STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ORANGE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 10-0920
)
SONIA BAILEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Patricia M. Hart, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on October 13, 2010.
The other videoconference site was in Orlando, Florida. On June 2, 2011, due to the imminent retirement of Judge Hart, the case was transferred to Robert E. Meale, Administrative Law Judge, who has prepared the Recommended Order, as provided by section 120.57(1)(a), Florida Statutes.
APPEARANCES
For Petitioner: John C. Palmerini, Esquire
Orange County School Board
445 West Amelia Street Orlando, Florida 32801-1129
For Respondent: Tobe Lev, Esquire
Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
STATEMENT OF THE ISSUES
As identified in the Prehearing Stipulation filed on October 11, 2010, the issues are whether Petitioner may dismiss Respondent for incompetency, as defined by Florida Administrative Code Rule 6B-4.009(1); failing to make adequate progress on her Probationary Performance Plan so as to cause her students to perform at an unacceptable level, in violation of her employment contract and school board policies; willful neglect of duty, as defined by Florida Administrative Code Rule 6B-4.009(4); or failing to correct performance deficiencies timely, as required by section 1012.34, Florida Statutes.
PRELIMINARY STATEMENT
By letter dated January 14, 2010, to Petitioner's superintendent, Dr. Jennifer Reeves, an area superintendent, advised that she had received a recommendation from the principal of Freedom High School, Dr. Harold Border, to dismiss Respondent, pursuant to section 1012.34, Florida Statutes.
Joining in the recommendation, Dr. Reeves stated that Respondent had completed a 90-day performance probation period on
January 6, 2010, and received a final assessment on January 13,
2010.
In his memorandum dated February 9, 2010, to the school
board, the superintendent recommended the dismissal of Respondent and attached an Administrative Complaint. The
Administrative Complaint states that Petitioner dismisses Respondent pursuant to section 1012.34, Florida Statutes. The Administrative Complaint alleges that the reading benchmarks for the 2009-10 school year revealed that over 95% of Respondent's students were "off target" for the fall and winter grading periods and that only 43 of 133 of her students retaking the FCAT passed the test. The Administrative Complaint alleges that Respondent's principal placed her on a Probationary Performance Plan, for 90 duty days, on August 17, 2009, and the principal advised Respondent, on January 13, 2010, that she had not made adequate improvement under the plan. The Administrative Complaint alleges that these actions by Respondent violate school board policies and the superintendent's Instructional Goals, constitute willful neglect of duty, and represent a breach of Respondent's employment agreement. The Administrative Complaint does not identify any policies, Instructional Goals, or contract provisions.
At the hearing, Petitioner called five witnesses and offered into evidence Petitioner Exhibits 1 and 3-9. Respondent called six witnesses and offered into evidence Respondent Exhibits 1-8. All exhibits were admitted, except Respondent Exhibit 7, which was proffered.
The court reporter filed the Transcript on November 1, 2010. The parties filed their Proposed Recommended Orders by November 22, 2010.
FINDINGS OF FACT
Respondent earned a bachelor's degree in elementary education in 1993 and was certified in elementary education. In 1997, Respondent earned her master's degree in the teaching of reading.
Respondent taught reading in first, third, fourth, and fifth grades in public schools in New York City from 1993-2005. She was a satisfactory teacher during this period.
Respondent and her husband moved to Florida in 2005.
Petitioner hired Respondent to teach reading at Discovery Middle School early in the 2005-06 school year. At the time, Respondent held certifications in elementary education and elementary and secondary reading.
At the end of the 2005-06 school year, Respondent received a final assessment report reporting that she had been "effective," which is the highest of the four ratings, in each of the six areas evaluated: classroom management and discipline, curriculum knowledge, planning and delivering instruction, assessment of student performance and individual professional development plan, interpersonal skills, and professional responsibilities. However, the principal of
Discovery Middle School did not rehire Respondent for the following school year.
For the 2006-07 school year, Respondent was hired to teach reading at Odyssey Middle School. In the latter half of October 2006, Respondent received an unfavorable preliminary assessment report showing that she "needs improvement" in classroom management and discipline, curriculum knowledge, and professional responsibilities and that she was "satisfactory" in the other areas. "Needs improvement" is better than only "unsatisfactory" among the four ratings.
