STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 04-2335
)
JOAQUIN R. GOMEZ, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case on September 14, 2004, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
For Respondent: Joaquin R. Gomez, pro se
8132 Southwest 83rd Street Miami, Florida 33143
STATEMENT OF THE ISSUE
Whether Respondent failed to correct noted performance deficiencies during his probationary period and therefore should be terminated from his employment with the Miami-Dade County School Board pursuant to Section 1012.34, Florida Statutes.
PRELIMINARY STATEMENT
By letter dated June 21, 2004, the Superintendent of Miami- Dade County Public Schools (Superintendent) advised Respondent that he was recommending that the School Board of Miami-Dade County (School Board), at its meeting on July 14, 2004, take action to terminate Respondent's employment as a social studies teacher on the ground that Respondent had "failed to correct noted performance deficiencies during [his] 90-Calendar Day Performance Probation." Respondent responded by sending the Superintendent a letter, dated June 30, 2004, "request[ing] a hearing regarding [the Superintendent's] recommendation." The matter was referred to DOAH on July 6, 2004.
To accommodate the parties, the final hearing in this case was scheduled for September 14 and 15, 2004.1 As noted above, the hearing commenced and concluded on September 14, 2004. Five witnesses testified at the hearing: Jeffrey Hernandez, Michelle Judge, Dr. Robert Valenzuela, Reinaldo Benitez, and Respondent. In addition, 27 exhibits (Petitioner's Exhibits 1 through 16,
and Respondent's Exhibits 1 through 7 and 9 through 12) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (14 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
The hearing transcript (consisting of one volume) was filed with DOAH on October 6, 2004.
The School Board filed its Proposed Recommended Order on October 18, 2004. To date, Respondent has not filed any post-
hearing submittal.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The School Board is responsible for the operation, control, and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida, including M. A. Milam K-8 Center (Milam).
For approximately the past 13 years, Dr. Robert Valenzuela has been the principal of Milam.
Jeffrey Hernandez was an assistant principal at Milam during the 2001-2002, 2002-2003, and 2003-2004 school years.
Michelle Judge is in her second year as an assistant principal at Milam.
5. During the 2001-2002, 2002-2003, and 2003-2004 school years, Respondent was a middle school social studies teacher at Milam.
During the 2003-2004 school year, he taught advanced classes comprised of gifted students.
Of the four middle school social studies teachers at Milam during the 2003-2004 school year, Respondent was the only one assigned to teach such advanced classes.
Teaching gifted students was a coveted assignment.
At the beginning of the 2003-2004 school year, when teaching assignments were made at Milam, it appeared, based upon Respondent's teaching record, that Respondent "was competent to teach the courses" he was assigned.
Teachers at Milam, like all teachers employed by the School Board, are now, and have been at all times material to the instant case, evaluated in accordance with the School Board's Professional Assessment and Comprehensive Evaluation System (PACES).2
PACES is described in the PACES Teaching and Learning Professional Growth Manual (Manual).
The Manual's preface contains, among other things, the following information:
. . . . The PACES is a comprehensive, learner-centered, classroom-based assessment system that is designed to provide M-DCPS
teachers, administrators, and other educators with information useful for improving teaching and learning in classrooms and schools. . . .
The organization of this manual includes seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators. In addition, it contains extensive explanations and examples of the indicators to clarify their meanings and can be used by teachers and other instructional personnel as they develop professional growth plans and activities. A sub-set of the required indicators is used to make annual evaluation decisions. The teaching and learning indicators in the PACES are not simple statements of particular teaching behaviors. Rather, they are statements that describe observable elements of quality teaching and learning that are assessed within the unique context of each classroom.
The PACES Teaching and Learning Professional Growth Manual does not reflect a single philosophy or model of teaching and learning. It has been designed to accommodate a wide variety of teaching methods and learning tasks. The manual appreciates teachers as professionals.
Thus, this manual does not tell teachers how they should teach.
* * * Appropriate professional growth activities
for teachers may be addressed by using PACES
Teaching and Learning Indicators including those that are not required for annual evaluation. All teachers are evaluated with the M-DCPS Teaching and Learning Professional Growth Manual using only the Required Indicators.
* * *
Throughout this manual, some Teaching and Learning Indicators are in bold print and lined above and below the text. These are required indicators for evaluation by the principal or designated administrator. The decision rule is also in bold type and states that a post-observation meeting must occur between the teacher and the evaluator for the purpose of designating professional growth activities. . . .
* * *
The "seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators" are further explained in the following introductory passage in the Manual:
This manual is organized by seven Domains as follows:
Planning for Teaching and Learning
Managing the Learning Environment
Teacher/Learner Relationships
Enhancing and Enabling Learning
Enabling Thinking
Classroom-Based Assessments of Learning
Professional Responsibilities
Domains I-VI are further defined by sets of teaching and learning Components and their Indicators. Indicators are the fundamental units of observation that are used to make professional judgments about the quality of teaching and learning. Domain VII includes indicators of ongoing compliance with rules, policies, and procedures that are used as
part of the annual evaluation of M-DCPS teachers.
Required Indicators for evaluation are designated throughout the manual in bold print. These Required Indicators represent the fundamental level of teaching practice to be demonstrated by all instructional personnel, and are aligned with the Florida Department of Education Educator Accomplished and Professional
Practices. . . .
