A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on April 24, 2008, in Largo, Florida.
For Petitioner: Laurie A. Dart, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
The issue is whether the Pinellas County School Board has just cause to terminate Respondent’s employment as a teacher.
By letter dated December 7, 2007, the Pinellas County Superintendent of Schools informed Respondent that he was going to recommend that the Pinellas County School Board (School Board) terminate Respondent’s employment as a teacher effective January 8, 2008. By letter dated January 2, 2008, Respondent requested a “formal administrative hearing, pursuant to Section 120.57, Florida Statutes, to challenge the termination of his employment.”
On January 16, 2008, the School Board referred this matter to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent. The case was initially assigned to Judge Bram D.E. Canter and set for final hearing on April 17, 2008.
On February 6, 2008, the case was transferred to the undersigned. Thereafter, based upon Respondent’s unopposed motion, the final hearing was rescheduled for April 24, 2008.
At the final hearing, the School Board presented the testimony of Niel Tebbano, Paul Wahnish, Paula Nelson, Chuck Drake, Sue Bailey, Dr. Valerie Brimm, students S.M., T.P., Va.F, and Vi.F, and the deposition testimony of Dr. Harry Brown; and Respondent testified in his own behalf and presented the testimony of student S.S. and the deposition testimony of
students M.C., N.P., and K.H. The following exhibits were received into evidence: School Board Exhibits 1, 2, 3A through 3E, and 4 through 19, and Respondent’s Exhibits A through F.
The three-volume Transcript of the final hearing was filed on May 20, 2008. The parties initially requested and were given
14 days from that date to file proposed recommended orders (PROs), but the deadline was subsequently extended to June 10, 2008, based upon Respondent’s unopposed motion. Respondent filed a PRO on June 10, 2008, and the School Board filed a PRO on June 11, 2008. The PROs have been given due consideration in the preparation of this Recommended Order.
Respondent has been employed by the Pinellas County School District (District) as a classroom teacher since 1999.
He was granted a professional service contract on July 30, 2003.
Respondent has taught math at Boca Ciega High School (BCHS) in southern Pinellas County since 1999. He is a certified math teacher.
Respondent has been a satisfactory math teacher. He has not been the subject of any prior disciplinary actions.
BCHS administrators decided towards the end of the 2005-06 school year to add a pre-engineering program to the school’s curriculum for the 2006-07 school year.
BCHS administrators approached Respondent in the spring of 2006 and asked whether he would be interested in teaching an introductory engineering course during the following school year since he had worked as an engineer prior to becoming a teacher. Respondent agreed to do so.
The pre-engineering curriculum offered at BCHS was developed by a nationally-recognized organization known as Project Lead the Way (PLTW). The PLTW curriculum is designed to expose students to engineering concepts and skills in order to prepare them for higher education and careers in engineering.
PLTW offers a number of courses, and schools are required to offer a minimum of four of the courses, including three foundation courses. Some of the PLTW courses allow students to earn college credit, similar to an Advance Placement course.
The PLTW curriculum was first introduced in the District in 2002 at East Lake High School (ELHS) in northern Pinellas County. The PLTW curriculum at ELHS is the centerpiece of the school’s successful “engineering academy.”
BCHS planned to offer a PLTW foundation course known as Principles of Engineering (POE) in the 2006-07 school year.
This was an appropriate course for the start-up program at BCHS. No other PLTW courses were offered at BCHS, and students did not earn college credit for the POE course.
The District’s contract with PLTW requires the District to lease or purchase the materials necessary for teachers to teach the PLTW curriculum. The necessary materials include computers for the students as well as specialized engineering software, such as Auto Cad/Inventor Pro and Robo Pro.
It is not possible for a teacher to competently teach the POE course in accordance with the PLTW standards without the necessary materials, including the specialized engineering software.
The District’s contract with PLTW requires the teacher to administer the standardized written exam provided by PLTW at the end of each course. The exam is an important element of the PLTW curriculum, particularly for those courses that offer college credit.
