STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,1/
Petitioner,
vs.
JILL SMITH,
Respondent.
/
Case No. 13-3373PL
RECOMMENDED ORDER
Administrative Law Judge Lynne Quimby-Pennock conducted an evidentiary hearing in this case pursuant to section 120.57(1), Florida Statutes (2013), on February 3, 4, and 18, 2014, in Sarasota, Florida.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154
For Respondent: Melissa C. Mihok, Esquire
Kelly and McKee, P.A. Suite 301
1718 East 7th Avenue Tampa, Florida 33605
STATEMENT OF THE ISSUE
The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c), or (g), Florida Statutes
(2013),2/ and if so, what penalty should be imposed by the Education Practices Commission.
PRELIMINARY STATEMENT
On April 22, 2013, Tony Bennett, as Commissioner of Education (Petitioner), filed a two count Administrative Complaint against Respondent, Jill Smith, charging her with violating section 1012.795(1)(c) and (g). Respondent timely filed an Election of Rights form, requesting a "Formal Hearing." On September 9, 2013, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing.
Following one continuance, the hearing was noticed for February 3, 2014. Prior to the hearing date, an unopposed motion for an additional day of hearing was filed. Both parties and the undersigned were available and the additional day of February 4th was added. At the conclusion of the second day of testimony, Respondent's case had not been completed. Another day of hearing was noticed and the hearing concluded on February 18th.
Petitioner presented the testimony of Amy Archer, Stacey Cheeseman, Debbie Cohen, Hollice Derrick, Jennifer Dolciotto (f/k/a Jennifer Kelly), Kurt Hutchinson, Robin Magac, Christopher Renouf, and Lori Verier. Petitioner's Exhibits 1 through 51, including 10A and 42A, were admitted into evidence. Respondent testified on her own behalf, and presented the testimony of Joni
Allese, Mara Davenport, Thomas Gifford, Bet Kotowski,3/ and Jeanine Lalli. Respondent's Exhibits 1 through 55 were admitted into evidence.
The first four volumes of the Transcript were filed on February 24, 2014. The fifth volume (from the third hearing day) was filed on March 13th.4/ Petitioner requested additional days in which to prepare its proposed recommended order, which was granted. Petitioner and Respondent each filed their Proposed Recommended Orders (PROs) on April 23, 2014.5/ The parties' PROs have been reviewed in the preparation of this Recommended Order.
FINDINGS OF FACT
Respondent holds a master's degree in early childhood education and is a teacher certified by the State of Florida in the area of elementary education. Respondent is also certified to teach language arts and social studies in middle school.
At all times material to the allegations in this case, Respondent was employed by the Sarasota County School District (SCSD). During the 2005-2006, 2006-2007, 2009-2010, and 2010- 2011 school years, Respondent taught kindergarten at North Port Toledo Blade Elementary School (Toledo). During the 2007-2008 and 2008-2009 school years, Respondent taught first grade at Toledo. Respondent executed a professional service contract of employment for the SCSD on July 1, 2008, approximately a month before the start of the 2008-2009 school year.
In the SCSD during the applicable time, the instrument used for teacher evaluations was called the Professional Rubrics Investing and Developing Educator Excellence (PRIDE) performance evaluation system which contains a Florida Performance Measurement System (FPMS) Summative Observation Instrument, a Performance Improvement Plan (PIP) Checklist, and a PIP Classroom Instructional Level 1 & 2 form.
Utilizing the PRIDE, SCSD teachers were required to demonstrate competency in four Domains. Each domain encompassed a specific aspect of teaching: I- Creating a Culture for Learning; II- Planning for Success; III- Instruction and Assessing Student Achievement; and IV- Communicating Professional Commitment; and each domain had several subparts. During an observation/evaluation, a teacher could receive one of four ratings: accomplished, developing, needs improvement, or unsatisfactory. A teacher who receives two or more "unsatisfactory" ratings in PRIDE domains I, II, or III, could be subject to termination from the SCSD.
