STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on November 5, 2008, in Largo, Florida.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to

his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for

90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).

PRELIMINARY STATEMENT

By letter dated May 14, 2008, the Superintendent of Petitioner, Pinellas County School Board, Clayton Wilcox, Ed.D., advised Respondent, Curtis Brown, that he was recommending his dismissal for unsatisfactory performance evaluations.

On June 5, 2008, Petitioner requested a formal administrative hearing. On August 18, 2008, Respondent forwarded the case to the Division of Administrative Hearings.

On the same day, August 18, 2008, an Initial Order was sent to both parties requesting, inter alia, mutually convenient dates for the final hearing.

Based on the response of the parties on August 26, 2008, the case was scheduled for final hearing on November 5 and 6, 2008, in Largo, Florida.

On October 14, 2008, Petitioner filed a Motion to Amend Petition, which was granted on October 23, 2008. In addition to the original allegations recommending dismissal for unsatisfactory performance evaluations, it was alleged that Respondent violated Pinellas County School Board Policy 8.25(1)(t), (j), (u), and (x).

The hearing took place on November 5, 2008. Petitioner presented five witnesses: Deborah Wedding, Corliess Davis, Daniel Brennan, Maureen Thornton, and James Lott. Petitioner's Exhibits 1 through 4, 5A and B, 6, 7A through I, 8A and B,

9 through 11, 12A and B, 13 through 17, and 18A through M were received into evidence. Respondent testified and presented Robert Goodwin and Roseanne Trapani as witnesses. Respondent did not offer any exhibits.

The Transcript of Proceedings was filed on December 2, 2008. An Order was entered enlarging the time for filing proposed recommended orders to December 22, 2008. Both parties submitted Proposed Recommended Orders.

All statutory references are to Florida Statutes (2007), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals.

2. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract.

3. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations.

4. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement.

5. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory.

6. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in

   Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08.

7. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation.

8. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful.

9. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory

   performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes.

   Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment.

10. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology.

11. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent

    received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating.

12. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings.

13. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so.

14. Respondent's teaching record contains memos regarding the following:

    1. Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03);

       
       

    2. A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004);

       
       

    3. A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005);

       
       

    4. Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07);

       
       

    5. A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005);

    6. A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and

       
       

    7. A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).

       
       

       CONCLUSIONS OF LAW

       
       

15. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter. § 120.57, Fla. Stat.; Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

16. Subsections 1001.32(2) and (3), Florida Statutes, read as follows:

    1. DISTRICT SCHOOL BOARD.–-In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall 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.

       
       

    2. DISTRICT SCHOOL SUPERINTENDENT.–- Responsibility for the administration and management of the schools and for the supervision of instruction in the district shall be vested in the district school superintendent as the secretary and executive officer of the district school board, as provided by law.

    
    

17. A district school board is considered 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 other legitimate reasons." § 447.209, Fla. Stat.

18. There are two statutory mechanisms that are vehicles for the dismissal of an instructional staff member. An employee holding a Professional Service Contract can be terminated for failure to correct performance deficiencies within the 90-day probation period under Section 1012.34, Florida Statutes. An employee holding a Professional Service Contract can also be terminated for cause as provided in Section 1012.33, Florida Statutes. The two statutes are separate and distinct and either or both may form the basis for dismissal.

19. The appropriate standard of proof in a school board dismissal proceeding is preponderance of evidence, unless the Collective Bargaining Agreement covering the bargaining unit of which the employee is a member prescribes a more demanding standard of proof. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995). Neither party here has pointed to or offered evidence of any contractual provision that would require Petitioner to satisfy a stricter standard of proof.

20. Because the statute and rules providing grounds for terminating Respondent's contract are penal in nature, they must be construed in favor of the employee. Rosario v. Burke, 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

    Professional Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

    
    

21. When a school board seeks to terminate an employee's contract for just cause, it must establish each and every element of the charge. MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993).

22. Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. Lusskin v. Agency for

    Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

23. In the instant case, Petitioner's Amended Petition charges that grounds exist to terminate Respondent's employment for the reason that he failed to correct performance deficiencies within the 90-day probationary period prescribed by Section 1012.34, Florida Statutes, and because just cause exists under Section 1012.33, Florida Statutes, due to Petitioner's

    alleged violation of School Board Policies 8.25(1)(t), (j), (u), and (x).

24. Section 1012.34, Florida Statutes, reads, in pertinent part, as follows:

    1. 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. The procedures must comply with, but are not limited to, the following requirements:

       
       

       1. 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

    1. 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:

       1. Performance of students.

          
          

       2. Ability to maintain appropriate discipline.

          
          

       3. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.

          
          

       4. Ability to plan and deliver instruction and the use of technology in the classroom.

          
          

       5. Ability to evaluate instructional needs.

          
          

       6. Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement.

          
          

       7. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.

    
    

    * * *

    
    

    (d) 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.

    
    

25. Petitioner has established by a preponderance of the evidence that Respondent did not correct his performance deficiencies during the 90-day period of probation. The evaluation included all statutory-mandated areas of consideration. Respondent did not avail himself of numerous opportunities to correct his apparent deficiencies despite constructive leadership from school administrators at his school and from the school district office.

26. Subsection 1012.33(1)(a), Florida Statutes, reads, as follows:

    Each person employed as a member of the instructional staff in any district school

    system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

27. In addition to the statutorily defined "just cause" bases for dismissal listed in paragraph 26, a School Board may determine additional offensive conduct that constitutes just cause for disciplinary action. Mitchell v. School Board of

    Miami-Dade County, 972 So. 2d 900 (Fla. 3rd DCA 2007); Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2nd DCA 1994)

28. Pinellas County School Board Policy 8.25, Disciplinary Guidelines for Employees, reads, in pertinent part, as follows:

    (1) 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

    
    

    * * *

    
    

    (j) Incompetence Reprimand- Dismissal

    
    

    * * *

    
    

    (v) Failure to Correct Caution- Performance Deficiencies Dismissal

    
    

    * * *

    
    

    (u) Insubordination, Which Caution- is Defined as a Continuing Dismissal or Intentional Failure to

    Obey a Direct Order, Reasonable in Nature, and Given By and With Proper Authority

    
    

    * * *

    
    

    (x) Failure to Comply Caution- With School Board Policy, Dismissal State Law, or Appropriate

    Contractual Agreement

    
    

29. Petitioner has proven by a preponderance of the evidence that Respondent violated School Board Policy in that he failed to correct performance deficiencies and failed to comply with school board policy. His performance history is marked by repeated failure to comply with basic administrative requirements and a lack of teaching effectiveness.

30. Respondent's repeated failure or inability to respond and comply with appropriate, reasonable directives given him by a series of school administrators demonstrates either incompetence or insubordination, both of which are violations of

school board policy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated.

DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009.

COPIES FURNISHED:

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board

301 Fourth Street Southwest Largo, Florida 33770-2942

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Laurie A. Dart, Esquire Pinellas County Schools

301 Fourth Street Southwest Post Office Box 2942

Largo, Florida 33779-2942

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 08-003985TTS

Orders for Case No: 08-003985TTS