PLTW expects school-based administrators to have a general understanding of the program and to provide support for the teacher in order to ensure successful implementation of the program.
The ELHS administrators have been actively involved with the school’s engineering program since its inception and they have worked with the teachers in the program to make the school’s engineering academy a success.
By contrast, the BCHS administrators were far less involved with the school’s POE course. They expected Respondent to get the course up and running, and they relied upon him to do so.
The District sent Respondent to a two-week training program administered by PLTW during the summer before the 2006- 07 school year. The purpose of the training program was to teach teachers exactly what they need to know to teach a POE course in accordance with the standards developed by PLTW.
The materials provided to the teachers at the training program included detailed “unit plans” outlining the concepts, lessons, and activities that teachers were to cover each day during the course. The unit plans identified the projects to be assigned and completed by students, as well as the assessment tools to be used by the teacher in evaluating the students’ work.
Respondent received the POE curriculum and the unit plans, both in written and electronic format at the training program that he attended. Specialized engineering software was also downloaded onto his District-issued laptop computer.
PLTW expects teachers to strictly follow the unit plans provided at the training program when teaching the POE course. This expectation, as well as the expectation that all students are to take the standardized, written PLTW final exam,
was communicated to Respondent at the training program he attended.
BCHS was on a “four-by-four” schedule during the 2006- 07 school year, which means that students attended four 80- minute classes each day rather than six 50-minute classes. A course that takes two semesters to teach on a traditional schedule is taught in a single semester on a four-by-four schedule.
The POE course is designed to be a year-long course, but because of the four-by-four schedule at BCHS, Respondent taught two separate POE courses during the 2006-07 school year. The first course started in August 2006 and ended in January 2007 (hereafter “the first POE course”), and the second course started in January 2007 and ended in May 2007 (hereafter “the second POE course”).
Respondent was not provided laptop computers for the students or the necessary specialized engineering software for the computers prior to the start of the first POE course. He also did not have a printer in his classroom.
On August 23, 2006, approximately two weeks into the school year, Respondent sent an e-mail to Jerry Ditty, the District’s contact person for the PLTW program, listing the materials that he needed in order to teach the POE course. The list included laptop computers for the students as well as
“software to load onto the laptops.” The e-mail did not clearly identify the type of specialized engineering software that Respondent needed.
Respondent continued over a period of months to request the computers and other materials through e-mail communications with Mr. Ditty. These requests focused on the computers and printer, not the specialized engineering software needed to teach the PLTW program.
Respondent testified that he repeatedly told the BCHS principal and assistant principal that he needed laptop computers for the students and other materials to properly teach the POE course. However, the principal and assistant principal persuasively testified that Respondent never told them that he needed any specialized engineering software, and the assistant principal offered several alternatives (e.g., use of a nearby computer lab) to Respondent until the students’ laptop computers and the printer arrived.
Respondent received the students’ laptop computers in December 2006, towards the end of the first POE course. He never received the necessary specialized engineering software for the computers or a printer for his classroom.
Respondent did not teach the PLTW curriculum or administer the standardized PLTW final exam during either of the POE courses. He testified that he “improvised” a curriculum for
the POE courses because he did not have the specialized engineering software and other materials necessary to teach the PLTW curriculum.
Respondent testified that a typical week in his POE courses consisted of him presenting engineering definitions and Power Point presentations on engineering concepts to the students on Monday and Tuesday and then the students researching and working on projects the rest of the week. This testimony was partially corroborated by several of the students in the second POE class, who testified that Respondent sometimes discussed engineering concepts with the class and that they worked on definitions of engineering terms. However, the students also testified that they spent a significant amount of time in the class surfing the Internet, listening to music, working on homework from other classes, and playing Sudoku.
Almost all of the projects that the students recalled doing in the POE course had nothing to do with engineering. One project involved the creation of a “pretend business” using an Excel spreadsheet, and another project involved the creation of a Power Point presentation about the student’s favorite musician. The students also did research projects on a twentieth century invention of their choice, which ranged from television to the birth control pill.
