STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs.

DIANE JOHNSON,

Respondent.

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) Case No. 04-2138

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RECOMMENDED ORDER

Pursuant to appropriate notice this cause came on for formal proceeding and hearing before P. Michael Ruff duly- designated Administrative Law Judge of the Division of Administrative Hearings in Jacksonville, Florida on January 20, 2005.

APPEARANCES

For Petitioner: Virginia Baker Norton, Esquire

City of Jacksonville Office of General Counsel

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

For Respondent: Diane Johnson, pro se

2746 Stardust Court, No. 44

Jacksonville, Florida 32211 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent should be discharged for alleged violations of the Duval County Teacher Tenure Act, Chapter

21197, Laws of Florida (1991)("Act"), as set forth in the Notice of Termination entered May 6, 2004.

PRELIMINARY STATEMENT

This cause began when a Notice of Termination of Employment was issued by the Superintendent of the Duval County Public Schools on May 6, 2004, alleging that the Respondent

Diane Johnson, had violated the Act in the course of performing her duties as a teacher, namely by being guilty of professional incompetence as provided in subsection (e) of Section 4 of the Act. The Petitioner timely availed herself of the right to a formal proceeding to contest that initial position taken by the Petitioner, Duval County School Board (Board). This formal proceeding and hearing ensued.

The cause came on for hearing as noticed. During the course of the hearing the Petitioner presented the testimony of Patsy Butterbrodt, Jack Shanklin, Joan Pierce, Alan Fletcher, Art Lauzon, Jan Moore, Dr. Mary Jeanette Howle, and

John Williams. The Petitioner also submitted exhibits A through Z as well as AA through EE, all of which exhibits were admitted into evidence. The Respondent testified on her own behalf, but offered no other testimony or exhibits into evidence.

Upon conclusion of the proceeding the parties requested an opportunity to file proposed recommended orders. The Proposed

Recommended Orders were filed on or before January 31, 2005, and have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Educator's Certificate No.

   
   

   537246, licensing her to teach in Florida. That license allows her to teach music for kindergarten through twelfth grades. She has worked for the Duval County School Board as a teacher continuously since 1997 and is a tenured teacher. She has prior teaching experience with the Duval County School Board as well.

2. During the 2001-2002 school year Patsy Butterbrodt, a music teacher for the Petitioner, evaluated the Respondent during Ms. Johnson's assignment as a teacher at William Raines High School (Raines). Ms. Butterbrodt found that the Respondent's teaching was unsatisfactory due to the Respondent's poor organization, her failure to comply with the music curriculum which had been adopted, and overall lack of professionalism. Ms. Butterbrodt, is the principal author of the music curriculum, provided the curriculum to Ms. Johnson and observed her teaching.

3. The Respondent taught at Andrew Jackson High School (Jackson) during the 2002-2003 school year. During that year Principal Jack Shanklin counseled the Respondent concerning her excessive absences and excessive tardiness, as well as her failure to comply with the Petitioner's curriculum standards and

   other requirements. He found that her lesson plans were habitually inadequate and "sketchy" and that she failed to adequately adhere to "standards based teaching" principles and requirements. She was required to make a syllabus for her students and never did so. These problems, coupled with her excessive tardiness and absences resulted in her being placed upon a "Success Plan" designed to improve her performance. She continued to be deficient, however. Her student progress reports were never done on time and she was non-compliant with her Success Plan. After the inauguration of the Success Plan her lesson plans were still inadequate.

4. On December 16, 2002 the Respondent was given a written reprimand for her tardiness and excessive absences and was suspended without pay for five days. At the request of Principal Shanklin, the assistant principal for curriculum,

   Ms. Pierce, observed and evaluated the Respondent. Ms. Pierce concluded that her performance was unsatisfactory. Ms. Pierce reported that the Respondent failed to comply with the curriculum standards or with standards for punctuality. She often simply failed to attend her class. In fact, security became a problem during the Respondent's tenure at Jackson High School. She was often not at her classroom on time, causing the students to be locked out of the room. The Respondent also repetitively failed to enforce tardy procedures for students.

   Ms. Pierce wrote the Success Plan which the Respondent failed to comply with for her tenure at the Jackson High School.

5. Principal Shanklin also asked Allen Fletcher, the assistant principal for curriculum at Jackson to observe and evaluate the Respondent. He evaluated and monitored her compliance with the Success Plan. He established that progress reports for students were not finished on time by the Respondent and that the "scan sheets" regarding student academic progress were habitually late. He established that she was non-compliant with the Success Plan designed to improve her performance (See

   Exhibit M in evidence). At the conclusion of the 2002-2003 school year, Principal Shanklin evaluated Ms. Johnson as being unsatisfactory.

