BROWARD COUNTY SCHOOL BOARD,
Petitioner,
vs.
DAVID R. MANSET,
Respondent.
/
Case No. 20-3492TTS
RECOMMENDED ORDER
This case came before Administrative Law Judge John G.
Van Laningham, Division of Administrative Hearings (“DOAH”), for final hearing by Zoom teleconference on November 17, 2020.
APPEARANCES
For Petitioner: Andrew Carrabis, Esquire
Broward County School Board
600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
For Respondent: Robert F. McKee, Esquire
Robert F. Mckee, P.A.
1718 East 7th Avenue, Suite 301
Tampa, Florida 33605
STATEMENT OF THE ISSUE
The issue is whether the district school board has just cause to dismiss one of its elementary school teachers for just cause during the term of his professional service contract, based upon the teacher’s having received three consecutive annual performance evaluation ratings of Needs Improvement.
PRELIMINARY STATEMENT
On June 24, 2020, Petitioner Broward County School Board (the “School Board” or “District”) issued an Administrative Complaint against Respondent David R. Manset (“Manset”), charging Manset with the disciplinable offense of having received three consecutive annual performance evaluation ratings of Needs Improvement, which, under section 1012.33(1)(a), Florida Statutes, constitutes just cause for dismissal during the term of a teacher’s professional service contract.
Manset timely requested a formal administrative hearing. By letter dated August 6, 2020, the School Board referred the matter to DOAH for further proceedings. Upon assignment, the undersigned set the final hearing, which took place on November 17, 2020.
At the final hearing, the District called as witnesses Heather Thomson- Parente, Michelle Garcia, Cynthia Woods, Dawn McMahan, Richard Baum, and Diego De Rose. Petitioner’s Exhibits 1 through 47 were received in evidence without objection. Manset testified on his own behalf and offered Respondent’s Exhibits 1 through 6, which were admitted without objection.
The final hearing transcript was filed on December 9, 2020. Each party timely filed a Proposed Recommended Order, and these submissions were considered in the preparation of this Recommended Order.
Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes 2020, except that all references to statutes or rules defining disciplinable offenses or prescribing penalties for committing such offenses are to the versions that were in effect at the time of the alleged wrongful acts.
FINDINGS OF FACT
The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Manset’s employer.
During the three school years at issue, from 2015 to 2018, Manset taught second grade at Oakland Park Elementary School (“Oakland Park”), which had been his work location since November 2012. Manset had started teaching in the District in August 2003.
This case arises from the District’s decision not to reinstate Manset to his former teaching position upon Manset’s return, in 2020, from an approved, two-year leave of absence. As grounds for this decision, the District relies upon the “three-strikes rule” prescribed in section 1012.33, which
(i) makes it a disciplinable offense, referred to herein as “Poor Ratings,”1 for a teacher to be given three consecutive annual performance ratings of less than Effective, thereby subjecting the guilty party to dismissal for “just cause” during the term of his or her employment contract; and (ii) authorizes a district school board not to renew the professional service contract (“PSC”)— after the end of said PSC’s one-year term—of a teacher who has received three consecutive annual performance ratings of less than Effective.
§ 1012.33(1)(a), (3)(b), Fla. Stat.
For some background, section 1012.34 requires school districts to evaluate the performance of every teacher they employ, at least once per year. Each district must develop an “evaluation system” for this purpose, which is required to differentiate between four levels of performance: Highly
1 Other disciplinable offenses, which, if proved, constitute just cause for dismissal, include misconduct in office, gross insubordination, and willful neglect of duties. See § 1012.33(1)(a),
Fla. Stat. “Poor Ratings”—which is the undersigned’s shorthand for the full statutory definition of the offense, i.e., “three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under
s. 1012.34”—is thus comparable to, e.g., misconduct in office as a basis for terminating a
teacher’s employment.
Effective, Effective, Needs Improvement, and Unsatisfactory. § 1012.34(2)(e), Fla. Stat.