The comment under classroom management and discipline states, in part:
[Respondent] is working on stopping misconduct as well as promoting/creating an atmosphere of mutual respect between students and herself. High expectations should be clearly conveyed with consistency.
The comment under curriculum knowledge notes, in part: [Respondent] is learning the Corrective
Reading program. She will continue working
to learn strategies/skills that will enhance teacher performance and student learning.
At the end of the school year, in all six areas, Respondent received "satisfactory," which is the second-highest rating. This evaluation contains detailed comments, most of which indicate that Respondent has shown improvement or growth or is continuing to work on specific skills.
The comment under classroom management and discipline notes, in part: "[Respondent] continues to need work on using voice tone when stopping misconduct, as well as promoting and [sic] atmosphere of mutual respect, setting high expectations." The comment under curriculum knowledge states: "[Respondent] has shown continued growth in learning the Corrective Reading program, [sic] and various strategies and skills that will enhance teacher and student performance." The comment under planning and delivering instruction states, in part: "[Respondent appears to be more comfortable in her delivery of instruction to students. She is also utilizing more questioning techniques. [Respondent] is continuing to work on incorporating a variety of activities that encourage participation, critical thinking, and comprehension."
For the second consecutive year, though, Respondent's principal did not reemploy her for the following school year. For the 2007-08 school year, Respondent was hired to teach reading at Westridge Middle School. This was her third year under an annual contract. At the end of the school year, Respondent received "satisfactory" in classroom management and discipline and, in the remaining areas, "effective," which is the highest rating. This evaluation contains no comments.
For the 2008-09 school year, Respondent returned to teach reading at Westridge Middle School, now with a
professional service contract. However, she found at the school a new principal and assistant principal, who imposed new demands on the teachers.
In the middle of the 2008-09 school year, the new assistant principal was relocated to an office that was in close proximity to Respondent's classroom. The assistant principal noticed immediately that Respondent's classroom management skills were not well developed, as her students were often unruly and disruptive. On separate occasions, the assistant principal saw, during class, one student climb atop a filing cabinet and another student throw a football across the room.
In neither case did Respondent redirect or discipline the student who was atop the filing cabinet or the student who was tossing the football. Nor did these omissions seem isolated. The assistant principal noted that, during all of her observations, Respondent never redirected a misbehaving student; instead, she ignored the student and merely continued to speak to the class, as though the student were not misbehaving.
During this school year, only 23% of Respondent's students passed the FCAT. The assistant principal testified that this was an unacceptable percentage. However, the assistant principal believed, probably incorrectly, that all of Respondent's classes were advanced reading, so her testimony as to the significance of a 23% pass rate is of no value.
However, 77% of Respondent's students dropped a reading level of performance, as measured by FCAT. This is unacceptable and obviously does nothing to dispel doubts about Respondent's ability to teach or manage a classroom.
During one observation, the assistant principal noted that Respondent was unable to use the reading comprehension tool known as "KWL," which helps a student structure his reading experience based on what the student already knows, what the student wants to learn, and what the student has learned after completing the reading assignment. During another observation, the assistant principal saw that Respondent had misdefined words on the vocabulary board. During another observation, the assistant principal saw that the displayed teaching objective bore no relationship to anything that Respondent was trying to teach. During several observations, the assistant principal saw that Respondent's poor classroom management skills interfered with instruction, and her poor instructional skills interfered with classroom management.
Toward the end of the 2008-09 school year, the principal placed Respondent on a Personal Improvement Plan (PIP). However, Respondent's classroom performance did not improve under the PIP.
By the end of the 2008-09 school year, the assistant principal had access to a broader range of data concerning
student achievement in Respondent's class during the school year. Reading classes produce eight measures of student performance, including the SRA-developed Jamestown Reading Series that features biweekly assessment testing and the district-wide Edusoft benchmark tests. After examining the data for Respondent's classes, the assistant principal correctly determined that Respondent's students had not performed adequately during the school year.
At the end of the 2008-09 school year, Respondent received "unsatisfactories" in all six areas. The comments under classroom management and discipline are:
[Respondent] needs to improve on all aspects of classroom management and discipline
. . . . [Respondent] has been on an Improvement Plan and has shown no improvement. Administration, County and State Personnel have concerns regarding the safety of students in the classroom due to lack of control and management.