6. Art Lauzon was the principal at Sheffield Elementary School at times pertinent hereto. The Respondent was assigned, at her request, as a music teacher at that school for the 2003- 2004 school year. A Success Plan was developed for the Respondent at Sheffield and principal Lauzon personally administered the plan. During that school year Mr. Lauzon observed the Respondent using inappropriate teaching methods and being excessively tardy and absent on multiple occasions. He had difficulty getting her to attend school reliably. She was ultimately assigned an unsatisfactory rating for that school year. Mr. Lauzon found that her lesson plans were never

   adequate and that parents were sending letters of complaint to him.

7. Dr. Mary Jeanette Howle has a doctorate degree in music education and is nationally board-certified in music education. Dr. Howle established the applicability of the Sunshine State Standards for music education as the basis for the curriculum the Respondent was supposed to employ (as shown by exhibit B in evidence). She observed the Respondent on three occasions. The Respondent did not comply with the properly adopted musical curriculum nor did she employ appropriate teaching standards. Additionally Jan Moore, a teacher with 35 years' experience in the Duval County System and 33 years' experience at Sheffield Elementary was asked to observe the Respondent's teaching.

   Ms. Moore found the Respondent's attendance to be unsatisfactory and that she employed poor teaching methods and practices. She opined that the Respondent was an unsatisfactory teacher, although she was a very talented musical performer and a nice person. Dr. Howle likewise found her to be a warm and loving person in her relationship with students, but a very unsatisfactory teacher. Their opinions are most credible and are accepted as fact. At the conclusion of the 2003-2004 school year at Sheffield Elementary, Ms. Johnson received another unsatisfactory evaluation, as a result of these observation and evaluation efforts.

8. Mr. John Williams has 25 years' experience with the Duval County School Board. He is the director of professional standards and is responsible for employee discipline. He suspended the Respondent for five days without pay due to her repetitive tardiness. He established that the Respondent's tardiness, attendance pattern, and absences were unacceptable. Mr. Williams sponsored Composite Exhibit A which is a two-page compilation of the Respondent's absences. She had missed a total of 356.85 hours at Jackson High School and 259.73 hours at Sheffield Elementary School. These attendance deficiencies are grossly excessive. Mr. Williams also established that there had been many problems in the Respondent's past history with the Duval County School Board concerning her performance, her attendance, and tardiness earlier than the past two years and at least as far back as 1992. Mr. Williams was the custodian of the Respondent's complete file, including her disciplinary record, and also established that the Respondent has been a unsatisfactory teacher for a substantial period of time.

9. The Respondent testified and essentially admitted most of the allegations of the Petitioner. She acknowledged the problems with her teaching and the problems with her tardiness and attendance. She argued, however, that her previous many years' employment experience with the Petitioner should

   ultimately affirm her value as a teacher and justify her retention.

10. Mr. Williams established, particularly on rebuttal, that the problems found above concerning the Respondent's performance as a teacher, and her past history of performance were of long standing as to her attendance, punctuality and adherence to professional standards. Indeed, if she had made only one point lower on her evaluation for the 1991-1992 school year she would have received an unsatisfactory rating for that year as well. In summary, the Petitioner established that the Respondent's performance as a teacher, and her professional competence as a teacher are so deficient as to justify her termination.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.57(1) and 120.569, Fla. Stat. (2004).

12. The overwhelming evidence of record, culminating in the above findings of fact and largely corroborated by the Respondent's own admissions, establishes that she has violated Section 4(e) of the Act, which provides that a teacher may be discharged or demoted for any of the violations listed therein. The conduct charged occurred on a repetitive, continuing pattern of years' standing, and shows serious professional incompetence

on the part of the Respondent. The Petitioner has made good faith attempts at mediation of this dispute, which failed, and it has been established by overwhelming preponderant, competent evidence that the Petitioner's loss of confidence in the Respondent's ability to perform satisfactorily as a teacher is fully justified. Her deficiency is such as to justify her

termination.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Duval County School Board finding that the Respondent, Diane Johnson, should be discharged from her employment with the Duval County School District.

DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2005.

COPIES FURNISHED:

John C. Fryer, Jr., Superintendent Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207-8182

Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Virginia Baker Norton, Esquire City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

Diane Johnson

2746 Stardust Court, No. 44

Jacksonville, Florida 32211

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-002138

Orders for Case No: 04-002138