At least one-third of a teacher’s evaluation must be based upon student performance, and at least one-third upon “instructional practice.”
§ 1012.34(3)(a), Fla. Stat. Accordingly, the District uses an evaluation system in which a teacher is given a numeric score of between 1 and 4 for each of three, separately-weighted indicators of performance: Instructional Practice (“IP”)—60%, Student Performance (“SP”)—35%, and Deliberative Practice/Growth Plans (“DP”)2—5%.3 The average of the teacher’s three weighted scores equals his or her Final Score for the school year. Because the SP score takes some time to process, the teacher’s Final Score for any given year is usually not available until the fall of the next school year.
The teacher’s Final Score determines his or her level of performance according to the following scale:
Label | Highly Effective | Effective | Needs Improvement | Unsatisfactory |
Details | 3.4 – 4.0 | 2.5 – 3.399 | 2.0 – 2.499 | 1.0 – 1.999 |
The IP score, which contributes the most to a teacher’s Final Score, is based upon the firsthand knowledge of an eyewitness who has seen the teacher in action in the classroom. While observing the teacher instructing his or her pupils, an administrator, such as the principal or an assistant principal, measures the teacher’s performance against a broad menu of objective criteria, exercising judgment and discretion in determining how well the teacher is implementing best practices and strategies. Although arrived
2 The indicator DP, which is relatively insignificant given its low weight of just 5%, is basically a gimme for which most teachers receive the maximum score. Having no bearing on the outcome of this case, DP will not be discussed in depth.
3 For the 2015-2016 school year, indicators IP and DP were weighted a bit differently, at 64% and 1% respectively. This minor detail is immaterial to the instant case and, thus, will be ignored hereafter.
at through the application of objective criteria, which confine the evaluator’s discretion, the IP score is inherently a subjective, empirical assessment reflecting the evaluator’s professional opinion of the teacher’s actual performance.
The SP score, in contrast, results from a regression analysis of the scores of the teacher’s students on a standardized test or tests. The District uses a statistical model that is supposed to isolate, from the testing data, a quantum of student growth or academic achievement attributable to the teacher. The statistician(s) who determine the teacher’s student achievement quantum do so based solely upon the numbers, without seeing the teacher in action. In this sense, the SP score is objective and uninfluenced by any
individual’s subjective opinion of the teacher’s performance.
Manset received an annual performance evaluation for each of the relevant school years, namely 2015-2016 (“Year 1”), 2016-2017 (“Year 2”), and 2017-2018 (“Year 3”). His respective IP scores for each of these years were 2.809, 2.777, and 2.950, meaning that he was rated as an Effective teacher under this most telling indicator of performance.
Manset’s SP score for each of the three subject years, however, was only 1.5, which translates to a low rating of Unsatisfactory for this significant performance indicator.
Manset’s Final Scores for the years in question were as follows:
Year 1: 2.253
Year 2: 2.391
Year 3: 2.495
Based on the foregoing Final Scores, which reflect the strong downward drag of his low SP numbers (worth 35%, remember), Manset received three consecutive annual performance evaluation ratings of Needs Improvement, pursuant to the Final Score Scale (reproduced above in paragraph 6).
On or about May 16, 2018, some six months before Manset’s Year 3 Final Score would be known, when it was assumed that Manset would be
returning to Oakland Park the following year, Manset received notification that he would be recommended for reappointment as an instructional employee for the 2018-2019 school year.
Prior to the 2018-2019 school year, however, Manset requested, and was granted approval to take, personal leave without pay for a period of one year, in accordance with School Board Policy 4409. His last day of work in the District was in August 2018. After that, Manset relocated to Maryland, where he accepted a teaching position for the 2018-2019 school year. With his leave scheduled to end on June 30, 2019, Manset was required to notify the District, no later than March 1, 2019, of his plans for the 2019-2020 school year.
