STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) RALPH D. TURLINGTON, COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1108

)

SHIRLEY A. HARPER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, on June 24, October 7 and October 28, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

315 Third Street, Suite 204 West Palm Beach, Florida 33401

For Respondent: Ellen Leesfield, Esquire

2929 Southwest Third Avenue Miami, Florida 33129

This matter arose on Petitioner's Administrative Complaint charging Respondent with incompetence and misconduct as a Florida licensed teacher. The hearing was consolidated on similar charges filed by Respondent's employer, the Dade County School Board (Case No. 83-223). A separate recommended order has been issued on the School Board case.

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year.

   
   

2. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a

   Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them.

   
   

3. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation.

   
   

4. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday.

   
   

5. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so.

   
   

6. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies.

   
   

7. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained.

   
   

8. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident.

9. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom.

   
   

10. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows.

    
    

11. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant

    principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order.

    
    

12. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful.

    
    

13. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982.

    
    

14. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students

    contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically.

    
    

15. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows.

    
    

16. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free.

    
    

17. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure.

    
    

18. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually.

    
    

19. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended.

    
    

20. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.

CONCLUSIONS OF LAW

1. Section 231.28, Florida Statutes (1982), provides in part:

   
   

   1. The Education Practices Commission shall have authority to suspend the teaching certificate of any [teacher] for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any [teacher] denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of

      subsection (4); to revoke permanently the teaching certificate of any [teacher]; or to impose any other penalty provided by law, provided it can be shown that such person:

      * * *

      (b) Has proved to be incompetent to teach or to perform his duties as an employee of the public school system or to teach in or to operate a private school;

      * * *

      (F) Upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board;

      . . .

      
      

2. Incompetency is defined by the Florida Administrative Code (F.A.C.), as the inability or lack of fitness to discharge the required duty of a classroom teacher by repeated failure to perform duties prescribed by law (Section 231.09, F.S.), the repeated failure on the part of a teacher to communicate with and relate to children in the classroom to such an extent that those pupils are deprived of minimum educational experiences or the lack of an adequate command of the teacher's area of specialization. Rule 6B-4.09(1), F.A.C.

   
   

3. Misconduct in office is defined as a violation of the Principles of Professional Conduct for the Education Profession in Florida which is so serious as to impair the individual's effectiveness in the school system.

   
   

4. Respondent is guilty of incompetence as defined above and is therefore subject to having her certificate suspended or revoked. However, it was not shown that she was guilty of misconduct that was sufficiently serious to warrant certificate suspension or revocation. It should be noted that Petitioner took no action against Respondent on the misconduct charges until the subsequent school year when she was suspended on charges of incompetence.

   
   

5. Respondent demonstrated at least some teaching ability in her current position with the Tri-City Community Association. She has not demonstrated any moral unfitness which would justify a long period of license suspension or revocation. Rather, the issue is one of competence which Respondent should be required to demonstrate following a license revocation period of one year.

   
   

6. Subsection 231.28(4)(b), Florida Statutes (1982), provides:

A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefore and by meeting the certification requirements of the state board current at the

time of the application for the new certificate.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year.

DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 20th day of December, 1983.

COPIES FURNISHED:

Craig R. Wilson, Esquire

315 Third Street, Suite 204 West Palm Beach, Florida 33401

Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129

Donald L. Griesheimer, Director Education Practices Commission Department of Education

The Capitol

Tallahassee, Florida 32301

The Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 83-1108

SHIRLEY A. HARPER,

Respondent.

/

FINAL ORDER

Respondent, SHIRLEY A. HARPER, holds Florida teaching certificate number 266193. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the panel pursuant to section 120.57(1), Florida Statutes; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on February 23, 1984 in Tampa, Florida to take final agency action. The Petitioner was represented by Craig Wilson, Esquire. The Respondent was represented by Ellen Leesfield, Esquire. The panel (with the exception of Aaron Bethel) has reviewed the entire record in the case.

The panel adopts the Findings of Fact of the Recommended Order. The panel adopts the Conclusion of Law of the Recommended Order, with the exception of the sentence "Respondent demonstrated at least some teaching ability in her current position with the Tri-City Community Association."

The certificate of Shirley A. Harper is hereby REVOKED for a period of three (3) years. Upon reapplication, the Respondent must successfully complete the Beginning Teacher Program.

DONE AND ORDERED in Tallahassee, Florida, this 7th day of March, 1984.

Aaron Bethel, Presiding Officer

COPIES FURNISHED:

Marlene Greenfield

Professional Practices Services

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner General Council

Craig Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

Ellen Leesfield, Esquire 2929 Southwest Third Avenue Miami, Florida 33129

Hon. R. T. Carpenter Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Dr. Leonard Britton Superintendent

Dade County Schools

1410 Northeast 2nd Avenue Miami, Florida 33132

I HEREBY CERTIFY that a copy of the foregoing Final in the matter of RDT v. Shirley A. Harper, has been furnished to Ellen Leesfield, Esquire, by U.S. Mail, this 13th day of March, 1984.

DONALD L. GRIESHEIMER, Clerk

Docket for Case No: 83-001108

Orders for Case No: 83-001108