The comments under planning and delivering instruction indicate that there was not any improvement in instruction, and the "delivery of instruction is so weak that all of the objectives in this domain are unsatisfactory." The comments under assessment of student performance are: "There is no assessment of students in this class. Assessments that are done on a school wide level are not used by [Respondent] to drive
instruction. [Respondent's] students have shown very little gain in reading throughout the school year."
For the four school years ending with the 2008-09 school year, Respondent twice had not been invited to return to a school for the following year, had received an unfavorable preliminary assessment two months into one of her new jobs, and had had her worst year during the 2008-09 school year. With one exception, Respondent's assessments revealed a pattern of poor classroom management and inadequate instruction skills.
The exception is Respondent's final assessment for her first year at Westridge, which paints a picture of competence, suggesting either that Respondent is capable of performing adequately and several times has chosen not to do for extended periods of time or incompetence on the part of the Westridge administration team, which, as noted above, experienced some changes at the top for the 2008-09 school year. On the present record, the latter is more likely than the former.
Respondent's take on her first four years employed by Petitioner is to deny any problems. Respondent attributed her placement on a PIP due the fact that the area superintendent happened to see the fight between two boys, as they were entering Respondent's class. Although Respondent may not have borne any responsibility for the fighting boys, her explanation ignores the problems that Respondent had teaching and the
declining achievement of her students, both of which amply justified placing her on a PIP. Respondent claimed that she was not invited back to one school due to the opening of a new school nearby; she did not address why she was not invited back to the second school. Her complaint that the Westridge administration offered her little support during the PIP, when compared to the support she later received at Freedom High School, is plausible, although it misses the distinction between a PIP and a Probationary Performance Plan, which, as noted below, she was on while working at Freedom, but not while working at Westridge.
For obvious reasons, but pursuant to a mechanism that is not clearly described in the record, Respondent did not return to Westridge for the 2009-10 school year and found a job instead at Freedom High School. Respondent claims that she could not secure an appropriate placement due to surgery that immobilized her for much of the summer of 2009. For whatever reason, the only available job for Respondent for the 2009-10 school year was teaching reading to six classes of 11th-grade students, most of whom had failed the FCAT. Although certified in K-12 reading, Respondent was uncomfortable teaching high school reading, so, when she learned of her new assignment, she told district staff that she had never taught high school. District staff told Respondent that this was the only available
opening, and, if Respondent did not want the job, she could look around on her own for a teaching job.
Perhaps because of the composition of the classes and the urgent need to assist these students to pass the FCAT when they retook it, Respondent's reading classes at Freedom were highly structured. On Mondays and Tuesdays, she took her students to the computer lab, where they worked on Reading Plus, which is a computer-assisted reading program that diagnoses a student's reading level and, using this information, customizes instruction for that student. The program is designed to develop eye coordination, provide guided reading, increase reading fluency, and expand vocabulary and comprehension.
On Wednesdays and Fridays, Respondent taught her class using the Edge program, which is an integrated language-arts textbook that provides about 14 teaching modules, weekly lessons, and built-in student assessments. On Thursdays, Respondent delivered differentiated instruction to groups of students based on ability and interest levels.
Although far from self-executing, this highly structured reading curriculum reduced demands on Respondent in terms of what to teach and even how to teach. On Mondays and Tuesdays, she mostly had to supervise the students while they worked on their reading at computers. On Wednesdays and Fridays, Respondent had more latitude in delivering instruction,
but still relied substantially on the Edge instructional materials. Only on Thursdays was Respondent required to plan curriculum and deliver instruction without substantial restrictions.
Freedom also employed a reading coach, who trained Respondent on the above-described software programs, two reading-assessment programs, and an online program for grading and parental communications. The assessment programs and
components within multifunctional reading programs also provided an unusually large source of data concerning the achievement of Respondent's students.
The reading coach is an important witness. Not part of administration, the reading coach was more of a peer who worked closely with Respondent, often in Respondent's classroom while she or the reading coach taught the class. The reading coach had a unique opportunity to observe Respondent under relatively natural conditions in which Respondent would not consider herself under observation.
The reading coach observed Respondent's students in the reading computer lab. While some students were engaged, others were exploring internet sites, watching ESPN videos, playing computer games, or listening to music--all without any attempt by Respondent to redirect them. Checking the site usage reports, the reading coach found that Respondent's classes did
not make reasonable progress on the Reading Plus program, even though the reading coach kept working with Respondent to find ways to get her students back on schedule.