Manset’s Final Score for Year 3 was ready in or around November 2018. Had he not been on leave at that time, Manset would have been subject to dismissal during the term of his then-current PSC on a charge of Poor Ratings, pursuant to section 1012.33(1)(a), because his performance rating of Needs Improvement for Year 3 was the third such rating in as many years. As it happened, however, Manset was not subject to dismissal in November 2018, because he was not then working in the District.
Moreover, because Manset was on leave when his Year 3 evaluation was complete, the District elected not to provide him the Final Score (and rating of Needs Improvement) at that time. Rather, it was decided that Manset would receive his final evaluation for the 2017-2018 school year upon his return.
Manset timely notified the District that he wanted to continue his personal leave for another year. The District approved Manset’s request, which is a little curious, in light of the three-strikes rule.4 This second, one- year leave would expire on June 30, 2020. Taking advantage of this
4 No explanation for this decision was given at hearing.
additional leave of absence, Manset remained in Maryland and did not teach in the District during the 2019-2020 school year.
Before March 1, 2020, Manset timely notified the District that he would be ready to return to work after his two-year leave expired, and he asked to be reinstated for the 2020-2021 school year. Shortly thereafter, District administrators phoned Manset to inform him that he would not be permitted to return to his former position due to the three-strikes rule.
By letter dated May 27, 2020, the superintendent officially advised Manset that, under the three-strikes rule, Manset was “not to receive a contract” and, accordingly, would not be reinstated within the Broward County Public Schools. In this letter, the superintendent cited section 1012.33(1)(a) as supporting authority for his decision. He seems to have had section 1012.33(3)(b) in mind, however, which is on point with the assertion that Manset was “not to receive a contract.” As discussed below, teachers are “statutorily entitled to renewal of their PSC unless their performance [is] unsatisfactory.” Lewis v. Broward Cty. Sch. Bd., 298 So. 3d 672, 674 (Fla. 4th DCA 2020).
The parties have stipulated that Manset “is currently employed as a teacher pursuant to Section 1012.33, Florida Statutes.” JT. PRE-H’G STIP. at 10. Ordinarily, as applied to a teacher, the term “currently employed”
would be synonymous with “under contract.” There is no evidence, however, that Manset’s PSC was renewed for the 2018-2019 school year, much less for any subsequent year. Because Manset was on approved leave without pay and did not teach in the District at any time after August 2018, the undersigned infers that Manset’s 2017-2018 contract expired, leaving him without a PSC afterwards.5
5 If the District renewed Manset’s PSC for 2019-2020, then it did so with actual knowledge that he had previously received three consecutive ratings of Needs Improvement.
Manset’s undisputed status as a current employee of the District is (as far as the evidence shows) a function of the personal leave that he took, not the result of his holding an unexpired PSC.6 Consequently, despite the fact that Manset is still a District employee, the undersigned cannot find, as a matter of fact, that the District is seeking to dismiss Manset during the term of his contract, because his last contract’s term expired sometime in 2018.
On June 24, 2020, the District issued an Administrative Complaint against Manset, predicated on a charge of Poor Ratings. The District seeks, pursuant to the complaint, to terminate Manset’s employment for just cause.
In his defense to the Poor Ratings charge, Manset disputes the validity of the SP score that he received for Year 1, but otherwise does not contest the IP and SP scores he was awarded for the years in question. His main argument, in brief, is that the Needs Improvement rating for Year 1 should be tossed out due to the allegedly faulty SP score, thereby compelling the ultimate determination that Manset, having been given only two, substantively true consecutive ratings of Needs Improvement, is not guilty of Poor Ratings.
The facts forming the basis of Manset’s objection to his Year 1 SP score are straightforward and not disputed. In February 2016, Manset was injured in an automobile accident and could not work for more than two months. He was on approved sick leave for ten weeks starting February 20, 2016. Thus, as a result of the car crash, Manset missed 50 days of class out of a total of 166—or 30% of the school year. Looked at another way, Manset was absent (with permission) from his classroom for 60% of the spring semester.
