dated May 23, 2000, that such behavior was not acceptable.
On May 31, 2000, Bessette met with Lowe, who advised him that by the end of the school year that all of her files would be updated. On June 7, 2000, Lenox reviewed the ESE files prepared by Lowe and found errors in 29 of the 33 files.
At the end of the 1999-2000 school year, Lowe was to prepare the case manager files for her eighth-grade students, so that the files could be delivered to the high schools which the
students would be attending the next school year. She failed to turn in her grade book and several pieces of software. On
June 9, 2000, she told Bessette that she would come back to school the following week to work on the files. By 1:20 p.m., on June 13, 2000, Lowe had not returned to work on the files.
The eighth-grade files were to be delivered to the high schools by the data prep clerk, but since Lowe did not have the files ready, Lowe took the responsibility to deliver the files to the high school. She did not deliver the files to the high school, and by August 21, 2000, the staff at the high schools were calling Coffin asking for the files.
In July 2000, Lowe was scheduled to attend classroom learning systems training. Lowe had specifically asked to be included in the training. Lowe did not go to the training, which took a valuable training spot that could have been used by another teacher. Additionally, Lowe had asked for additional duty on August 15 and 16, 2000, but she failed to appear on those days.
On September 19, 2000, Thuerk, Coffin, Lenox, and Nancy Fry, a staffing specialist, reviewed the ESE files for the seventh and eighth grades. Of the files reviewed 20 contained errors. Four of the files were missing. Lowe had made little progress in keeping her ESE paperwork in compliance.
On October 17, 2000, Bessette wrote a memorandum to the superintendent of the Pinellas County Schools recommending that Lowe be dismissed. Lowe was suspended without pay. She resigned her position with the Pinellas County Schools on January 26, 2001. By letter dated January 21, 2001, Bircher, attorney for Pinellas County Schools, advised Lowe's counsel that in exchange for Lowe's resignation that Lowe would be eligible for rehire. Bircher noted "that positive evaluations from teaching elsewhere would certainly assist [Lowe] in seeking employment again with the District."
An IEP is the document that sets forth the instruction that is to be provided to an ESE student. An IEP is prepared to ensure that services are provided appropriately to an ESE student. An IEP is done annually for each ESE student. Over the years, the paperwork related to the education of ESE students has grown significantly. While the task of maintaining ESE files in an accurate and timely manner may be onerous, it was part of Lowe's responsibilities as an ESE teacher.
Documentation for ESE students, including IEPs, is subject to both state and federal audits. Failure to maintain files for ESE students appropriately can result in a loss of funding. The Pinellas County Schools did lose between eight and
12 million dollars for ESE students, much of which can be attributed to record keeping errors. Although the evidence did
not demonstrate a loss of funding that was directly attributable to Lowe's failure to maintain adequate and timely records, the overall loss is significant to demonstrate the importance of properly maintaining ESE records.
When Lowe was in the classroom, she did an excellent job of teaching. However, her absenteeism and tardiness affected the education of her students. If Lowe was not in the classroom, the students would have to be taught by a substitute teacher or be left in the charge of a teacher's assistant. A substitute teacher is not going to provide the quality of instruction that Lowe could have provided. A teacher's assistant is not a teacher; thus, leaving the students with a teacher's assistant could not result in effective teaching. Teachers are to set examples for their students. Lowe's failure to come to work or to come to work late was not conducive to instilling punctuality or the importance of being responsible to her students.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes (2003).
Petitioner has the burden to prove by clear and convincing evidence that Lowe has committed the violations
alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner has alleged that Lowe violated
Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and
1012.795(1)(i), Florida Statutes (2003),2 which provide:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; . . . or may impose any other penalty provided by law, provided it can be shown that the person:
* * *
Has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school.
Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Petitioner has alleged that Lowe has violated Florida Administrative Code Rule 6B-1.006(3)(a), which provides that the professional educator "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/to the student's mental and/or physical health or safety."
Petitioner has established by clear and convincing evidence that Lowe is incompetent to perform the documentation duties that are required of an ESE teacher. Lowe lacks the organizational and time management skills that are necessary to competently maintain ESE student files. She was provided training on how to prepare and maintain the files. When reviews were made of Lowe's files, she was given detailed information on the errors that were found. She was given at least four TDE days in which her only responsibility was to work on the files, while others took up her classroom responsibilities. Over a two-year period, Lowe was unable to perform the documentation duties that are required of an ESE teacher.
Part of a teacher's duties include coming to work and coming to work on time. Lowe had a long history of attendance and punctuality problems beginning in 1992. Much of her
tardiness and absenteeism up to the death of her mother in November 1996 was attributable to Lowe's responsibility of caring for her ill parent. However, after the death of her mother, Lowe continued to have problems coming to work and being punctual. During the school year 1999-2000, Lowe was absent 24 days and tardy on numerous occasions.