On August 31, 2009, the reading coach modeled appropriate teaching in Respondent's first class, co-taught with Respondent in her second class, and left Respondent to teach her third class. The reading coach was not in the classroom for the first half of the third class. When she returned, mid-way through the period, she found Respondent, struggling to operate an overhead projector, had not even begun teaching the lesson, and the classroom was in "chaos." By the time that Respondent figured out the overhead projector, there were only five minutes remaining in the period, so Respondent never taught any of the lesson. It is difficult to attribute this incident substantially to bad luck because the reading coach reported that, when co-teaching with Respondent, the reading coach had to do much more of the teaching, as Respondent did not assume her share of the teaching duties.
On another occasion, the reading coach entered Respondent's classroom and saw the students talking among themselves, off-topic, and Respondent talking over them, as though she did not care if the students were learning anything. This is startlingly similar to an observation of the assistant principal at Westridge. There is no chance that the reading
coach could have known that this was an observation of the assistant principal at Westridge. Instead, this is clear evidence of a recurring dysfunctional teaching "technique" of Respondent.
As soon as Respondent arrived at Freedom, the principal placed her on another PIP due to her failure to complete the PIP at Westridge satisfactorily. Dated August 17, 2009, the PIP includes an expected completion date of January 6, 20[10] and provides, for each of the six evaluation areas, indicators to be improved, improvement objectives, action plan/timelines, and assistance to be provided.
For example, for classroom management and discipline, the indicators include stopping misconduct, maintaining instructional momentum, and starting instruction promptly. The improvement objectives include posting and implementing a positive behavior plan, promptly stopping misconduct, and planning lessons that engage the students for the entire period. The action plan requires meeting with a school dean and attending specified meetings. The assistance includes the assignment of a mentor and weekly observations with feedback. Part of the action plan for curriculum knowledge is to attend training in Reading Plus and Edge and obtain additional training from the reading coach.
Also on August 17, 2009, the Freedom principal gave Respondent a 90-day probationary performance notice. The letter states that, pursuant to section 1012.34, Florida Statutes, Respondent had 90 calendar days, excluding school holidays and vacations, to correct the deficiencies cited in the letter.
After the principal placed Respondent on another PIP and performance probation simultaneously, he and the other administrators undertook numerous observations of Respondent in the classroom. For each observation, the observer completed a standardized observation instrument. After each observation, the observer conducted a meeting with Respondent, usually a couple of days after the observation, to go over the observation in detail and make specific recommendations.
On August 27, 2009, the principal conducted the first observation. His first negative observation was that Respondent told the class to pair up "with somebody." By failing to assign the pairings herself or use some other method to exclude socialization, she implicitly invited the students to become loud and unfocused, as they searched for friends. While reading a passage to the students--a technique endorsed by the
principal--Respondent made four errors, and the principal witnessed the students' dismissive reactions to the teacher's reading mistakes. Once the paired activity began, the principal noticed that the students began to discuss off-topic matters and
ignored Respondent's directive to read quietly. In a few minutes, 11 of the 18 students were disengaged and loudly discussing irrelevant matters--a process that would have been minimized if Respondent had established specific performance parameters, rather than left the task open-ended.
An assistant principal observed Respondent on September 2, 2009, and witnessed her respond hostilely to a student's question about the nature of a character in a reading assignment. The bell rang while Respondent was trying to sum up the classwork. As soon as the bell rang, the students started to leave the classroom, although Respondent was still addressing them.
An assistant principal observed Respondent on September 10, 2009, and noted that Respondent followed a "sound sequential order" and "stayed focused on the material." His only criticism was she used a monotone, deadpan delivery.
Another administrator observed Respondent on September 17, 2009. He noticed that her lesson objective was clearly stated on the board, and she exhibited best practices by circulating through the room to ensure that students remained focused on their assignment.
On September 21, 2009, an assistant principal observed Respondent. This class took place in the computer lab. Respondent had problems with a couple of students, but generally
performed well, circulating through the room and assisting students, as needed. The single problem was Respondent's failure to control one or two of the students, whose ongoing impudence suggested a need for an office referral.
