STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3271

)

ALEXANDER MUINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on May 11, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Assistant School Board Attorney

1410 Northeast Second Avenue, Suite 200

Miami, Florida 33132

For Respondent: William du Fresne, Esquire and

Ellen Leesfield, Esquire DUFRESNE AND BRADLEY

2929 Southwest Third Avenue Miami, Florida 33129

ISSUES

The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him.

At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the

Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.

PROCEDURAL BACKGROUND

By letter dated November 18, 1982, the Respondent Alexander Muina was notified that the School Board of Dade County, at a scheduled meeting of November 17, 1982, had suspended Respondent from employment with the Dade County Public Schools for incompetency, effective November 17, 1982, and had initiated dismissal proceedings against him pursuant to Sections 230.23(5) and 231.36(4)(c), Florida Statutes.

By letter dated November 22, 1982, the Respondent Muina requested an administrative hearing on the charges. The case was transferred to the Division of Administrative Hearings, and a notice of hearing was mailed by the Hearing Officer to the parties on January 10, 1983. Said notice cited Section 231.36(4)(c), Florida Statutes, inter alia, and scheduled the final hearing in this case for March 9, 1983. Upon joint motion of the parties, the hearing was subsequently continued.

A Notice of Charges was filed by Petitioner School Board on January 31, 1983, which cited Section 231.36(6), Florida Statutes, as authority for the dismissal. A second notice of hearing was mailed on February 21, 1983, resetting the hearing for May 11, 1983, and citing as authority, Section 231.36(4)(c), Florida Statutes, inter alia.

FINDINGS OF FACT

1. The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students.

   
   

2. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation.

   
   

3. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three

   different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed.

   Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position.

   
   

4. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year.

   
   

5. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom.

   
   

6. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties.

   
   

7. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction.

   
   

8. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward

   the objectives set forth in the IEPs, the children were not achieving a minimum education experience.

   
   

9. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students.

   
   

10. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated.

    
    

11. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted.

    
    

12. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course.

    
    

13. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class.

    
    

14. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable.

    
    

15. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction.

    
    

16. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in

    the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning.

    
    

17. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class.

    
    

18. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring.

    
    

19. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement.

    
    

20. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent.

    
    

21. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction.

    
    

22. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling.

    
    

23. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to

    work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit.

    
    

24. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year.

    
    

25. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract.

    
    

26. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position.

    
    

27. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments.

    
    

28. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent.

    
    

29. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher.

    
    

30. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education

    experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class.

    
    

31. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students.

    
    

32. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students.

    
    

33. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable.

    
    

34. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

36. The Respondent Muina is charged with violating Section 231.36(6), Florida Statutes, which provides in pertinent part:

    
    

    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; however, the charges against him must be based on just cause as provided in paragraph (1)(a) . . . (e.s)

    
    

37. "Just cause" is defined at Section 231.36(1)(a), Florida Statutes, as follows:

    
    

    ... Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination,

    willful neglect of duty, or conviction of a crime involving moral turpitude. (e.s)

    
    

38. Rule 6B-4.09(1), Florida Administrative Code defines "incompetency" as

    the:

    
    

    inability or lack of fitness to discharge

    the required duty as a result of inefficiency or incapacity . . . Such judgement

    shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

    1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); 1/ (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; . . .

       
       

39. The Petitioner School Board has demonstrated that the Respondent Muina

    is incompetent in the area of varying exceptionalities and just cause exists for his dismissal from employment in this field. 2/

    
    

40. The Respondent's claim that he was denied due process based on the failure to notify him that he was being dismissed from employment pursuant to Section 231.36(4), Florida Statutes, dealing with teachers on continuing contract, rather than Section 231.36(6), Florida Statutes, dealing with non- continuing contract teachers is also without merit. The Respondent was placed on notice that he was being charged with alleged incompetency and was subsequently informed of the specific statutory provisions involved through the filing of a Notice of Charges. Additionally, the Respondent has failed to demonstrate any prejudice which occurred as a result of the error which cited an

erroneous subsection of the correct statute. As such, the error is harmless, did not impact in any manner on the fairness of the administrative proceeding, and does not require reversal of the school board's action. Section 120.68(8), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent.

DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.

ENDNOTES

1/ Section 231.09, Florida Statutes, defines duties of instructional personnel to include, " . . . rules relating to teaching efficiently and faithfully using prescribed materials and methods; record keeping; and fulfilling the terms of any contract, unless released from the contract by the school board."

2/ Since the Respondent Muina has stipulated that he is not a holder of a professional service contract as contemplated by Section 231.36, Florida Statutes, the Petitioner's decision to dismiss the Respondent rather than transfer him to another position in the school system, is no longer an issue in this proceeding.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Assistant School Board Attorney Suite 200

1410 Northeast Second Avenue Miami, Florida 33132

William du Fresne, Esquire and Ellen Leesfield, Esquire DUFRESNE AND BRADLEY

2929 Southwest Third Avenue Miami, Florida 33129

Docket for Case No: 82-003271

Orders for Case No: 82-003271