There are 44 "Required Indicators."
A teacher's performance is considered unsatisfactory if it fails to meet one or more of these "Required Indicators."
At the beginning of each school year, Milam's administrators review the features of PACES with the teachers at the school.
Such a review was conducted at the outset of the 2003- 2004 school year.
At all times material to the instant case, Principal Valenzuela and Assistant Principals Hernandez and Judge were trained in PACES and authorized to observe and evaluate teachers at Milam. They each conducted at least one observation/evaluation of Respondent during the 2003-2004 school year.
Assistant Principal Hernandez was the first of the three to observe and evaluate Respondent during the 2003-2004 school year.
Assistant Principal Hernandez's initial observation of Respondent was conducted on November 5, 2003.
As required by PACES, prior to this November 5, 2003, observation, Respondent met with Assistant Principal Hernandez to discuss the lesson plan Respondent had prepared for the class that Assistant Principal Hernandez was going to observe.
Assistant Principal Hernandez "rejected" the lesson plan.
Erroneously believing that Assistant Principal Hernandez had "rejected" the lesson plan because of its format, Respondent went to Principal Valenzuela and complained that, under the collective bargaining agreement, Assistant Principal Hernandez had the authority merely to suggest, but not to require, that Respondent's lesson plans follow a particular format. Principal Valenzuela acknowledged that Respondent was correct and recommended that Respondent go back to Assistant Principal Hernandez and revisit the matter with him. When Respondent did so, Assistant Principal Hernandez attempted to make clear to Respondent that his concern was with the content, not the format, of the lesson plan.
Respondent's performance during the observation on November 5, 2003, was unsatisfactory.
Respondent had a post-observation meeting with Assistant Principal Hernandez on November 6, 2003.
That same day, Assistant Principal Hernandez prepared the following memorandum, which accurately summarized what had occurred at the meeting:
On Thursday, November 6, 2003, at 2:30 p.m., a PACES Post-Observation Meeting was held with you in my office. During our meeting, I informed you that you had not met standards for II.D, II.E, IV.D, V.A, V.B., V.C, VI.B, and VI.C. Therefore, I will be conducting a follow-up observation within the next three weeks. Furthermore, I informed you that you had the opportunity to work with a Professional Growth Team to assist you with the indicators identified as not meeting standards. You declined having a Professional Growth Team assigned to you at this time.
If you have any question or need further information, please do not hesitate to see me.
Respondent was given the memorandum on November 10, 2003, at which time he signed it, thereby acknowledging that he received it and that he "continu[ed] to decline having a Professional Growth Team assigned to [him]."
Inasmuch as this was Respondent's initial evaluation of the school year, pursuant to PACES, it was "not of record" and he was free to "to decline having a Professional Growth Team assigned to [him]."
In addition to being given the "opportunity to work with a Professional Growth Team," Respondent was also advised to review the Manual, observe other teachers in the classroom,3 and
go to the School Board website and view PACES video "vignettes" showing teachers modeling classroom performance meeting each of the "Required Indicators."
Assistant Principal Hernandez conducted a follow-up observation of Respondent on January 30, 2004, while Respondent was teaching a social studies lesson "ha[ving] to do with discrimination" to a class of gifted sixth graders.
Respondent's performance during this observation on January 30, 2004, was unsatisfactory.
On February 5, 2004, Principal Valenzuela and Assistant Principal Hernandez held a conference-for-the-record with Respondent to discuss Respondent's unsatisfactory performance during the January 30, 2004, observation.
Following this conference-for-the record, Principal Valenzuela sent Respondent the following memorandum,4 dated February 5, 2004, which accurately summarized what had occurred at the conference-for-the record:
A conference-for-the-record was held with you in my office on Thursday, February 5, 2004, at 9:35 a.m. Present at the conference were Jeffrey J. Hernandez, Assistant Principal and this administrator. You were provided the option for union representation, but you declined.
The purpose of this conference is to recount the procedures relating to the 90-Day [C]alendar Day Performance Probation. An initial observation, (not of record) was conducted on November 5, 2003, and revealed
below standard indicators. These indicators were reviewed with you on November 6, 2003, in a post observation meeting. At that meeting, you were offered the assistance of a Professional Growth Team (PGT) and you declined (see attached memorandum).
Further, you were advised that you would be formally observed at a later date.
Subsequent to the observation which was not of record, a formal observation was conducted on January 30, 2004, which identified below standard indicators in teaching and learning in Domain(s)/Component(s) II.D.1, IV.A.3, IV.A.5, IV.B.3, IV.C.2, IV.D.1, V.A.1,
V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, VI.B.3,
VI.C.4. At this scheduled conference-for- the-record, your input was solicited, resulting in the attached Professional Improvement Plan (PIP). It is your professional responsibility to complete the requirements of the PIP within the note[d] timelines.
You were reminded that the PGT is herein formally assigned to assist you during the 90-Calendar Day Performance Probation. The probation period commences the day after receipt of the written PIP as evidenced by your signature and the date.
Subsequent to the conclusion of the 90- Calendar Day Performance Probation, a determination will be made as to whether performance deficiencies have been satisfactorily corrected within the probation period. A recommendation by the principal will be made to the Superintendent that may lead to termination of your employment contract as stipulated in FS 231.29.[5]
You were apprised of your right to clarify or explain any information recorded in this conference by this summary.