Following classroom observations, should a school administrator determine there are concerns regarding a teacher's performance, a PIP conference (conference) may be called. Those attending the conference are the teacher, a union representative,6/ the school's administrator(s), and a district
representative. During the conference, the school's administrator discusses the classroom observations of what was working or not working in the teacher's classroom. The PIP is fully explained to the teacher. A PIP is for teachers who have been identified by their school administrators as having some performance challenges. Its purpose is to provide confidential support via a coach to those teachers who have been identified as performing below acceptable standards. Other support services that can be provided to a teacher include: an opportunity to observe a highly effective similar classroom of students; additional professional development courses; and regularly scheduled PIP conferences to review what has been observed between each conference. The PIP goal is to assist the teacher to become an effective and efficient teacher in the classroom.
A PIP is generally established for two school years; however, it may be shortened if the teacher demonstrates improvement in the areas of concern. Once a PIP is in place, the school principal assumes the responsibility of observing and evaluating the teacher. After the conference, a coach is identified, contacted and asked to serve as the teacher's coach. As the PIP progresses, that coach and the school's principal are to provide feedback to the teacher. However, the parties decide the manner in which the feedback is to be provided. There are no set directions for when the principal must provide feedback,
except at the regularly scheduled PIP conferences. In the event the teacher's performance has not improved after having a coach and time, an administrator (or administrators) from another school may be called in to observe and evaluate the teacher.
This is to ensure that the teacher is evaluated by a neutral third party who is not part of the school's administration.
Prior to the PRIDE system, the SCSD used a different evaluation system: the Teacher Performance Appraisal System (TPAS). TPAS provided for pre- and post-observation conferences with the teachers regarding the observations. This system provided timely feedback to the teacher.
Respondent started her teaching position at Toledo in August 2005. The administrators at that time were Principal Tom Coulson and Assistant Principal (AP) Jennifer Kelly. Principal Coulson provided Respondent's evaluations during the 2005-2006 school year. Prior to any teaching observations, the administrator conducted a pre-observation meeting which was to inform the administrator of what the teacher would be doing in class. Following the observation, a post observation meeting was held to provide the teacher the opportunity to ask questions and to get clarity on any remarks made of that observation. Respondent's two appraisals for that school year were "C" for "competent." Principal Coulson retired in June 2006.
Christopher Renouf became the principal at Toledo before the 2006-2007 school year began. Principal Renouf has been employed by the SCSD for approximately 22 years. Since 2009, Principal Renouf has received annual training regarding the performance evaluation of instructional staff for the SCSD in accordance with the Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the SCSD.
Principal Renouf has evaluated approximately 550 teachers during his 19-year tenure as an SCSD administrator, however, not all of them have been through the PRIDE system. Respondent is among the teachers he evaluated using the PRIDE system.
Prior to the start of the 2007-2008 school year, Respondent was transferred from her kindergarten class to teach first grade. Respondent did not volunteer to teach first grade. Toledo's administration thought Respondent's credentials, including her certification in elementary education, her master's degree with its focus in reading, and Toledo's need for four additional teachers on the first grade team made Respondent the appropriate choice. Additionally, AP Kelly documented Respondent's "[A]bility to manage the social and emotional demands of a kindergarten classroom as referenced by comments you [Respondent] have shared and actions as documented throughout this school year."
Respondent was offered and accepted a professional service contract (PSC) at the beginning of the 2008-2009 school year. One difference between an annual teacher contract and a PSC is that a teacher on an annual contract may be non-renewed at the end of a school year without cause, while a PSC teacher must be renewed annually unless there is just cause or a failure to improve deficiencies. Additionally, the frequency of evaluation observations is different. Principal Renouf was Toledo's principal when Respondent was granted the PSC.
Respondent's evaluations during her two-year tenure in the first-grade teaching position reflected her overall competency or proficiency in teaching at the first-grade level. At the end of the 2008-2009 school year Respondent's yearly performance evaluation did not reflect any "unsatisfactory" ratings.
Prior to the start of the 2009-2010 school year, Respondent was transferred back to kindergarten. Respondent did not volunteer to return to kindergarten, but was told by AP Kelly that the move was necessary based on a student population decline at Toledo.