6 If Manset had lost his status as an employee by taking leave, then he would have needed to be rehired (as opposed to reinstated) upon his return, costing him the right to a PSC. See
§ 1012.335, Fla. Stat. No one has suggested that that happened. On the contrary, but for the three-strikes rule, Manset doubtless would have received a new PSC when he returned from leave because, under Policy 4409, he was (and, as this is written, still is) employed by the District, albeit without a current contract.
During most of Manset’s absence, his second-grade class was taught by a “pool sub,” i.e., a substitute teacher who worked only at Oakland Park and reported to that campus every day. The pool sub was in Manset’s classroom for approximately 30 days. Regular certified substitute teachers covered the balance.
The regression analysis that the District uses to compute a teacher’s SP score does not factor in the contributions of substitute teachers as a predictor variable. Consequently, Manset’s SP score for Year 1 necessarily reflects the positive or negative impact, if any, that the substitute teachers (especially the pool sub) had on student growth or achievement. Manset argues, in effect, that his SP score for that year is, for that reason, unreliable and invalid, making his Year 1 Final Score untrustworthy and incapable of supporting a Poor Ratings charge.
CONCLUSIONS OF LAW
Based upon the fact that Manset does not currently hold a PSC, the undersigned concludes that the District lacks jurisdiction, under sections 1012.33(1)(a) and 1012.33(6)(a), to charge Manset with Poor Ratings (or any other disciplinable offense) as grounds for a just-cause dismissal, and consequently that DOAH is without subject matter jurisdiction to entertain a hearing on the instant Administrative Complaint. The undersigned, accordingly, will recommend that the School Board dismiss the Administrative Complaint for want of jurisdiction. For reasons explained below, however, the undersigned will take up the merits nevertheless, recommending an alternative disposition based upon the assumption that jurisdiction lies.
The jurisdictional defect is a product of the statute’s plain language. Section 1012.33(1)(a) provides as follows:
Each person employed as a member of the instructional staff in any district school system shall
… receive a written contract as specified in this section. All such contracts … 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: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
(Emphasis added.)
Subsection (6) echoes the condition that dismissal be initiated during the term of a teacher’s contract:
Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a).
§ 1012.33(6)(a), Fla. Stat. (emphasis added).
The statute is clear and unambiguous concerning when a district school board may exercise its authority to dismiss a teacher for good cause. It may do so “at any time during the term of the [teacher’s] contract.” In this regard, section 1012.33(6)(a) is analogous to section 120.56(3)(a), which provides that a “petition alleging the invalidity of an existing rule may be filed at any time during which the rule is in effect.” Under the plain language of section 120.56(3), which resembles that of section 1012.33(6)(a), DOAH is without jurisdiction to hear a challenge to a rule that is no longer in existence because, e.g., it has been repealed. Dep’t of Rev. v. Sheraton Bal Harbour
Ass’n, Ltd., 864 So. 2d 454 (Fla. 1st DCA 2003). By like reasoning, DOAH is without jurisdiction to hear a just-cause dismissal proceeding against a teacher whose contract is no longer in existence.
Of course, as a general rule, only those teachers whose contracts remain in force and effect are subject to dismissal from employment.
Manset’s circumstances are exceptional due to the length of the personal leave he took and its timing in relation to his receipt of a third consecutive performance rating of Needs Improvement. Manset is that odd instructional employee without a current contract. The upshot is that, because Manset doesn’t have a contract, he cannot be dismissed during the term of the contract for just cause.
This does not mean that the District must reinstate Manset. To the contrary, Manset’s reinstatement is in jeopardy under the plain language of section 1012.33(3)(b), which provides in relevant part as follows:
(3) A professional service contract shall be renewed each year unless:
* * *
(b) The employee receives … three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34.