The latest evaluation of Lowe that was submitted in evidence was done in May 1997. The evaluation stated that Lowe had met all the district and state expectations. Lowe argues that because she received evaluations, which on the whole were satisfactory, she cannot be deemed incompetent, citing Walker v. Turlington, 516 So. 2d 1123 (Fla. 3rd DCA 1987). Unlike the evaluations in Walker, Lowe's evaluations between 1993 and 1997 show that in the area of attendance and punctuality, Lowe's performance either did not meet expectations or needed improvement. No evaluations after 1997 were submitted in evidence, and the evidence quite clearly indicates that her performance was not satisfactory after she began teaching at Coachman in September 1997, as shown by Lowe's written reprimand and suspension without pay.
Lowe argues that Florida Administrative Code
Rule 6B-4.009(1) prohibits a finding of incompetency because no testimony was presented from members of a panel of experts appointed by the Commissioner of Education. Florida
Administrative Code Rule 6B-4.009(1) pertains to the dismissal or suspension of a teacher by a school district and not to the discipline of a teaching certificate. However, the rule is instructive on what constitutes incompetency. Florida Administrative Code Rule 6B-4.009(1) provides:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . .
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.
Lowe repeatedly failed to perform her record-keeping duties which were prescribed by Section 231.09, Florida Statutes (1997-2000). Thus, Lowe's failure to maintain the ESE files amounted to incompetency.
Petitioner has conceded in its Proposed Recommended Order, and it is found, that Petitioner failed to establish that
Lowe was guilty of gross immorality or an act involving moral turpitude.
Petitioner has established by clear and convincing evidence that Lowe violated Subsection 1021.795(1)(f), Florida Statutes (2003). Her failure to maintain the ESE files accurately and timely resulted in time being taken away from her classroom teaching. For example, when she took four TDE days to complete paperwork, a substitute had to be hired to teach Lowe's classes. When Lowe scheduled re-evaluation meetings with parents during classroom hours and then came to the meetings tardy and unprepared, someone else had to cover for her in the classroom, which generally was the teacher's assistant. Substitute teachers and teacher's assistants cannot take the place of a regular teacher and provide the same quality of teaching as a regular teacher.
Lowe's tardiness and excessive absenteeism also reduced her effectiveness as a teacher. When she was late to class, someone had to cover for her; and when she did not come to work, a substitute teacher had to take her place. Additionally, Lowe's tardiness and absenteeism did not set a good example for her students, who were also expected to come to school and be on time.
Petitioner established by clear and convincing evidence that Lowe violated Florida Administrative Code
Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect students from conditions harmful to learning and, thus, violated Subsection 1012.795(1)(i), Florida Statutes (2003).
Lowe's failure to come to work and to come to work on time created conditions harmful to learning because Lowe was not in her classroom to teach the children. The times that Lowe was away from her classroom teaching, due to her inability to prepare the student's files, also created a condition harmful to learning. There are times when it is unavoidable to be tardy and/or absent, but Lowe's continued pattern over the years demonstrated that she just could not get to work on time and let her personal life interfere with her teaching responsibilities.
Lowe's failure to maintain files, which could pass an audit also created a condition that could be harmful to learning. Part of the funding for ESE students depends on accurate and timely record-keeping. By failing to properly document the education of ESE students, Lowe placed the school district in jeopardy of losing funding. It would greatly reduce the quality of the education to be provided to ESE students if funding was not available.
RECOMMENDED that a final order be entered finding Doukissa M. Lowe not guilty of a violation of Subsection 1012.795(1)(c), Florida Statutes (2003); finding Doukissa M. Lowe guilty of violating Subsections 1012.795(1)(b), (f), and (g), Florida Statutes (2003), and Florida Administrative Code
Rule 6B-1.006(3)(a); suspending her teaching certificate for six months, retroactively from the last date that she worked as a teacher; prohibiting her from teaching ESE classes for two years from the date of the final order; and placing her on probation for five years.
DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004.
1/ The education of ESE students is provided pursuant to the Individual with Educational Disabilities Act, 20 United States Code, Section 1400 et seq.; however the federal law does not
include gifted students within the definition of exceptional students. Section 1003.57, Florida Statutes (2003), governs the education of ESE students, including gifted students.
2/ The same grounds for discipline by the Education Practices Commission were codified in Section 231.28, Florida Statutes (1997-99), and Section 231.2615, Florida Statutes (2000).
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Bruce P. Taylor, Esquire Post Office Box 131
St. Petersburg, Florida 33731-0131
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
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.