Respondent signed the memorandum, acknowledging that he received it, on February 9, 2004.
Respondent also signed the Professional Improvement Plan attached to the memorandum (First PIP) on February 9, 2004, indicating that he had "seen and received the document" on that date. Therefore, his 90-calendar day probationary period began on February 10, 2004.
Prepared by Assistant Principal Hernandez, the First PIP was accurately noted the deficiencies he had found during his January 30, 2004, observation of Respondent,6 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows:
Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning.
Component/Indicator II.D.1 Changes in teaching and learning activities are sufficient to engage learners.
Deficiency: Changes in teaching and learning activities are insufficient to engage learners. This deficiency is evidenced by:
Learner engagement was not promoted through a variety of means initiated by the teacher. The learners were sitting one per table.
The learners were reading a worksheet and answering low recall questions throughout the lesson. As a result, the learners became disinterested and bored. This was evidenced by the girl sitting on the second table on the left playing with her nails,
the boy sitting on the first table next to the teacher's desk hitting the table with
[a] pencil and two boy[s] sitting on the right of the teacher's desk staring at the teacher with the[ir] arm[s] holding their head[s] on the desk.
Improvement Plan: Read for understanding the explanations and examples for indicator II.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and The Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 12, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.A.3 Specific learning outcomes are clearly understood by learners.
Deficiency: Specific learning outcomes are not clearly understood by learners. This deficiency is evidenced by:
The learners were not provided with the lesson objective verbally nor written. The interactions between the teacher and the learners varied in topic as they arose. The focus of the lesson did not follow the established objective. Since the teacher did not specify what the learning outcomes were, students did not know what was expected of them.
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team
and submit the summary to the administrator by February 12, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.A.5 The purpose or importance of learning tasks is clear to learners.
Deficiency: The purpose or importance of learning tasks is not clear to learners. This deficiency is evidence by:
The learners did not have the opportunity to make any reference to the relevance of the learning activities to real life. At no time were the learners given the purpose or importance of activities the teacher asked them to do.
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.5; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 19, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context.
Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by:
The learners were not provided the opportunity to achieve the complexity of learning context relevant to learning outcomes, enhancing learning, and broadening learner understandings. The learners were not involved in activities such as cooperative learning, student interactions, nor other techniques that would avoid the learner to become disinterested. The learners basically read a worksheet silently and then the teacher would ask low level recall questions.
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 20, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.3 Teaching methods and learning tasks are implemented at an appropriate pace.
Deficiency: Teaching methods and learning tasks are not implemented at an appropriate pace. This deficiency is evidenced by:
The learners were involved in learning activities that were passive at all times throughout the lesson. The passive learning resulted in learners becoming bored. The learners were sitting down, listening to the teacher lecture on the worksheet and answering low level questions.
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.3; Resource: The PACES Teaching and
Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners.
Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by:
The learners were not effectively provided learning material nor aids that would accommodate their range of learner abilities and needs nor material that contributed to a better understanding of the lesson. The teaching aids only consisted of the worksheet students were reading throughout the lesson.
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.C.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level to integrate knowledge and understandings.
Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by:
All learners did the same assignment with no variation to accommodate differences in learning styles. The learners were not given the opportunity to extend their activities from simple to complex levels to reflect the range of developmental and ability characteristics of learners. The learners read from a worksheet and answered lower level questions. For example, "What is discrimination?"
Improvement Plan: Read for understanding the explanation and examples for Indicator IV.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 27, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.A.1 Learners are actively engaged and/or involved in developing associations.
Deficiency: Learners are not actively engaged and/or involved in developing associations. This deficiency is evidenced by:
The learners did not have the opportunity to link new associations to prior learning experiences so the objectives were meaningful to learners through transferring knowledge. The learners did not have the opportunity to retrieve prior learning knowledge and initiate learning. This was a result of the entire lesson consisting of only reading a worksheet silently and answering low level recall questions.
Improvement Plan: Read for understanding the explanation and examples for Indicator V.A.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences.
Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by:
The learners did not actively share examples in the large group discussion to sufficiently enable their development of thinking abilities nor were learners asked to generate examples from their experiences in writing.
Improvement Plan: Read for understanding the explanation and examples for Indicator
V.A.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.B.1 A variety of questions that enable thinking are asked and/or solicited.
Deficiency: A variety of questions that enable thinking are not asked and/or solicited. This deficiency is evidenced by:
The learners were not asked questions that stimulated higher order thinking abilities nor [was there] variety in questioning [that was] conducted as tasks were performed. The teacher utilized questions in a recall format as the students read worksheets.
Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.B.2 Wait time is used as appropriate to enhance development of thinking skills.
Deficiency: Wait time is not used as appropriate to enhance development of thinking skills. This deficiency is evidenced by:
The learners were directed questions to answer verbally prior to asking the question. Therefore, learners were not allowed to ponder answers to questions, and to then respond. The teacher directed questions to individual learners from the beginning.
Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 1, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving.
Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by:
The learners were not involved in problems that needed solutions, enhanced reflective thinking nor linked causes to effects. The entire lesson involved learners reading a
worksheet silently and learners responding to recall questions.