Nonrenewal under subsection (3)(b) effectively separates the teacher from his or her employment with a school district, to be sure, but the nonrenewal of a PSC is not a disciplinary action.7 Unlike a dismissal for just cause pursuant to subsection (1)(a), moreover, which must be carried out following the procedure prescribed in subsection (6), a subsection (3)(b) nonrenewal does not trigger a right to a hearing under section 1012.33. While
7 The Department of Education must be notified when a teacher’s contract is not renewed. See § 1012.34(5), Fla. Stat. This could lead to the bringing of disciplinary charges against the teacher pursuant to section 1012.795. Id.
subsection (6)(a)2. specifically authorizes DOAH to conduct a hearing when a teacher disputes his or her termination for just cause, there is no language in section 1012.33 conferring jurisdiction upon DOAH to conduct a hearing to determine whether a teacher’s PSC should be renewed.
Be that as it may, the question of whether Manset has an administrative remedy to contest nonrenewal under subsection (3)(b) need not be decided in this case, because the intended action presently before the undersigned involves Manset’s disciplinary dismissal for just cause pursuant to section 1012.33(1)(a).
The bottom line is that neither the District nor DOAH is authorized to conduct proceedings to dismiss a teacher for just cause, unless the charges are made against the employee during the term of his or her contract. The Administrative Complaint against Manset was not issued during the term of his PSC. Therefore, the District should dismiss the complaint for lack of jurisdiction. Such a dismissal, which does not reach the merits, will be without prejudice to the respective rights and obligations of the parties under section 1012.33(3), and any other applicable laws, should the District subsequently elect not to provide Manset a new PSC.8
Having decided that DOAH lacks subject matter jurisdiction in this matter, the undersigned should refrain from addressing the merits, which he is not empowered to decide; ordinarily, that is what he would do. Here, however, the parties stipulated that Manset is currently employed, and neither side has questioned DOAH’s jurisdiction to hear this case. Moreover, although it is reasonable to infer, as the undersigned has done, that Manset does not currently hold a PSC during whose term this action was commenced, there is no direct evidence of this fact. While it seems most likely that Manset does not currently hold an unexpired PSC, the undersigned would be unfazed to learn of facts outside the record, which show that he does; for one, it would
8 See Arison Shipping Co. v. Hatfield, 352 So. 2d 539, 540 (Fla. 3d DCA 1977)(“dismissal for lack of subject matter jurisdiction is not an adjudication on the merits”).
explain why the parties have paid no attention to the issue.
Therefore, the undersigned will assume, for argument’s sake, that DOAH has jurisdiction and, on that basis, make a determination on the merits, together with a recommendation that the School Board adopt this alternative disposition if, in fact, Manset currently holds a PSC whose term is running.
A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific
charges prior to the hearing. Although the notice “need not be set forth with
the technical nicety or formal exactness required of pleadings in court,” it
should “specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation.” Jacker v. Sch. Bd. of Dade Cty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).
Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated. See Lusskin v. Ag. for Health Care Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep’t of Ins.,
685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep’t of Bus. & Prof’l Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dep’t of Prof’l Reg., Bd. of Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den., 576 So. 2d 295
(Fla. 1991).
In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas Cty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993).
The instructional staff member’s guilt or innocence is a question of
ultimate fact to be decided in the context of each alleged violation. McKinney
v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
In its Administrative Complaint, the District charged Manset with Poor Ratings and several other offenses, which are bootstrapped to the performance evaluations and depend upon Manset’s being found guilty of Poor Ratings. In other words, if Manset is not guilty of Poor Ratings, then he is also not guilty of any other charge brought against him in the Administrative Complaint. Conversely, if Manset is guilty of Poor Ratings, then the other charges are superfluous, if not multiplicitous, because the offense of Poor Ratings, if proved, provides just cause for dismissal by itself. Accordingly, the undersigned will focus solely on the charge of Poor Ratings.
Manset’s defense is premised on the notion that, as he puts it, “if any one of the three ‘needs improvement’ evaluations is found to be without a sufficient basis, then the three-strike rule will not apply.” RESPONDENT’S PRO at 8. In Manset’s view, this proceeding affords him the opportunity to contest the “truth” of any or all of his Needs Improvement ratings, presumably by showing either that he was, in fact, deserving of an Effective (or better) rating for one or more of the three years at issue, or, alternatively, that one or more of the subject ratings are legally or factually insufficient and hence should be invalidated.