On September 30, 2009, the principal observed Respondent. Respondent had a learning objective posted. She also used bellwork appropriately in duration and subject. The prime problem during the early part of the class was a subtle one: Respondent missed repeated opportunities to deliver instruction at a higher performance level.
On October 5, 2009, another administrator observed Respondent in the computer lab. When one student released gas audibly to gain attention, Respondent appropriately admonished him, sent him to the dean's office, and restored order within one minute.
On October 21, 2009, an assistant principal observed Respondent and noticed that she had posted the learning objective. When she assigned bellwork at the start of class, some of the students went off-task; Respondent redirected them, but was only partly successful. Eleven minutes into class, students were holding loud, off-topic conversations across the entire class, and Respondent was not attempting to redirect them. Much later into the class, more students were engaged, but at least four had not engaged for long periods of time.
On October 29, 2009, an assistant principal observed Respondent when she was teaching the Edge textbook. At the start of class, Respondent directed the students to do bellwork, but each of the students ignored her; eventually, only two of twenty students completed the assignment. When she told them to stand for the Pledge of Allegiance, six remained seated, and some talked loudly during the pledge. Respondent merely tried to talk over them and told them to stand. Respondent did not deliver the lesson very well. Many students talked among themselves, one drew, some slept, and some did other school work; yet, Respondent continued to speak, as though all were attentive. She occasionally addressed the misbehavior, but the misbehaving students ignored her, and she ignored their insubordination.
On November 6, 2009, an administrator observed Respondent and saw that she had the bellwork written on the board for the students to see as they arrived. Two students in the back were totally disengaged, but Respondent ignored them. Respondent tried to teach from the bellwork, but the class was noisy. Finally, the observing administrator sent one of the misbehaving boys in the back of the classroom to the dean's office. The administrator noted that the class was much better after the student was removed and suggested, as he had after his
previous observation, that Respondent prohibit certain students from sitting together.
On November 12, 2009, an assistant principal observed Respondent. At the start of class, Respondent told the students to sit down, but many remained standing and talking. Respondent again had some problems controlling the class. One student sneezed, and nearly every student in the room responded loudly, over the next ten seconds, with "bless you." After fumbling with the overhead projector for awhile, Respondent began teaching the lesson, ignoring four pairs of students talking or passing notes. After assigning small-group work, only ten of twenty-three students were working. After Respondent redirected the class to do their work, five minutes later, only eight students were working. By this time, Respondent's circulating through the class was ineffective because the students had seen that she did not follow through on discipline.
On December 4, 2009, the principal observed Respondent. As he walked toward the back of the room, he woke up one student whom he found sleeping in class. This was an important class devoted to performing a benchmark assessment. At the start of the test, Respondent misstated the time, shortening the students' time on this time-pressured test by four minutes. Respondent also expressed uncertainty with one procedure within the test. Respondent appropriately circulated
during the test, but failed to require the students to remove their backpacks.
On December 9, 2009, an assistant principal observed Respondent and found a lesson objective posted. Respondent started to go over the bellwork, but many students were talking. Respondent told the class that she would wait for them to become silent, but she resumed speaking before the students quieted themselves. In teaching the meaning of "contemplate," Respondent asked for antonyms. One student replied, "just do it." Respondent failed to follow up on this answer, instead shutting down the student by saying, "We'll go over it later because you're a little confused right now." Belatedly, 20 and
30 minutes into class, Respondent dealt with a student who had been continuously talking and a student who had been continuously ignoring the assignments and writing, purposelessly, in a spiral notebook. Students began to leave before the bell rang, but Respondent required them to sit down. The assistant principal noted that Respondent "is not consistent in addressing behavior, calling on students, or even collecting homework" and characterized the delivery of instruction as "poor."
On January 6, 2010, the principal and an assistant principal met with Respondent and advised her that this was the last day of the 90-day plan. The following day, they met, and
the principal informed Respondent that she had not shown adequate improvement. The principal signed a copy of the plan and checked the box that adequate improvement had not been shown. Respondent signed the plan, but immediately claimed that she did not know what she was signing. On January 13, 2010, the principal sent Respondent a brief letter stating that she had failed to correct the performance deficiencies cited in her 90- day plan, but omitting any final assessment or evaluation.