Respondent's kindergarten class was located in a portable building with limited space. In late September 2009, AP Kelly observed Respondent teach her kindergarten math class.
AP Kelly took notes regarding her observations. On October 7th, AP Kelly conducted another classroom observation and completed a PRIDE FPMS worksheet, which detailed some deficiencies she saw in Respondent's math class. A week later Respondent was notified of an upcoming meeting on October 23rd, to "discuss your [Respondent's] performance and offer assistance." AP Kelly identified multiple performance deficiencies. Lori Verier, a specialist in the Professional Development and Teacher Evaluation Department of the SCSD, prepared a PIP for Respondent and presented it to Respondent during the October 23rd meeting. That PIP listed the three domains of concern as follows:
DOMAIN I. CREATING A CULTURE FOR LEARNING
The teacher creates a culture for learning through building positive relationships with students. This organized safe learning environment encourages high expectations for all students and allows them to feel respected and valued.
COMPETENCY
*Establishing High Expectations for Student Learning and Work
*Creating an Environment of Respect and Rapport
Organizing the Physical Environment
*Managing Classroom Procedures
*Managing Student Behavior
STRATEGY
Provide a coach to provide assistance in areas identified for improvement.
Visit and observe master teachers. Attend Professional Development.
Read professional literature relevant to identified areas of improvement.
DOMAIN II. PLANNING FOR SUCCESS
The teacher demonstrates a deep content knowledge, aligns instructional objectives and learner outcomes with approved curriculum, and uses data to meet individual student needs.
The teacher also plans appropriate assessments and uses instructional time effectively.
COMPETENCY
*Demonstrating a Deep Knowledge of Content
*Aligning Instructional Objectives to District Curriculum and Learner Outcomes
*Using Data to Attend to Individual Student Needs
*Planning Assessments
*Determining Strategies for Meaningful/Coherent Instruction
*Using Instructional Time Effectively STRATEGY
Provide a coach to provide assistance in areas identified for improvement.
Visit and observe master teachers. Attend Professional Development.
Read professional literature relevant to identified areas of improvement.
DOMAIN III. INSTRUCTING AND ASSESSING FOR STUDENT ACHIEVEMENT
The teacher uses a variety of strategies to engage students in learning. The instruction is varied by utilizing technology, quality questioning, and discussions. The teacher creates opportunities for students to monitor their own performance while making adjustments in the instruction in order to enhance student achievement.
COMPETENCY
*Engaging Students in Learning
*Varying Instruction to Meet Student Needs
*Adjusting and Monitoring Instruction to Enhance Achievement
*Planning Interventions and/or Locating
/Utilizing resources to Increase Student Achievement and Meet Goals
STRATEGY
Provide a coach to provide assistance in areas identified for improvement.
Visit and observe master teachers. Attend Professional Development.
Read professional literature relevant to identified areas of improvement.
The placement of each asterisk was explained on the PRIDE PIP Checklist as: "If performance concerns arise, competencies identified by an asterisk* are considered essential to demonstrate the respective competency."
Principal Renouf, AP Kelly, Respondent, Respondent's union representative, and Ms. Verier attended the PIP meeting. Ms. Verier described the PIP to Respondent. Toledo's administrators shared their observations with Respondent as to what was or was not working in her classroom.
Ms. Verier advised Respondent that a confidential coach would be provided to her. The coach was to observe Respondent's classroom presentations, provide Respondent with feedback, and together they were to work on the deficiencies in Respondent's performance. Respondent and a coach were to observe another kindergarten classroom. Additionally, the coach was to share with Ms. Verier that Respondent and the coach were meeting to ensure things were happening. Scheduled PIP meetings with Respondent, Principal Renouf and Ms. Verier were set every four to six weeks to follow-up on Respondent's progress.
Principal Renouf added that the PIP was "to be clear about the areas of concern [the deficient domains identified], offer assistance, support, coaching, feedback, etcetera." Principal Renouf further stated that the "purpose of the observation is to again ultimately provide feedback and/or gather evidence." Yet he qualified his "feedback" position, by putting the entire burden on Respondent to seek him out for any feedback regarding his observations. If any PIP is an effort to assist a
teacher, the burden to share feedback rests with both the observer and the teacher.