For its part, the District expended considerable energy at hearing attempting to prove the reliability and accuracy of the performance ratings assigned to Manset. That is, the District sought to prove not only that Manset had received three consecutive ratings of Needs Improvement, but also to establish that Manset is not, in fact, an effective teacher. In this way, the District acceded, at least tacitly, to the idea that it needed to prove the truth of the matters asserted in Manset’s evaluations.
The parties have misinterpreted the nature of the Poor Ratings offense. As defined by the plain language of section 1012.33(1)(a), the offense consists of receiving three consecutive, less-than-efficient evaluation ratings, not the act of committing less-than-efficient teaching for three consecutive years. Thus, the annual performance evaluations are not proof of an element; they are an element—really the element—to be proved. The charge of Poor Ratings requires proof only of the ratings’ existence. That the existing ratings are true, which is a separate issue, need not also be proved.
In this respect, Poor Ratings is like the disciplinable offense of being convicted of certain crimes, which constitutes grounds for penalizing licensees under many practice acts, including the Education Code. For example, under section 1012.795(1)(f), the Education Practices Commission (“EPC”) may suspend or revoke the educator certificate of any teacher who has “been convicted or found guilty of, has had adjudication withheld for, or has pled guilty or nolo contendere to a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.” If a teacher has been convicted of a felony, then the EPC may impose discipline against the certificate upon proof of the felony conviction; it is not necessary to prove, in
addition, that the teacher committed the crime, as a matter of historical fact. This is because, as the statute defines the offense, a conviction is not just some proof of a fact material to the charge; it is the material fact to be proved. The certificate holder might believe that he was wrongly convicted because of ineffective representation, prosecutorial misconduct, civil rights violations, or any number of reasons. Maybe he knows he pleaded no contest to a crime he is certain he didn’t commit, as an expedient to avoid the risk of imprisonment or financial ruin. None of this is relevant, even if what the teacher believes is provably true. The administrative charge neither requires, nor allows, the parties to “go behind” the conviction: the mere fact of the conviction is the offense.
As for performance evaluations, the time to challenge the validity of a Needs Improvement rating, if such a rating may be challenged, would be before the teacher racks up three such ratings in a row.9 Once the teacher has received three consecutive Needs Improvement ratings, the elements of the offense are met, regardless of whether, in fact, the teacher “deserved” a higher rating in one or more of those years. While this might seem harsh or unfair, section 1012.33 says what it says. See Gabriele v. Sch. Bd. of Manatee Cty., 114 So. 3d 477, 482 (Fla. 2d DCA 2013)(Weighing possible disadvantages to teachers resulting from the pertinent language of section 1012.33 is “for the legislature, not the courts.”). From the employer’s standpoint, moreover, three years probably seems like plenty of time for an employee who receives a Needs Improvement performance rating to step up his game. After all, a teacher who can manage to avoid either back-to-back or two-out-of-three Unsatisfactory ratings needs to garner only one rating of Effective every three years to avoid termination on the grounds of Poor Ratings.
Section 1012.33(3)(b) reinforces the foregoing plain-language reading of subsection (1)(a), because it authorizes, if not requires, a district school board not to renew a teacher’s PSC for the same reasons that support a Poor Ratings charge. Notably, however, as previously mentioned, no right to a hearing to contest the nonrenewal of a contract on performance evaluation- ratings grounds is expressly made available under section 1012.33. Because of this, nonrenewal of a teacher’s contract is a relatively low-cost solution to
9 Section 1012.34(4) requires that a teacher who receives an Unsatisfactory rating be given notice and an opportunity to correct identified deficiencies during a 90-day performance probation. The applicable procedure is spelled out in detail in subsection (4), and it includes the right to a formal administrative hearing if the teacher wishes to contest a recommendation that his employment be terminated for failure to correct the noted performance deficiencies. Based upon the statute’s plain language, this procedure is (probably) not implicated when a teacher receives a rating of Needs Improvement, but the issue need not be decided here because this case arises from the District’s Administrative Complaint, not Manset’s request for a hearing on his Year 1 (or any other) evaluation.
the problem of persistent, poor ratings, as compared to a dismissal for just cause, which clearly entitles the teacher to a hearing.