Every student in the POE courses taught by Respondent received an “A” as a final grade. The students testified that the course was “fairly easy” and “fun,” but they acknowledged that they learned almost nothing about engineering.
The BCHS administrators were generally unaware of what Respondent was doing in the POE courses. They did not learn that Respondent had not been teaching the course in accordance with the PLTW curriculum until after the second POE course was completed.
The BCHS and District administrators began investigating Respondent’s teaching of the POE course after he and the students did not show up for the class on final exam day, May 17, 2007.
Respondent explained that he did not show up for the class on that day because all of the students had taken a “project-based exam” in lieu of a written final exam or were “exempted” from taking a final exam.
School Board Policy 5.15(4)(a) explains that a final exam is to be “a comprehensive assessment covering the course student performance standards for the entire term.”
It is expected that the final exam will be a written, “sit down paper and pencil exam.” However, School Board policy does not expressly prohibit “project-based exams,”1/ and the District’s Deputy Superintendent for Curriculum and Operations,
testified that such exams may be appropriate in certain types of courses, such as music.
The final exam -- whether written or project-based -- must be comprehensive and cover all of the subjects that are supposed to be taught in the course, which, as in this case, may not be the same as what was actually taught.
School Board Policy 5.15(4)(c) provides that a student can be “exempted” from taking the final exam if his or her provisional grade in the class is at least a “B” and if he or she has no more than five absences.
This policy does not exempt students in Advance Placement or International Baccalaureate courses from taking the exams required for college credit, nor does it exempt students in the POE course from taking the standardized written final exam required by PLTW.
Respondent gave the District and BCHS administrators a variety of excuses during the course of the investigation as to why he did not administer the PLTW final exam. Among other things, he falsely claimed that he was authorized by the assistant principal at BCHS to administer a project-based exam and that he did not have access to the PLTW website to download the standardized written exam.
Respondent conceded at the final hearing that he did not administer the PLTW exam because the students could not have
passed the exam. The students’ inability to pass the final exam was a direct result of Respondent’s failure to teach the PLTW curriculum.
Respondent told the District and BCHS administrators during the course of the investigation that he administered a project-based exam during the last week of school and that the exam included definitions and research projects.
Respondent was unable to produce copies of the questions for the project-based exam or the work done by the students on the exam. He testified that the work was saved to “flash drives,” which he was unable to locate.
Respondent conceded in his PRO that “it is not the best practice for a teacher to be unable to produce student work product.”
Respondent presented the District investigator a number of forms signed by students in the second POE course in an effort to corroborate his claim that he administered project- based exams to the students during the last week of the course.
The forms, which were drafted by Respondent and signed by the students in November 2007, stated that the students completed four assignments -- a research or invention project, writing a computer program using an Excel spreadsheet, a set of engineering questions, and definitions from a drafting book --
during the last week of class. The form also stated that the assignments “constitute the final exam grade” and that:
It was clearly stated to me that these assignments were to be counted as a project grade. It was clearly stated to me, those required to take the final exam, that these assignments were to be counted as my final exam. I agree that I saved my work to one of the five flash-drives in class.
The statements on the form are inconsistent with the students’ testimony at the final hearing in several respects. Most significantly, the students testified that the assignments referenced on the forms were not completed during the last week of school, but rather were completed over the course of the semester.
The students’ testimony is found more persuasive than the statements on the forms. The students testified that they did not read the forms prior to signing them and/or that they thought they were simply affirming that they did certain assignments during the POE course.
Additionally, contrary to the implication created by Respondent through the wording of the forms, the students testified that the research and Excel projects that they performed had nothing to do with engineering. Instead, as stated above, the projects involved “pretend businesses” and the students’ favorite musicians.