Three days after the first PIP meeting, Principal Renouf observed Respondent's classroom presentations on October 29th. His observations included deficiencies in all three domains; however, he did not provide Respondent with
feedback until the next PIP meeting on November 23rd. Principal Renouf observed Respondent again on November 9th. Again, his observations included deficiencies in all three domains, yet he waited until the November PIP meeting to provide Respondent this feedback. Approximately a week before the 2009 winter holiday, and while Respondent was in the midst of packing her portable for a move to a permanent classroom, Principal Renouf observed Respondent again. His observations again included deficiencies in all three domains.
Continuing in 2010, Principal Renouf contacted Respondent in January to obtain Respondent's lesson plans for his review. He reviewed those plans and found them to be satisfactory. On February 9th, Principal Renouf observed Respondent's classroom again. His first February observation provided positive encouragement for Respondent's classroom environment. Respondent was now in a permanent structure and her room was no longer cluttered, but organized. Principal Renouf noted improvement in some aspects of the domain issues, but still
observed other deficiencies. Approximately 10 days later, Principal Renouf observed Respondent's classroom, and noted that the class instruction did not begin on time; the class objectives were posted, but not followed; the classroom was not prepared; the procedures were not clear; the rules were not clear or reinforced; the discipline plan was posted but there was little or no follow through; and there was no connection from one activity to the next, to name a few.
Principal Renouf noted that Respondent's students were making gains in some tested educational categories. And at times, Principal Renouf saw some improvement in the domain areas. But overall, Respondent did not carry those improvements forward.
Ms. Derrick was employed as a specialist in professional development for the SCSD during the 2009-2010 school year. Ms. Derrick has an elementary education background and served as Respondent's coach during the 2009-2010 school year. Ms. Derrick was provided Respondent's PRIDE Rubrics form which reflected Respondent's areas of concern. Ms. Derrick was to depend on Respondent to provide her with Principal Renouf's feedback following his observations. However, Ms. Derrick did not get any feedback, as Respondent did not receive any feedback from the principal, until the second PIP meeting.
Ms. Derrick did not meet with Principal Renouf,
AP Kelly or the union representative to discuss Respondent's
challenges. As a coach on numerous occasions, it was her practice to observe Respondent to see what was missing and to then offer different ideas that Respondent could implement.
Although Principal Renouf observed Respondent three days after the initial PIP meeting, he failed to provide Respondent with any additional feedback until almost a month later.
Ms. Derrick observed Respondent approximately 15 times from October 2009 to March 2010. Ms. Derrick provided books, ideas, and suggestions for Respondent to implement in her classroom to address the three domain competencies. However, at the end of her coaching, Ms. Derrick never saw the requisite consistency in Respondent's classroom management.
As part of the PIP process, a different principal observed Respondent on three separate occasions in April 2010. Robin Magac, the principal at Gulf Gate Elementary School, made one announced and two unannounced observations of Respondent's classroom during her teaching time. Ms. Magac observed Respondent to be unsatisfactory in two sections of Domain II (demonstrating a deep knowledge of content and using data to attend to individual student needs), and one section in Domain III (varying instruction to meet student needs), and indicated that Respondent "needs improvement" in all the remaining sections of Domains I, II, and III.
Respondent's "Final" April 2010 revised PRIDE evaluation for her classroom instruction indicated she was "unsatisfactory" in two sections of Domain I (creating a culture for learning), three sections of Domain II, and two sections in Domain III. The remaining sections of Domains I, II, and III were marked "needs improvement." Respondent made improvements in some of the previously marked deficiency areas.
Respondent's PIP continued in the 2010-2011 school year. Respondent was given a different coach, yet the PIP goals remained the same despite her improvement in some areas. In early November 2010, in accordance with the second year of the PIP, Principal Renouf evaluated Respondent's teaching and classroom management, and found it to be unsatisfactory. Based on that evaluation, the SCSD instituted a 90-day Educator Support Panel (ESP).