To repeat for emphasis, even with the truth of the evaluations being irrelevant to a charge of Poor Ratings, bringing about a just-cause dismissal is more burdensome than not renewing a PSC on grounds of poor ratings, because of the teacher’s right to a hearing to contest dismissal. If, in proving a Poor Ratings charge in support of a just-cause dismissal, a school district were obligated to prove (or defend) the substantive validity of the underlying evaluations, then the resulting, wide disparity between the effort needed to dismiss a teacher pursuant to subsection (1)(a) and that required not to renew his or her contract under subsection (3)(b) would provide a strong disincentive to midyear dismissals. Were that the law, most districts, rather than incurring the burden and expense of proving up the evaluations, presumably would simply wait until the end of the contract term, at which point the teacher could be released via the far easier method of nonrenewal. The downside of that approach, however, is that the students pay the price, because the poorly rated teacher remains in the classroom for a longer period of time.
Section 1012.33(6), which prescribes the administrative procedure for just-cause dismissals under subsection (1)(a), makes it clear that the Legislature specifically considered remedies when it enacted this statute. Therefore, if the Legislature had intended to make an administrative remedy available to teachers whose contracts are not renewed pursuant to subsection (3)(b), then it almost certainly would have done so explicitly in section 1012.33. Cf. Gabriele, 114 So. 3d at 482 (“We cannot overlook [section 1012.33]’s disparate treatment of teachers under continuing contracts and teachers under professional service contracts.”). Further, if the Legislature had contemplated that, in a just-cause dismissal for Poor Ratings under subsection (1)(a), the substantive validity of the evaluations would be fair game for de novo review, making such cases harder for the school district to
win, then it likely would have made an administrative remedy available in section 1012.33 for subsection (3)(b) nonrenewals. Without such a remedy to “balance” the two subsections, subsection (3)(b) would exist as an irresistible loophole. Instead of prosecuting dismissal proceedings they might lose, school districts would gravitate towards the no-lose option of using nonrenewals to remove poorly rated teachers, to the detriment, sadly, of students who might otherwise be assigned better teachers sooner if the poor ones were replaced immediately. That the Legislature did not create a specific remedy for contesting subsection (3)(b) nonrenewals suggests both that no such remedy was intended and that just-cause dismissals for Poor Ratings were not meant to become vehicles for challenging or establishing the validity of the underlying performance evaluations.
Manset has raised questions about the validity of his Year 1 rating of Needs Improvement that, although unavailing as a legal defense, nevertheless deserve to be taken seriously. The District has not persuasively explained why the regression analysis used to calculate SP scores does not take into account the contributions to student growth and achievement made by substitute teachers where, as during Manset’s Year 1, the teacher being evaluated was absent from the classroom for an extended period. Given that Manset missed nearly one-third of that school year (more than half the second semester), it is hard to imagine that the substitute teachers who covered for him had no impact on his students’ performance.10
Of course, the substitutes’ net contribution might have been positive— that is, it’s possible Manset’s students performed better as a result of the
substitutes’ involvement, than they would have performed if Manset had
10 Section 1012.35(3) provides that “[d]istricts shall develop performance appraisal measures for assessing the quality of instruction delivered by substitutes who provide instruction for 30 or more days in a single classroom placement.” This requirement implicitly recognizes that a substitute teacher who spends six weeks in a single classroom is likely going to have an effect on student achievement. The pool sub who taught Manset’s class for 30 days during Year 1 met this threshold.