Respondent was not forthright during the investigation of his teaching of the POE course. For example, in addition to the forms that he drafted for the students to sign, Respondent presented a variety of unpersuasive and illogical excuses as to why he did not follow the PLTW curriculum in teaching the course or administer the standardized PLTW final exam. Additionally, he attempted to shift the blame for his failure to follow the PLTW curriculum to the BCHS administrators by accusing the principal and assistant principal of, among other things, being incompetent, untrustworthy, and unqualified for their respective positions, in e-mails to the Superintendent and the District’s investigator.
Respondent was not a credible witness. His testimony was generally unpersuasive, as was his effort to shift all of the blame for the failure of the POE course to others. His testimony was, at times, evasive and illogical.
Respondent fails to appreciate the significance of his conduct giving rise to this case. He unpervasively claimed that the District’s investigation is a “farce” and part of an “ongoing pattern of harassment” by the principal and assistant principal at BCHS, and he arrogantly testified that the District’s efforts to terminate his employment as a teacher are “absolutely absurd, ridiculous and would take somebody extremely incompetent to push it this far.”
The BCHS principal credibly testified that it would be impossible for her to trust Respondent as a teacher because of his “untruths” and because the students in his POE class “were deprived of a really great program” by Respondent’s failure to adhere to the PLTW curriculum.
School Board Policy 8.48(2) requires certified employees such as Respondent to comply with the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession in Florida.
Respondent was suspended without pay pending the outcome of this proceeding.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.33, Florida Statutes (2007).2/
The School Board has the burden to prove the allegations against Respondent by a preponderance of the evidence. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); § 120.57(1)(j), Fla. Stat.
Section 1012.33(6)(a), Florida Statutes, provides that a teacher may be suspended or dismissed at any time for “just cause.”
Section 1012.33(1)(a), Florida Statutes, defines “just cause” as follows:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
The School Board contends that Respondent’s conduct rises to the level of “willful neglect of duty” and “misconduct in office.” See School Board PRO, at ¶ 53.
The School Board met its burden of proof with respect to the “misconduct in office” charge, as discussed below.
“Willful neglect of duty” is defined by the State Board of Education to mean “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.” Fla. Admin. Code R. 6B-4.009(4).
The evidence establishes that Respondent failed to adhere to the PLTW curriculum, that he failed to administer a comprehesive final exam in the POE courses, and that he failed to preserve student records from the courses to show what he taught and how he graded the students’ work. These failures raise serious questions regarding Respondent’s competency as a teacher (at least with respect to the POE course),3/ but they do not rise to the level of “willful neglect of duty” as defined above.
“Misconduct in office” is defined by the State Board of Education to mean:
a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.
Fla. Admin. Code R. 6B-4.009(3).
There are two elements to “misconduct in office.” First, there must be a violation of the Code of Ethics or the Principles of Professional Conduct. Second, the violation must be serious enough to impair the teacher’s effectiveness in this school system.
The Code of Ethics requires teachers to “seek to exercise the best professional judgment” and to “strive[] to achieve and sustain the highest degree of ethical conduct.” See Fla. Admin. Code R. 6B-1.001(2) and (3).
The Principles of Professional Conduct require teachers to “maintain honesty in all professional dealings,” to “not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression,” and to “not submit fradulent information on any document in connection with professional activities.” See Fla. Admin. Code R. 6B-1.006(4)(b), (5)(a), (5)(h).
The evidence establishes that Respondent failed to exercise the best professional judgment and violated the Code of
Ethics when he failed to adhere to the PLTW curriculum, failed to administer a comprehesive final exam in the POE courses, and thereby failed to preserve student records from the courses to show what he taught and how he graded the student’s work.
The evidence also establishes that Respondent violated the Code of Ethics and Principles of Professional Conduct when he was not forthright with the District and BCHS administrors during the investigation of his teaching of the POE classes, and that he presented false and misleading information (e.g., the forms signed by the students) during the investigation.
Ineffectiveness can be inferred from the conduct at issue and need not be independently proven. See Purvis v.
Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000).
Respondent’s dishonesty during the District’s investigation of his teaching of the POE class is serious enough to support an inference of ineffectiveness in this case. It is also a violation of School Board Policy 8.04(3), which requires full cooperation during investigations of employee misconduct.
The School Board is seeking to terminate Respondent’s employment as a teacher based upon his misconduct. See School Board Exhibits 1 and 2; School Board PRO, at ¶ 63.
The School Board has adopted “disciplinary guidelines for employees” in Policy 8.25.
Subsection (1) of the policy provides in pertinent
part:
The School District generally follows a system of progressive discipline in dealing with deficiencies in employee work performance or conduct. Progressive discipline may include, but is not limited to, verbal or written counseling or caution, written reprimand, suspension without pay and dismissal. The severity of the problem or employee conduct will determine whether all steps will be followed or a recommendation will be made for suspension without pay or dismissal. When there is a range of penalties, aggravating or mitigating circumstances will be considered.
. . . . The following offenses, when constituting grounds for discipline under Section 1012.33, Florida Statutes, shall have the following penalties:
OFFENSE PENALTY
RANGE
* * *
(v) Misconduct or Misconduct Caution - in office Dismissal
* * *
(x) Failure to Comply with Caution - School Board Policy, Dismissal State Law, or Appropriate
Contractual Agreement
Subsection (3) of the policy lists the following aggravating and mitigating factors that are to be considered
when determining the appropriate penalty within the penalty range:
The severity of the offense
Degree of student involvement
The danger to the public
The number of repetitions of the offenses and length of time between offenses
The length of time since the misconduct
The number of times the employee has been previously disciplined by the district as well as the type of the discipline
The contributions of the employee
The actual damage, physical or otherwise, caused by the misconduct
The deterrant effect of the discipline
Any effort of rehabilitation by the employee
The actual knowledge of the employee pertaining to the misconduct
Attempts by the employee to correct or stop the misconduct
Related misconduct by the employee in other employment including findings of guilt or innocence, discipline imposed and discipline served
Actual negligence of the employee pertaining to any misconduct
Pecuniary benefit or self-gain to the employee realized by the misconduct
Degree of physical or mental harm to a student, co-worker or member of the public
Length of employment
Whether the misconduct was motivated by unlawful discrimination
Any relevant mitigating or aggravating factors under the circumstances
Employee’s evaluation
The aggravating factors present in this case are the extent and continuing nature of Respondent’s dishonesty (factors (a), (d), (k), and (n)), his refusal to accept responsibility for his actions and his efforts to shift blame to others, which show a lack of rehabilitation (factors (l) and (j)), and his involvement of students in his attempt to mislead the District’s investigator (factor (b)).
The mitigating factors present in this case are Respondent’s nine-year tenure as a teacher (factor (q)), his lack of prior discipline (factor (f)), and his satisfactory performance as a math teacher (factor (t)).
Dismissal is the appropriate penalty in this case after considering these aggravating and mitigating factors. Dismissal is within the penalty range for “misconduct in office,” and the aggravating factors outweigh the mitigating factors.
RECOMMENDED that the School Board enter a final order terminating Respondent’s employment as a teacher.
DONE AND ENTERED this 26th day of June, 2008, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2008.
1/ A project-based exam is “a culminating project to demonstrate [the student’s] ability to do something, to perform something.” See School Board Exhibit 2, at 15.
2/ All statutory references in this Recommended Order are to the 2007 version of the Florida Statutes.
3/ Respondent was for some reason not charged with “incompetency,” which includes the “repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience.” See Fla. Admin. Code R. 6B- 4.009(1)(a)(2) (emphasis supplied).
Laurie A. Dart, Esquire Pinellas County Schools
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clayton M. Wilcox, Ed.D. School Board Superintendent Pinellas County School Board Administration Building
301 Fourth Street, S.W.
P.O. Box 2942
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith Commissioner of Education Department of Education
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