The ESP was formed and first met in November 2010. The ESP included Ms. Verier; Respondent's union representative; another elementary teacher, Stacey Cheeseman; another administrator, Debbie Cohen; Respondent's new coach; and Respondent. The ESP met four separate times to share updates with Respondent and each other to avoid sending Respondent conflicting messages. During this 90-day period, Principal Renouf was not permitted to observe Respondent, in order to allow
the ESP to provide additional support, feedback and guidance to Respondent.
Ms. Cohen, an assistant principal in Sarasota County, was asked to serve on Respondent's ESP. Ms. Cohen went into Respondent's classroom twice in the Fall of 2010 to observe and provide Respondent feedback. After her first observation,
Ms. Cohen was concerned about unruly student behavior and the quality or level of instruction being given. During the second observation, Ms. Cohen noted some improvement in Respondent's classroom management and felt encouraged that some progress was being made. However, Ms. Cohen still had concerns about the level of instruction for the students. In late January 2011, Ms. Cohen again observed Respondent's classroom and was disappointed that the improvement she had seen in the fall was gone. Ms. Cohen remained concerned about the level of instruction for the students. After each observation, Ms. Cohen met with Respondent to discuss the observation and to provide recommendations for strategies that Respondent could try.
Overall Ms. Cohen was concerned about Respondent's inability to effectively manage her classroom.
Ms. Cheeseman is a Sarasota County classroom teacher who was also part of Respondent's ESP. Ms. Cheeseman observed Respondent on three separate days during the 2010-2011 school year. After each observation, Ms. Cheeseman met with Respondent
and offered suggestions as to how Respondent could improve.
Ms. Cheeseman did not provide an evaluation as she was not qualified to do so. Additionally, Respondent and her new coach observed Ms. Cheeseman's kindergarten class.
Following the 90-day period, Principal Renouf observed Respondent three times in March 2011. Principal Renouf found Respondent's teaching and classroom management unsatisfactory.
As another means to ensure evaluation consistency, two independent evaluators were selected by the Teacher's Union to conduct evaluations of Respondent. Each evaluator was given a time-frame in which to conduct three separate observations/evaluations of Respondent.
Ms. Archer, an SCSD principal, was asked to be one of the independent evaluators for Respondent. Ms. Archer, who has been trained to conduct observations and make assessments of teachers, conducted three separate observations of Respondent in March 2011. Based on her three observations, Ms. Archer found Respondent was unsatisfactory in a number of the domains as noted in Respondent's PIP. Ms. Archer found that Respondent was not an effective teacher.
Kurt Hutchinson, an SCSD principal, was asked to be one of the independent evaluators for Respondent. Mr. Hutchinson conducted three separate observations of Respondent in March 2011. Based on his three observations, Mr. Hutchinson found
Respondent was unsatisfactory in a number of the domains as noted in her PIP. Mr. Hutchinson found that Respondent was not an effective teacher.
Respondent received the feedback that was given in a timely manner and attempted to make the requisite teaching adjustments. She did not want to return to teach kindergarten in 2009, but did so. At the start of the 2009 school year she was housed in a portable with limited space and had to store her materials. When Respondent's class moved into the main building, that element of concern dropped off her domain. Respondent has never been disciplined nor had any parents complain about her performance. Respondent established high expectations for her students and worked to ensure her student's success. There was no evidence presented that any of her 2009-2010 or 2010-2011 students were held back because of academic or social issues. Following her SCSD resignation, Respondent worked in two educational settings. Currently, Respondent is working in a non- educational setting.
On April 1, 2011, the SCSD Superintendent issued a letter to Respondent indicating her intention to seek to terminate Respondent's employment as a Sarasota County teacher effective June 30, 2011. Shortly thereafter, Respondent resigned her teaching position. On April 20, 2011, this resignation was
acknowledged as having been accepted by the SCSD at its April 19th meeting.7/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1).
This is a proceeding to discipline Respondent's educator certificate. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d
292 (Fla. 1987).