Improvement Plan: Read for understanding the explanation and examples for Indicator V.C.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004.
Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning.
Component/Indicator VI.B.1 A range of learner responses is solicited as appropriate to assess various cognitive and/or performance tasks.
Deficiency: A range of learner responses is not solicited as appropriate to assess various cognitive and/or performance tasks. This deficiency is evidenced by:
The learners were not assessed informally throughout the lesson for the teacher to acquire information about the learner's progress toward understanding objectives.
Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004.
Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the
lesson is an important element of effective teaching and learning.
Component/Indicator VI.B.3 Adjustments in teaching and learning activities are made as needed **OR** no adjustments are necessary.
Deficiency. Adjustments in teaching and learning activities are not made as needed. This deficiency is evidenced by:
The learners were not provided a variety of learning tasks to avoid learner disinterest. The teacher did not change the difficulty level of content throughout the lesson. The entire lesson consisted of learners reading a worksheet and answering low level recall questions.
Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004.
Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning.
Component/Indicator VI.C.4 Learners receive specific feedback when learning tasks and/or learning outcomes are completed.
Deficiency: Learners do not receive specific feedback when learning tasks and/or learning outcomes are completed. This deficiency is evidenced by:
The learners were not provided specific feedback that would allow them to monitor their own completion of tasks and
accomplishments of learning outcomes. When the learners would answer questions correctly or incorrectly, the teacher only responded with "OK, no, alright."
Improvement Plan: Read for understanding the explanation and examples for Indicator VI.C.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004.
Under PACES, a teacher placed on probation must work with a professional growth team consisting of two members, one chosen by the teacher and the other selected by the principal.
Daniel Atlas, the chairman of Milam's social studies department, and Lori Weiss were the two members of Respondent's professional growth team. Principal Valenzuela selected
Mr. Atlas. Respondent chose Ms. Weiss.
Both Mr. Atlas and Ms. Weiss had been trained in PACES and had been on professional growth teams before.
During Respondent's 90-calendar day probationary period, Mr. Atlas and Ms. Weiss attempted to help Respondent correct his performance deficiencies.7
Respondent timely completed all of the activities prescribed in the First PIP.
Respondent was next formally observed on March 11, 2004, while he was teaching a civics lesson to a class of gifted seventh graders.
Assistant Principal Judge conducted this March 11, 2004, observation.
Respondent's performance during the observation was unsatisfactory.
Principal Valenzuela and Assistant Principal Judge met with Respondent on March 19, 2004, to discuss Respondent's unsatisfactory performance during the March 11, 2004, observation and to review the Professional Improvement Plan Assistant Principal Judge had prepared for Respondent following the observation (Second PIP).
At this March 19, 2004, meeting, Respondent signed the Second PIP, indicating that he had "seen and received the document" on that date.
The Second PIP accurately noted the deficiencies Assistant Principal Judge had found during her March 11, 2004, observation of Respondent8 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows:
Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning.
Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities.
Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by:
The objective of the lesson was to discuss nominations, candidates, and campaign tools during an election. Learners were digressed from the objective when the teacher read an article about the war and did not make any connection to the purpose of the election.
Upon the teacher finishing the reading, the learners began asking questions since confusion arose. The teacher stated, "Well, let's leave this discussion about the article for now because it is off topic." The learning was also interrupted when a learner arrived late to class and the teacher wasted learning time to publicly reprimand and inquire about the student's whereabouts. This resulted in the other learners becoming off-task by involving themselves in a [] conversation.
Improvement Plan: Gain a better understanding through direct classroom observation of beginning learning in a timely manner without inefficient delays in organizational or teaching and learning activities; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator II.A.3; Timeline: Discuss and identify with the administrator techniques and strategies to avoid inefficient delays in organizational or teaching and learning activities. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by March 26, 2004.
Domain II Managing the Learning Environment. Effective classroom and
behavior management are necessary for effective teaching and learning.
Component/Indicator II.E.1 Expectations about acceptable behavior are clear to learners and are consistently maintained throughout the lesson.
Deficiency: Expectations about acceptable behavior are not clear to learners and are not consistently maintained throughout the lesson. This deficiency is evidenced by:
The behavioral expectations of students are not clearly understood by the learners.
When the teacher began to publicly inquire about the whereabouts of the tardy learner, the learner began to answer him back in a rude and discourteous fashion. The teacher did not monitor effectively to prevent or diffuse the situation in which the unacceptable behavior occurred.
Furthermore, it was evident that a tardy policy is not in place nor clear to the learners.[9]
Improvement Plan: Gain a better understanding through direct classroom observation of expectations about acceptable behavior that are clear to learners and are consistently maintained throughout the lesson; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to convey and consistently maintain expectations about acceptable behavior.
Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 5, 2004.
Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning.
Component/Indicator II.E.5 Unacceptable behavior is managed quickly and in a reasonable manner **OR** there is no unacceptable behavior.
Deficiency: Unacceptable behavior is not managed quickly and in a reasonable manner. This deficiency is evidenced by:
Managing unacceptable behavior of learners in a reasonable manner was not evident. The learner who was tardy was disrespectful and argumentative with the teacher, and no discipline plan was followed (no consequences from this incident).