been able to teach the entire year. Indeed, if Manset were as bad a teacher as the District contends, then the substitute teachers probably would have been an improvement. Yet, Manset’s Year 1 SP score was near rock-bottom at 1.5, the same as his Year 2 and Year 3 SP scores. Contrary to what one reasonably might expect, in other words, the substitutes did not move the needle on student growth and achievement, despite their having taken the place of (in the District’s view) one of the worst teachers in the Broward County schools for a substantial portion of the year.11
The fact that the substitutes seem to have had no discernible effect on student achievement suggests the possibility that other factors besides teacher competence might explain the relatively poor performance of
Manset’s students on the standardized test, at least in Year 1. This is speculative, of course, because the District made no attempt to ascertain the substitutes’ effect on student achievement. Is this uncertainty sufficient to conclude that Manset should get a pass on Year 1 and be deemed to have received only two consecutive Needs Improvement ratings thus far? The undersigned does not have the discretion to exercise this sort of leniency, but the School Board probably does.
The District has carried it burden of proving that Manset received three consecutive ratings of Needs Improvement, which is all that
11 The District claims that Manset’s IP scores, as compared to those of the other 12,500 or so classroom teachers in the county, rank somewhere around the 4th percentile, meaning that approximately 96% of the District’s classroom teachers (or about 12,000 employees) have better IP scores than Manset. Put another way, this means that Manset’s IP scores bested only about 500 classroom teachers in the entire Broward County Public Schools system. In an attempt to downplay the significance of Manset’s multiple Effective ratings on the IP indicator, the District maintains that more than 99% of its teachers are rated as either Effective or Highly Effective, based on their IP scores. The District argues, further, that Manset’s IP scores—which translate to a respectable letter grade of B- —should more
accurately be labeled “low Effective,” if not “very low Effective.” In fairness to Manset, however, the District’s evaluation system obviously does not rely upon a comparative analysis, whereby a teacher’s rating would depend upon his or her performance relative to her peers’ performance; if it did, 99% of the teachers would not be designated Effective or better. Therefore, it is irrelevant to consider Manset’s “rank” in relation to the other classroom teachers in the school district. The undersigned mentions it here only for the
limited purpose of explaining why Manset’s Year 1 SP score might be considered unreliable.
subsection (1)(a) requires as proof of guilt on a charge of Poor Ratings as the offense is defined therein. Therefore, if Manset currently holds an unexpired PSC, then the District has established just cause for his dismissal from employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against David R. Manset for lack of jurisdiction; alternatively, if Respondent currently holds an unexpired PSC, then he may be dismissed for just cause during the term of that contract.
DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 16th day of March, 2021.
COPIES FURNISHED:
Andrew Carrabis, Esquire Broward County School Board
600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Robert F. McKee, Esquire Robert F. McKee, P.A.
1718 East 7th Avenue, Suite 301
Tampa, Florida 33605
Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street
Tallahassee, Florida 32399-0400
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Katherine A. Heffner, Esquire Robert F. McKee, P.A.
1718 East 7th Avenue, Suite 301
Tampa, Florida 33605
Robert W. Runcie, Superintendent Broward County School Board
600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125
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 |
|---|---|---|
| Mar. 16, 2021 | Recommended Order | School board has just cause to dismiss elementary school teacher for just cause during the term of his professional service contract, based upon the teacher?s having received three consecutive annual performance ratings of Needs Improvement. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs NOEL PATTI, 20-003492TTS (2020)
BROWARD COUNTY SCHOOL BOARD vs DOROTHY D. CLEMONS, 20-003492TTS (2020)
MIAMI-DADE COUNTY SCHOOL BOARD vs SERGIO H. ESCALONA, 20-003492TTS (2020)
PALM BEACH COUNTY SCHOOL BOARD vs SAMUEL K. YOUNG, 20-003492TTS (2020)
MIAMI-DADE COUNTY SCHOOL BOARD vs LEOPOLDO MUTIS, 20-003492TTS (2020)