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Administrative Complaint alleges the following:
During the 2009-2010 and 2010-2011 school years, the Respondent failed to carry out the
duties of a teacher as required by her employing school district. Specifically:
the Respondent failed to properly manage student behavior and maintain an appropriate classroom environment;
the Respondent failed to deliver appropriate and effective instruction;
the Respondent failed to create and implement effective lesson plans; and
the Respondent failed to effectively assess student learning and vary instruction to meet student needs.
On or about April 14, 2010, the Respondent's instructional performance was evaluated by a school district administrator. The Respondent was rated as "Needs Improvement" in 7 areas: Creating an Environment of Respect and Rapport, Managing Student Behavior, Demonstrating a Deep Knowledge of Content, Aligning Instructional Objectives to District Curriculum and Learner Outcomes, Determining Strategies for Meaningful/Coherent Instruction, Varying Instruction to Meet Student Needs, and Adjusting and Monitoring Instruction to Enhance Achievement. The Respondent was rated as "Unsatisfactory" in 7 areas: Establishing High Expectations for Student Learning and Work, Managing Classroom Procedures, Using Data to Attend to Individual Student Needs, Planning Assessments, Using Instructional Time Effectively, Engaging Students in Learning and Planning Interventions and/or Locating/Utilizing Resources to Increase Student Achievement and meet Goals.
On or about March 18, 2011, the Respondent's instructional performance was evaluated by a school district administrator. The Respondent was rated as "Needs Improvement" in four areas: Creating an
Environment of Respect and Rapport, Demonstrating a Deep Knowledge of Content, Aligning Instructional Objectives to District Curriculum and Learner Outcomes, and Varying Instruction to Meet Student Needs. The Respondent was rated as "Unsatisfactory" in
10 areas: Establishing High Expectations for Student Learning and Work, Managing Classroom Procedures, Managing Student Behavior, Using Data to Attend to Individual Student Needs, Planning Assessments, Determining Strategies for Meaningful/Coherent Instruction, Using Instructional Time Effectively, Engaging Students in Learning, Adjusting and Monitoring Instruction to Enhance Achievement, and Planning Interventions and/or Locating/Utilizing Resources to Increase Student Achievement and meet Goals.
On or about April 1, 2011, the Sarasota County School District notified the Respondent of its intention to terminate her employment.
On or about April 19, 2011, the Sarasota County School Board terminated the Respondent's employment.
The Respondent is in violation of Section 1012.53(2) Florida Statutes, in that Respondent failed to perform duties prescribed by rules of the district school board.
Petitioner proved the allegations in paragraphs 3 through 6, and 8 by clear and convincing evidence. With respect to paragraph 7, Petitioner presented a letter that the SCSD notified Respondent of its intention to terminate Respondent's employment. The letter introduced into evidence reflects that Respondent's resignation letter was accepted by the SCSD on April 19, 2011.
Based upon these facts, Petitioner alleged that Respondent violated section 1012.795(1)(c) and (g), Florida Statutes. Those subsections provide:
(1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
* * *
(c) Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.
* * *
(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
Section 1012.796, which describes the disciplinary process, provides in pertinent part:
Upon a finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall make recommendations in accordance with the provisions of subsection
to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.
A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
Denial of an application for a teaching certificate . . . .
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.
Placement of the teacher on
probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, . . . to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. . . .
Restriction of the authorized scope of practice of the teacher . . . .
Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.
Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently. . .
The Commission has adopted a rule which defines the term "incompetency." At the time of the events giving rise to this case, the rule was Florida Administrative Code Rule 6B- 4.009.8/ The rule provides in pertinent part,
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 . . . ;
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.
(b) 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.
Petitioner has proven Count 1, a violation of section 1012.795(1)(c), by clear and convincing evidence. While no panel of experts was presented by the Commissioner, the decision to use such a panel is discretionary, not mandatory. The conduct demonstrated in this case showed a repeated failure to create a culture of learning, a plan for success, and the lack of instructing and assessing students achievement in Respondent's classroom. Respondent received significant help and support via the PIP. Respondent's failure to improve following multiple observations with feedback containing suggestions from other educators is troubling. While her principal failed to provide feedback in a manner that would have served Respondent more effectively, her coaches and the ESP provided significant help and support.
