STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF OSCEOLA COUNTY, ) FLORIDA, and LEON T. HOBB, as )
Superintendent of Schools of the ) Osceola School District, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1659
)
JAY S. MARKLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on October 10 and 11, 1983, in Kissimmee, Florida. The issue for consideration was whether Respondent should be dismissed as a teacher in the Osceola County, Florida, schools because of misconduct alleged in the Administrative Complaint.
APPEARANCES
For Petitioner: Andrew B. Thomas, Esquire
308 North Magnolia Avenue Orlando, Florida 32801
For Respondent: Donald T. Smallwood, Esquire
13 West Dakin Avenue Kissimmee, Florida 32741
BACKGROUND
By Administrative Complaint for Dismissal dated 7 May 9, 1983, signed by William H. Vogel, Deputy Superintendent for Leon T. Hobbs, Superintendent, Petitioners indicated their intent to dismiss Respondent as a teacher in the Osceola County, Florida, schools and termination of his continuing contract because of his alleged gross insubordination and misconduct in office during the 1982-83 school year, in violation of Section 231.36(4)(c), Florida Statutes (1981). Thereafter, at a meeting of the school board on May 12, 1983, the board placed Respondent on suspension, without pay, and requested the Division of Administrative Hearings to hold a hearing and subsequently make findings and recommendations to the board. The hearing was originally scheduled for August 17, 1983, but, upon request of Respondent, was continued until October 10, 1983.
At the hearing, Petitioners called numerous witnesses, as did Respondent. Petitioners' Exhibits 1 through 13 and Respondent's Exhibits A through D were introduced.
FINDINGS OF FACT
At all times pertinent to this hearing, Respondent, Jay S. Markley, was employed as a teacher of mathematics at Osceola High School (OHS) , Kissimmee, Florida, under a continuing contract. A continuing contract conveys tenure status upon the teacher holding it. Mr. Markley had been employed at OHS for approximately nine years. During that period, in addition to being a teacher, he has held the positions of swimming coach, director of athletics, and chairman of the faculty council.
Mr. Floyd J. Scott, Jr., was principal of OHS during the 1982-83 school year and had served as such for four years. When he first arrived at OHS, he found a poor environment. Students were scoring low on the achievement tests, a small percentage of graduates was going on to college; discipline was poor, student participation in sports and other extracurricular activities was low, and the teams fielded by the school did poorly. His charter, upon assuming the principal's position, was to bring up the school standards and performance.
Among the several things he did to create a favorable change was to, during the 1982-83 school year, place emphasis on the need for teachers to file lesson plans, something that had not been done for quite a while in the past. During the first week of school, he began his programs of emphasis with a low key approach. He would mention the need for them to be filed at faculty meetings, included the requirement that they be filed in the teachers' handbook given to each teacher at the beginning of the school year, and hired a coordinator to work the problem, Ms. Shirley S. Phillips. As time went on throughout the year, more and more emphasis was placed on the subject.
Lesson plans are used by teachers to coordinate the information to be passed on to the students. They are a continuity document to be used by substitute teachers to work from in the event the regular teacher is absent. They are used by administrators to insure that required topics are covered, as verification of compliance with the county's scope and sequence plan, as part of the evaluation of teacher performance. Of great importance is the fact that they are considered as an evaluation factor by the Southern Association of Colleges and Universities in its evaluation of high schools for certification. An absence of certification makes it extremely difficult for a graduate of the unaccredited school to gain admission to a college or university outside the State of Florida.
The term "scope and sequence" is used to show that curriculum materials are tied together, the order and relationship of topics. The lesson plans are to insure that the daily activities of the teachers fulfill the scope and sequence goals. They are like a road map -- the ways to achieve the tasks set out in the scope and sequence.
Rule 5.4.6 of the Osceola County School Board requires teachers to follow a system of unit and lesson planning and specifically provides that the mere citation of text and workbook pages is not considered an adequate lesson plan. Repeated mention is made of lesson plans in the teachers' handbook supplied to each teacher at the beginning of each school year. Respondent recalls receiving his in August or September, 1982, and was also aware of the requirements of Rule 5.4.6. The handbook, at Page 6, requires detailed lesson plans to be in the substitute folder and, at Page 44, states that required "lesson plans will be submitted for review each Friday for the next week" to the curriculum coordinator, at first Ms. Zey, and later Ms. Phillips. Respondent knew of these requirements and knew that, except for two lesson plans submitted
at the beginning of the 1982-83 school year, he failed to file any more for the rest of the school year, though he contends he was preparing lesson plans, his style, throughout the school year.