Improvement Plan: Gain a better understanding through direct observation of managing unacceptable behavior quickly and in a reasonable manner; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.5; Timeline: Discuss and identify with the administrator techniques and strategies to be used [for the] effective[] [] management of unacceptable behavior. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 9, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.D.3 Content knowledge is accurate and is clear to learners.
Deficiency: Content knowledge is not accurate and is not clear to learners. This deficiency is evidenced by:
The learners asked questions related to the objective, and the teacher was not able to
provide them with an answer. For example, a student asked, "From where do you get the delegates?" and the teacher made statements, including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where content knowledge is accurate and is clear to learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.3; Timeline: Discuss and identify with the administrator techniques and strategies to be used to demonstrate content knowledge that is accurate and is clear to learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 14, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context.
Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by:
Learners were not involved in learning activities nor exposed to a discussion session appropriate for the complexity of the learning context nor the level of academic standards of a gifted class. The learners were only exposed to a general teacher-directed lecture and then asked to define vocabulary words already used throughout the lesson.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching and learning activities are appropriate for the complexity of the learning context; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching and learning activities are appropriate for the complexity of the learning context. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence.
Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by:
Learning activities were not implemented in a logical sequence. The learners were asked to define the lesson's vocabulary words at the end of the lesson, even though they had already used the words throughout the lecture.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching methods and learning tasks are implemented in a logical sequence; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to
ensure that teaching methods and learning tasks are implemented in a logical sequence. Apply the newly learned strategies.
Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving.
Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by:
Learning activities did not engage learners in problem solving discussions. The lesson consisted of teacher-directed instruction and defining vocabulary words. The teacher did not provide learners with situations that require problem solving.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved in critical analysis and/or problem solving; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.C.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that [l]earners are actively engaged and/or involved in critical analysis and/or problem solving. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 19, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners.
Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by:
The learners were not provided appropriate teaching aids nor materials to accommodate the range of individual differences among a gifted class. The teaching aids only consisted of the students using a textbook to define vocabulary words at the end of the lesson.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching aids and/or materials are used properly and accommodate the range of individual differences among learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.C.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed.
Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This is evidenced by:
The learners asked questions that exhibited areas of difficulty and confusion throughout the lesson. The teacher did not clarify the points of difficulty appropriately. For example, a student asked, "From where do you get the delegates?" The teacher responded with statements including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where potential areas or points of difficulty in content and in learning tasks are emphasized as needed; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.6; Timeline: Discuss and identify with the administrator techniques and strategies to be used to emphasize potential areas or points of difficulty in content and in learning tasks. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.A.4 Learners are actively engaged and/or involved and
encouraged to generate and think about examples from their own experiences.
Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by:
The learners were not provided the opportunity to generate examples and share personal experiences related to the objective of elections. The lesson basically consisted of a lecture and defining words.
Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.A.4; Timeline: Discuss and identify with the administrator techniques and strategies to be used in order that learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 21, 2004.
Respondent timely submitted all of the logs he was required to keep in accordance with the Second PIP.
Principal Valenzuela conducted the next formal observation of Respondent. The observation took place on April 24, 2004, when Respondent had an advanced sixth-grade geography class in his classroom.
Respondent's performance during this April 24, 2004, observation was unsatisfactory.
Principal Valenzuela met with Respondent on April 29, 2004, to discuss Respondent's unsatisfactory performance during the April 24, 2004, observation and to review the Professional Improvement Plan Principal Valenzuela had prepared for him following the observation (Third PIP).
At this April 29, 2004, meeting, Respondent signed the Third PIP, indicating that he had "seen and received the document" on that date.
The Third PIP accurately noted the deficiencies Principal Valenzuela had found during his April 24, 2004, observation of Respondent and prescribed activities designed to help Respondent correct these deficiencies. It read as follows:
Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning.
Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities.
Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by:
The learning activities reflected inefficient delays. The students were given a quiz. Initially, they were told that they had ten minutes. Five minutes into the test the teacher interrupted to add two
additional questions. These questions were dictated. The teacher did not appear[] prepared for the dictation. The learners appeared confused.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.A.6 Directions necessary to implement learning tasks are clear and complete.
Deficiency: Directions necessary to implement learning tasks are not clear and complete. This deficiency is evidenced by:
Learners appeared confused after the teacher gave several directions. The teacher was not clear regarding a quiz. First, the quiz was scheduled to last ten minutes. Then the learners were asked to write short paragraphs, then a simple sentence. The teacher also added two questions at the end of the lesson that he acknowledged as covering material not previously taught. [T]he teacher interrupted the learners during the quiz. The quiz lasted 25 minutes.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self-
assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context.
Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by:
The learners were not involved in complex learning activities. The activities involved whole group instruction and teacher directed lecturing and short answers.[10] The teacher used the textbook and a wall map during the lesson. The teacher questioned some of the learners one at a time. Low cognitive question such as WHAT type questions prevailed during the lesson i.e.
What is the capital of Mongolia?
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence.
Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by:
Learning activities were not implemented in a logical sequence. The learners were asked questions about material not covered in class. The teacher discussed countries around China, which was the focus of the lesson, but did not discuss in depth the relationships of those countries. The learners were given directions about the quiz, but the teacher changed said directions several times.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners.
Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by:
The teacher did not use teaching aids properly. The teacher used a wall map, but only in passing. The teacher mainly lectured. There were lap maps and other visual aids in the room but were not used. The materials did not meet the needs of the advanced learners that made up that class.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings.
Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by:
The learners were exposed to many low level cognitive questions, such as What was the name of the island that is called Taiwan today? The teacher did not allow time to integrate knowledge as the whole class was teacher directed lecture.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning.
Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed.
Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This deficiency is evidenced by:
The teacher did not identify potential points of difficulty during the lesson. The learners appeared confused as the lesson progressed. The teacher did not elaborate on the learners['] concerns. Teacher directed lecture did not allow for points of interest to develop.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences.
Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by:
The learners were not provided the opportunity to generate and share personal experiences related to the objective of the lesson. The teacher provided misleading
information when he compared the Cuban guajiro to the [M]ongol[s] as similar. The cultures have no similarities.[11] The Cuban hut was made up of straw and adobe walls while the [M]ongol[s'] hut is made up [of] animal skins and wooden poles.
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004.
Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge.
Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving.
Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by:
The learners were not actively engaged or involved in critical analysis. The lesson was teacher directed lecture to whole class group. The whole time was the same. The learners were never in small groups and the questions used were predominantly low cognitive level, i.e. What is the capital of Mongolia?
Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide
self-assessment; Timeline: Present a written reflective summary of the self-
assessment activities to the administrator by May 18, 2004.
On May 18, 2004, in response to the directives contained in the Third PIP, Respondent submitted the following written statement to Principal Valenzuela:
The following is a written reflective summary of self-assessment for Paces Component/Indicators II.[A].3, IV.A.6, IV.B.1, IV.B.2, IV.C.2, IV.D.1, IV.D.6, V.A.4, and V.C.1.
Based on the many (more than 10) observations of other teachers I have had to conduct, I firmly believe that I am a good teacher of the subjects I am authorized to teach. Further, this self-assessment is reinforced by conversations with my peers, those who have had the opportunity to observe me in the classroom. Finally, I find it peculiar, to say the least, that for the first two years at this school I received spotless evaluations with regard to teaching, then right after a minor disagreement with Mr. Hernandez concerning the lesson plan format I was using and after I had applied for and received approval for a transfer, I suddenly became a worthless instructor.[12]
Taking the position that this submission was not in compliance with the directives contained in the Third PIP, Principal Valenzuela sent Respondent the following memorandum, dated May 19, 2004:
This memorandum is a formal notification that your reflections are incomplete. Each indicator needed to be addressed individually as per the Professional Development Plan. Please submit the completed assignment no later than Friday
May 21st to avoid any further disciplinary action.
Please also note that your final observation will take place either May 20th or May 21st. Please submit to me lesson plans, grade book, parent log and a sample work folder by Thursday May 20th.
Your attention to this serious matter is important.
On May 21, 2004, Respondent supplied Principal Valenzuela with a separate "self-assessment" summary for each deficiency noted in the Third PIP, but the body of each summary was identical to the body of the single summary that Respondent had initially submitted to Principal Valenzuela on May 18, 2004.
Later that same day (May 21, 2004), Principal Valenzuela responded to these submissions by sending the following memorandum to Respondent:
This memorandum is a second formal notification that the reflections submitted this morning, May 21st at 11:30 a.m. are still incomplete. It is obvious that you ignored the directives given in my memorandum dated May 19th, 2004.
Please note that I reported the matter to the Office of Professional Standards as I mentioned in your classroom.
I will be in your classroom Monday, May 24th to conduct the final observation.
Your attention to this serious matter is important.
As promised, Principal Valenzuela came to Respondent's classroom on May 24, 2004, (which was within 14 days of the close of Respondent's 90-calendar day probationary period) to conduct a formal observation of Respondent. Respondent was teaching an advanced seventh grade civics class, going over material for the final examination in the class. He "sped through the lesson" in a very disorganized and superficial manner without making any effort to obtain "feedback from the student[s]."
Principal Valenzuela accurately determined that Respondent's performance was deficient with respect to the following "Required Indicators": II.D.1, IV.B.2, IV.B.3, IV.C.2, IV.D.1, V.A.1, V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, and VI.C.4.
Principal Valenzuela had a post-observation meeting with Respondent, at which Respondent reviewed and signed the observation form on which Principal Valenzuela had noted Respondent's performance deficiencies during the May 24, 2004, observation.
Based on Respondent's failure to have "satisfactorily corrected . . . noted performance deficiencies within the provided timeframe," despite having been "provided assistance," Principal Valenzuela recommended that Respondent's "contract be
terminated." Respondent was provided written notification of this recommendation on May 25, 2004, and again on June 1, 2004.
The Superintendent accepted Principal Valenzuela's termination recommendation.
By letter dated June 21, 2004, the Superintendent informed Respondent that he was recommending that the School Board terminate Respondent's contract.
Respondent responded by sending the Superintendent a letter, dated June 30, 2004, "request[ing] a hearing regarding [the Superintendent's] recommendation."
The matter was referred to DOAH on July 6, 2004.
On July 14, 2004, the School Board purported to take action to terminate Respondent's employment with the School Board.13
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." § 1001.32(2), Fla. Stat.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." § 447.203(2), Fla. Stat.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. § 447.209, Fla. Stat.