Petitioner has proved incompetency on the part of Respondent, but not willful neglect of duties. It appears that, in terms of instruction, Respondent was doing the best that she could and incorporated many of the suggestions of the observers at Freedom. And a close examination of the record reveals some successes in Respondent's classroom instruction while at Freedom. Respondent dutifully adhered to school instructional policies, such as in posting learning objectives and using bellwork and word boards, but she clearly lacked sufficient talent to elevate the classroom transactions to another level by infusing them with more concentrated, more engaged instruction.
This would be a very difficult case, if instruction were Respondent's lone shortcoming. Her uninspired teaching, despite her conscientious effort to incorporate the instructional suggestions of her observers, was eventually overwhelmed by her utter failure to manage her classroom, so
that even if she were making small instructional gains, they were offset by the deteriorating behavior of her students, as they learned over the course of four months, that Respondent would not enforce discipline in the classroom. Respondent blames her difficulties in classroom management on the nature of the students, who as FCAT-repeaters may be only intermittently motivated to perform academically, and the challenge of teaching the older students in high school. Yet, she had the same problems at one and probably two middle schools. Respondent's lack of classroom management skills is a grave, longstanding problem.
During the fall of 2009, Respondent never established her dominant role in the classroom. Habitual misbehavior was met with the same truncated array of responses that Respondent appropriately displayed in the face of isolated, minor misbehavior: circulating through the classroom, standing in closer proximity to the misbehaving student, stopping instruction until the misbehaving student refocused, and, worst of all, talking over the misbehaving students, as though ignoring them would end their misbehavior. She portrayed herself as powerless to deal with disruptive classroom behavior.
It is entirely unclear why Respondent never gathered herself together, assumed her leadership responsibilities in the classroom, and started sending students to the dean's office.
If it seems, in retrospect, that this practice would have left her, after a couple of months, teaching only three or four students, this is only because of Respondent's failure to resort in a timely fashion to more effective discipline, as she allowed the disorder in her classroom to establish itself as a fixture.
The obvious consequence of Respondent's failure to maintain classroom order is that learning was impeded and, at times, impossible. A teacher with stronger instructional skills would have found it difficult to teach effectively after abandoning his leadership duties and yielding control of the classroom to misbehaving students. Given Respondent's more modest teaching skills, instruction was nearly impossible, and students--both misbehaving and compliant--were denied the academics that they needed, urgently, if they were to pass the FCAT that they were soon to retake.
As it was, only about 32% of her students passed the FCAT retake. An acceptable passage rate for this retake was 50%. The benchmark assessment, which Respondent had difficulty administering, showed that almost none of her students was poised to make one year's progress while assigned to Respondent's classroom. These data underscore the finding of incompetency and also support a finding that Respondent failed to correct the performance deficiencies during her 90-day probationary period.
The 2009-10 contract between Petitioner and The Orange County Classroom Teachers Association (Contract) contains several relevant provisions for this case. First, it vests in the classroom teacher considerable authority to ensure that misbehaving students are disciplined. Contract, Art. VII. Although the Contract also requires a teacher to "keep order in the classroom," Art. VII.E., it also authorizes a teacher to suspend a student from her class and guarantees the teacher some role in the administrative handling of her disciplinary referrals. Art. VII.E.2.-6.
The Contract provides that any teacher may be suspended or dismissed at any time during the year, provided that the charges against him are based on, among other things, incompetence or willful neglect of duty. Contract, Art.
XII.A.2. For dismissal for "incompetence," the Contract requires certain procedures "prior to the filing of formal written charges." Art. XII.D.5. These procedures include written notification of the deficiencies, a timeframe for improvement, a set of specific recommendations for improvement, a reasonable period of time "not exceeding three teaching months" to allow for correction of deficiencies, a formal evaluation of the teacher's performance at the end of the time to correct performance deficiencies, and a meeting between the
superintendent and the teacher to summarize the results of the evaluation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 1012.34(3)(d)2.b.(II), Fla. Stat. (2009).
Section 1012.33(1)(a) provides that Respondent's contract shall authorize dismissal during the term of the contract for "just cause." Section 1012.33(1)(a) defines "just cause" to include "incompetency" and "willful neglect of duty."