Petitioner has not proven Count 2, a violation of section 1012.795(1)(g), by the same evidentiary standard. In order to support a violation of section 1012.795(1)(g), a teacher that has been found to be incompetent is, by definition, a teacher whose effectiveness as an employees is seriously reduced.
However, section 1012.795(1)(g) ties the reduction of effectiveness to personal conduct of the teacher, not the inability to perform his or her teaching responsibilities. In any event, Respondent's unsatisfactory performance is adequately addressed by section 1012.795(1)(c).
The Commission has adopted disciplinary guidelines for the discipline of instructional personnel, providing a range of penalties normally imposed for violations of section 1012.795. Fla. Admin. Code R. 6B-11.007. For a violation of section 1012.795(1)(c), the recommended penalty range is suspension to revocation. Rule 6B-11.007(2) also provides that "[e]ach of the following disciplinary guidelines shall be interpreted to include "probation," "Recovery Network Program," "letter of reprimand," "restrict scope of practice," "fine," and "administrative fees and/or costs" with applicable terms thereof as additional penalty provisions."
Petitioner recommends revocation for a period of time deemed appropriate by the Education Practices Commission as appropriate.
After a thorough review of the evidence, it is concluded that, should Respondent be willing to make the effort, she may be able to return to the teaching profession given substantial retraining and professional development. While there are clear deficiencies in her performance, Respondent has
maintained a positive attitude. The undersigned has reviewed the list of mitigating factors in the disciplinary guidelines.
Revocation would remove her ability to teach at any level. See
rule 6B-11.007(3)(i), (j), and (l).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(d), Respondent be placed on probation for a period of at least three years with such conditions as the Education Practices Commission may specify.
DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida.
S
LYNNE A. QUIMBY-PENNOCK
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 May, 2014.
ENDNOTES
1/ Pam Stewart is the current Commissioner of Education.
2/ All statutory references are to Florida Statutes (2013), unless otherwise indicated.
3/ In order to accommodate two out-of-town witnesses for Respondent, Mr. Gifford and Dr. Kotowski were heard out of order on February 4th over the objection of Petitioner.
4/ The page numbering for the fifth volume of the Transcript did not coincide with the pages provided in the PROs. The page numbering of volume five of the Transcript filed with the Division started with the number "1" however, it appears from citations in the PROs, that the parties' fifth volume of the Transcript was numbered in continuation to the first four volumes.
5/ Petitioner's PRO reflected an incorrect DOAH case number; however, Respondent's name was listed, and the Findings of Fact and Conclusions of Law referenced Respondent in this Recommended Order.
6/ If the teacher is a member of the union and wants a representative present.
7/ The agenda from the SCSD meeting of April 19, 2011, reflects that Respondent's resignation letter and the SCSD letter of intent to terminate Respondent's employment were both on the agenda.
8/ Effective July 8, 2012, the rule was amended and transferred to rule 6A-5.056.
COPIES FURNISHED:
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154
Melissa C. Mihok, Esquire Kelly and McKee, P.A. Suite 301
1718 East 7th Avenue Tampa, Florida 33605
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education Turlington Building, Suite 224
325 West Gaines Street Tallahassee, Florida 32399-0400
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1224
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 17, 2014 | Agency Final Order | |
| May 23, 2014 | Recommended Order | Petitioner demonstrated by clear and convincing evidence that Respondent violated section 1012.795(1)(c). Recommended three year probation with conditions to be decided by the Education Practices Commission. |
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs CYNTHIA B. FOY, 13-003373PL (2013)
MIAMI-DADE COUNTY SCHOOL BOARD vs PAMELA KAY PORTILLO, 13-003373PL (2013)
BROWARD COUNTY SCHOOL BOARD vs DOROTHY D. CLEMONS, 13-003373PL (2013)
BROWARD COUNTY SCHOOL BOARD vs KATHLEEN FINNERTY, 13-003373PL (2013)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs DONNA BURNEY, 13-003373PL (2013)