Professional service contract teachers may be dismissed during the term of their contract for unsatisfactory performance in accordance Section 1012.34(3), Florida Statutes, which provides as follows:
The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student
performance and other approved criteria.[14] The procedures must comply with, but are not limited to, the following requirements:
An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under
s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following:
Performance of students.
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and[15] the use of technology in the classroom.
Ability to evaluate instructional needs.
Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.
All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.
The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than
10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file.
If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:
1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time.
2.a. If the employee holds a professional service contract as provided in s. 1012.33, 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 district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures:
A direct hearing conducted by the district 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 district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district 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 district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
At any administrative hearing conducted pursuant to Section 1012.34(3)(d)2.b., Florida Statutes, the burden is on the district school board to prove that the teacher failed to satisfactorily correct performance deficiencies within the statutorily required time period.
The district school board's proof need only meet the preponderance of the evidence standard, unless the collective bargaining agreement covering the bargaining unit of which the teacher is a member provides for a more demanding standard. See
McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v.
Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); Dileo v.
School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard."); Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 *5 (Fla. DOAH February 20,
1997)(Recommended Order)("Long-standing case law establishes
that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence."); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute,. . . ."). There is no record evidence suggesting that Respondent is covered by such a collective bargaining agreement imposing a standard of proof higher than a preponderance of the evidence.
At the final hearing held in this case before the undersigned, the School Board established by a preponderance of the evidence that, despite the efforts made by Milam administrators (in accordance with the requirements of Section 1012.34, Florida Statutes) to assist him, Respondent failed to satisfactorily correct, within the 90-calendar day "performance probation" period prescribed by Section 1012.34, Florida Statutes, performance deficiencies relating to the following "Required Indicators," of which, as required by Section 1012.34, Florida Statutes, he was timely made aware: IV.C.2 ("Teaching aids and/or materials are used properly and accommodate the
range of individual differences among learners"), V.A.4 ("Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences"), and V.C.1 ("Learners are actively engaged and/or involved in critical analysis and/or problem solving").
Such a showing (of Respondent's continuing unsatisfactory performance) having been made, the School Board should take final action to adopt the Superintendent's recommendation that Respondent's employment be terminated pursuant to Section 1012.34, Florida Statutes.16
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board enter a final order terminating Respondent's employment in accordance with Section 1012.34, Florida Statutes, for failure to satisfactorily correct noted performance deficiencies.
DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 29th day of October, 2004.
ENDNOTES
1 The Joint Response to Initial Order the School Board filed on behalf of both parties indicated that the "parties [were] available for hearing on September 13-15, 2004." No other potential hearing dates were suggested.
2 In Harrell v. School Board of Miami-Dade County, 866 So. 2d 704, 705 n.1 (Fla. 3d DCA 2003), the Third District Court of Appeal noted that "PACES was collectively bargained and supported by both the School Board and The United Teachers of Dade."
3 The school administration "provide[d] coverage for him" so he would be able to "go observe [another] teacher on a couple of [occasions]."
4 The memorandum, although signed by Principal Valenzuela, was actually drafted by Assistant Principal Hernandez.
5 Since January 7, 2003, the procedures that must be followed in terminating an employee with a professional service contract for failing to correct noted performance deficiencies have been set forth in Section 1012.34, not Section 231.29, Florida Statutes.
6 Contrary to what Respondent may believe, none of the below standards performance ratings Respondent received during the 2003-2004 school year was the product of a desire on the part of the evaluator to "punish" Respondent for having complained about Assistant Principal Hernandez's rejection, prior to the November 5, 2003, observation, of Respondent's lesson plan.
7 Professional growth team members "do not [make] employment decisions." While they may observe the classroom performance of the teachers they are helping, these observations do not "count as official observations."
8 Assistant Principal Judge treated Respondent no differently than any other teacher in evaluating his performance.
9 Teachers at Milam, pursuant to school policy, are required to have a "tardy policy" that is "fair," progressive in nature," and "presented to [the] students."
10 Even though teachers at Milam were directed to use "differentiated instruction" in their classrooms, Respondent showed a preference for "teacher directed" instruction.
11 The Mongols were a nomadic people. The Cuban guajiro were farmers, who did not lead a nomadic existence.
12 The suggestion that the unsatisfactory performance ratings Respondent received were based on these factors described by Respondent, rather than the observer/evaluator's honest and good faith assessment of Respondent's performance, is rejected as contrary to the greater weight of the evidence.
13 The School Board, however, was without jurisdiction to take such action since the matter had earlier been referred to, and was still pending before, DOAH. See Nicolitz v. Board of Opticianry, 609 So. 2d 92, 94 (Fla. 1st DCA 1992)("Once a referral to DOAH is made, however, "the referring agency shall take no action with respect to the formal proceeding except as a party litigant." § 120.57(1)(b)3), Fla. Stat. (1991) [now § 120.569(2)(a), Fla. Stat.]. Here, the department could only revest jurisdiction in the board without a recommended order from the hearing officer by obtaining a favorable ruling on its
. . . motion to relinquish jurisdiction]."); and § 120.569(2)(a), Fla. Stat. ("The referring agency shall take no further action with respect to a proceeding under § 120.57(1),
except as a party litigant, as long as the division has jurisdiction over the proceeding under § 120.57(1).