Florida Administrative Code Rule 6B-4.009 defines "incompetency" and "willful neglect of duty" as follows:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to
communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
* * *
(4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Section 1012.34(3), Florida Statutes, authorizes the termination of contracts for the failure to correct performance deficiencies. Section 1012.34(1) and (2) requires each school district to develop assessment instruments for all teachers and administrators and establish procedures for school districts to follow in identifying a teacher's performance deficiencies and giving the teacher a chance to correct them. Section 1012.34(3) provides:
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:
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
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 and 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:
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.
* * *
Petitioner is required to prove the material allegations by a preponderance of the evidence. Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).
Petitioner has proved grounds for the dismissal of Respondent under just cause, in the form of incompetency, pursuant to the authority of section 1012.33, and for a failure to timely correct performance deficiencies, pursuant to the authority of section 1012.34.
Two interesting issues arise under the Contract. As noted by Respondent in her Proposed Recommended Order, the superintendent never met with Respondent. Also, the record does not appear to include a final formal evaluation or assessment of Respondent. These are contractual prerequisites for the filing of charges for the dismissal of a teacher for incompetency.
However, neither of these omissions is material.
First, the procedures followed by Petitioner substantially conformed to these requirements. Certainly, the principal may be considered a designee of the superintendent, and the numerous observations and detailed post-observation discussions that took place in the fall of 2009 may safely take the place of a final formal evaluation: by early January 2010, Respondent knew exactly what her deficiencies were in terms of instruction and classroom management--one more assessment would not add anything.
Second, even if Petitioner's noncompliance with these procedures were material, it would not preclude dismissal on the basis of section 1012.34. The basis for dismissal under this statute is not incompetency, but a failure to timely correct performance deficiencies. For this reason and due to its status as extra-contractual authority for dismissal, section 1012.34 does not require compliance with these contractual procedures.
A significant requirement for dismissal under section 1012.34, though, is a record of student achievement. Section 1012.34 assigns a prominent role, in establishing a performance deficiency, to student achievement. The first sentence of Section 1012.34(3) states that the assessment instrument must be based "primarily" on student performance. The second sentence of this subsection acknowledges that the assessment instrument is not required to be limited to student performance, but may include other criteria. Leaving no doubt, though, Section 1012.34(3)(a) states that the assessment instrument "must primarily" use student data. These provisions require no elaboration and are entirely consistent with each other: for the purpose of establishing an uncorrected performance deficiency as the basis for terminating a teacher, a school district must assess the teacher based primarily, but not exclusively, on student performance, which is measured by state tests and, where not available, local tests.
As noted above, Petitioner has met this evidentiary requirement. As a subject, reading is particularly amenable to frequent assessment of student achievement. And the technology used by Petitioner for the teaching of high school reading, at least for students who have failed the FCAT, incorporates frequent assessment of student achievement. These sources amply demonstrated inferior performance of Respondent's students while
in her classes, and, given her modest instructional skills and nonexistent classroom management skills, this poor student performance was to have been expected.
It is
RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the grounds of just cause in the form of incompetency and failing to timely correct performance deficiencies.
DONE AND ENTERED this 6th day of June, 2011, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
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 6th day of June, 2011.
COPIES FURNISHED:
John C. Palmerini, Esquire Orange County School Board
445 West Amelia Street Orlando, Florida 32801
Tobe M. Lev, Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231
231 East Colonial Drive Orlando, Florida 32801
Lois Tepper, Acting General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Dr. Eric J. Smith, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Ron Blocker, Superintendent Orange County School Board
445 West Amelia Street Orlando, Florida 32801
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 |
|---|---|---|
| Jun. 06, 2011 | Recommended Order | School Board proves incompetency, under s. 1012.33, and failure to timely correct performance deficiencies, under s. 1012.34, due largely to High School reading teacher's failure to manage classroom. |
BROWARD COUNTY SCHOOL BOARD vs DIANE HOTHAN, 10-000920TTS (2010)
PINELLAS COUNTY SCHOOL BOARD vs CURTIS BROWN, 10-000920TTS (2010)
BROWARD COUNTY SCHOOL BOARD vs DONALD TOMBACK, 10-000920TTS (2010)
BROWARD COUNTY SCHOOL BOARD vs DIANE HOTHAN, 10-000920TTS (2010)
MIAMI-DADE COUNTY SCHOOL BOARD vs RICHTER FLAMBERT, 10-000920TTS (2010)