14 This second sentence was added by Section 3 of Chapter 2004- 295, Laws of Florida, effective June 10, 2004, to clarify that, contrary to the holding in Palm Beach County School Board v. Young, Case No. 03-2740, 2004 WL 542732 *14 (Fla. DOAH March 17, 2004)(Recommended Order), a finding of unsatisfactory teacher or administrator performance may be made under Section 1012.34(3), Florida Statutes, without consideration of student performance. Because this legislative addition merely clarified and did not substantively modify the version of Section 1012.34(3), Florida Statutes, in effect when the observations/evaluations at issue herein were conducted, it should be considered in determining the outcome of this case. See Palma Del Mar Condominium Association No. 5 of St. Petersburg, Inc. v. Commercial Laundries of West Florida, Inc., 586 So. 2d 315, 317 (Fla. 1991)("The legislature has the authority to explain its original intent, and did so in this instance, without modifying the original wording of section 718.3025. We have previously said that courts may consider subsequent legislation to determine the intended result of a previously enacted statute. Consequently, it is appropriate for this Court to consider chapter 86-175, Laws of Florida, particularly since there had been a judicial interpretation after the original enactment of section 718.3025 which the legislature believed was contrary to its original intent.")(citations omitted); Lowry v. Parole and Probation Commission, 473 So. 2d 1248, 1250 (Fla. 1985)("When, as occurred here, an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof."); State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So. 2d 529, 531 (Fla. 1973)("The mere change of language does not necessarily indicate an intent to change the law for the intent may be to clarify what was doubtful and to safeguard against misapprehension as to existing law."); G.E.L. Corp. v. Department of Environmental Protection, 875 So. 2d 1257,1262-63 (Fla. 5th DCA 2004)("Our consideration of the newly enacted provisions of section 57.105 is fitting because the courts have consistently held that subsequently enacted legislation may indicate the Legislature's intent to clarify the law rather than change it. This rule of statutory construction finds particular acceptance in instances where the subsequently enacted legislation comes soon after controversies arise over the meaning of an existing statute or
soon after judicial interpretations of an existing statute are rendered. Accordingly, the legislative response to the interpretation given section 120.595 in the administrative decisions just referred to clearly indicates that the Legislature did not agree with those interpretations and sought to clarify the meaning of the statute through the newly enacted provision to section 57.105."); Burgos v. State, 765 So .2d 967, 968 (Fla. 4th DCA 2000)("The legislature's subsequent amendment of a statute may properly be used to ascertain the legislative intent behind an earlier version of the statute."); and Environmental Trust v. Department of Environmental Protection, 714 So. 2d 493, 500 (Fla. 1st DCA 1998)("[T]he prohibition against retroactive application of administrative rules does not apply to all kinds of rule amendments. On the contrary, retroactive application of a rule may be proper if the rule merely clarifies or explains a previous rule. . . . [A] rule clarifying an unsettled or confusing area of the law can be applied retroactively because it merely restates what the law according to the agency is and has always been.")(internal quotations omitted).
15 The language, "implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and," was added by Section 7 of Chapter 2004-255, Laws of Florida, effective May 27, 2004. The addition of this language to Section 1012.34, Florida Statutes, has no bearing on the outcome of the instant case inasmuch as the 2004-2005 school year was the first school year that, pursuant to Section 1003.415(5), Florida Statutes, any school had to "incorporate . . . a rigorous reading requirement for reading and language arts programs as the primary component of its school improvement plan."
16 A teacher may be terminated under Section 1012.34, Florida Statutes, for not meeting minimum performance standards within the 90-calendar day "performance probation" period, regardless of the strengths the teacher may have demonstrated in other areas where the teacher's performance was not deficient.
COPIES FURNISHED:
Madelyn P. Schere, Esquire
School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
Joaquin R. Gomez
8132 Southwest 83rd Street Miami, Florida 33143
Rudolph E. Crew, Ed.D., Superintendent School Board of Miami-Dade County
1450 Northeast Second Avenue Miami, Florida 33132
Honorable Jim Winn Commissioner of Education Turlington Building, Suite 1514 Department of Education
325 West Gaines Street Tallahassee, Florida 32399-0400
Daniel J. Woodring, General Counsel Department of Education
1244 Turlington Building
325 West Gaines Street 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 |
|---|---|---|
| Dec. 20, 2004 | Agency Final Order | |
| Oct. 29, 2004 | Recommended Order | Petitioner is warranted in terminating teacher for failing to correct performance deficiencies within the 90-day probationary period. |
MIAMI-DADE COUNTY SCHOOL BOARD vs ELIZABETH KRISTAL, 04-002335 (2004)
MIAMI-DADE COUNTY SCHOOL BOARD vs JOANNE T. STERN, 04-002335 (2004)
MIAMI-DADE COUNTY SCHOOL BOARD vs SERGIO H. ESCALONA, 04-002335 (2004)
MIAMI-DADE COUNTY SCHOOL BOARD vs LEOPOLDO MUTIS, 04-002335 (2004)
SEMINOLE COUNTY SCHOOL BOARD vs JAMES A. CONNER, 04-002335 (2004)