Ms. Shirley Phillips became curriculum coordinator at Osceola High School on February 1, 1983. One of the jobs given to her was to collect and coordinate lesson plans which she monitored through a check-off system originally used by her predecessor. Prior to that, however, on November 30, 1982, Assistant Principal Tommy Tate notified Respondent, in an observation report acknowledged by him, that two areas in his performance needed improvement because of no lesson plans. This was followed up by the evaluation report submitted on Respondent by Mr. Scott, the principal, on December 15, 1982, and acknowledged by Respondent on December 17, 1982, that he was to keep lesson plans updated. The time line specified for achieving this improvement was "this marking period," or, in other words, right away.
On February 18, 1983, Ms. Phillips, fulfilling her duties pursuant to Mr. Scott's instructions, prepared a letter to a certain 20 faculty members, including Respondent 1/ . This letter, which was approved by Mr. Scott before being sent out, notified the recipients that they were delinquent in filing lesson plans and warned them they would be evaluated "unsatisfactory" unless they turned them in. Respondent received his copy of that letter. Somewhat later, when Ms. Phillips checked on who had still not filed their lesson plans, she found that several, including Respondent, were still delinquent. Most of these, however, except Respondent, did submit their lesson plans within a month and a half; and those who were delinquent, except for one teacher, Mr. Reeder, were not nearly so delinquent as Respondent either in number delinquent or time. Even Reeder, however, ultimately brought his plans up to date.
On March 18, 1983, a second letter was sent out, drafted by Ms. Phillips, but signed by the principal, again reminding some nine or ten teachers who had not as yet complied with the previous letter, including Respondent, that he expected each teacher to file the lesson plans and that those who did not would not only be rated unsatisfactory, but would also be considered insubordinate. Respondent and several other teachers who testified in his behalf, and to whom the letter was directed, indicated they did not get it. It is, therefore, quite possible that this particular letter did not get the wide dissemination Mr. Scott thought it did.
However, its follow-up, on April 11, 1983, sent to those who did not respond to the March 18 letter, was received by Respondent, as he submitted the letter called for in specific response to this April letter which, it is noted, also advised of the consequences for noncompliance.
In his letter of response, dated April 14, 1983, Respondent clearly stated his position in opposition to preparing and submitting lesson plans and, while not specifically stating he would not comply with Mr. Scott's previously expressed requirements, clearly indicated he would not be doing so. No other conclusion can reasonably be drawn from his willingness to accept an evaluation of unsatisfactory and a classification of insubordinate.
The principal displayed an inordinate amount of maturity and patience in his response to Respondent of April 19, 1983. Again restating his reasons for requesting lesson plans, he then graciously requested Respondent to reconsider and comply. Though couched in terms far less than directive, under the circumstances, it is clear this was an official request which was the force and effect of a direction.
Notwithstanding this latitude he was given, Respondent again failed to comply with the requirement to submit lesson plans and, on April 27, 1983, both the principal and vice principal, Messrs. Scott and Tate, rated him unsatisfactory in the one area on the observation and evaluation forms dealing with lesson plans. All other areas were rated satisfactory. Mr. Tate indicated that at this second observation, Respondent told him he would photocopy lesson plans if they wanted them. From Respondent's words and the tone of voice in which they were said, Mr. Tate inferred that Respondent thought it was stupid to do lesson plans and he did not see why he should have to.
Finally, on May 6, 1983, Mr. Scott sent a memo directly to Respondent only, recounting in summary from the prior history of this dispute and the authority for the requirement. Respondent was also ordered and directed, in writing, to turn in all lesson plans for the 1982-83 school year, including those due for the week of May 9 through 13 2/ , to Mr. Scott's office before 8:35 a.m. on Monday, May 9, 1983. He was also warned that his failure to comply would be deemed gross insubordination and willful neglect of duty and would subject him to disciplinary action. At the meeting between the two, in Mr. Scott's office on May 6, when this letter was given to him, Respondent indicates he was told he was the only one in the whole school who had not turned in lesson plans. At this point, he agreed to do them, but told Scott then that he could not get them done by 8:35 a.m. on May 9.
By 9 a.m. or so on May 9, when Respondent still had not brought any lesson plans to the office or contacted Mr. Scott for an extension, Mr. Scott sent his secretary, Barbara Rousch, to Respondent's room to pick them up. When she arrived there, Respondent did not offer her any plans. When she asked for the plans, Respondent said he was working on them. Specifically, he said, "I'll have them for you. Maybe not today, but I'm cooking on them." When he said this, Respondent was sitting at his desk working on the lesson plans while the students were in the room. 3/ Ms. Rousch was standing by his desk, and he neither showed her nor offered to show her the plans he had completed, though he contends that he showed her, from his desk book, what he had done. He states that he had completed at that time a complete set of plans for one of three classes of Algebra I and some plans for his class in consumer math. He admits he still had remaining to do two sets for the remaining Algebra I classes and one set for his class in Algebra II.
After Ms. Rousch left Respondent's office, there was no further discussion regarding the lesson plans. Respondent finished out the school day and after school went to his place of business off campus. It was then, about 5:30 p.m. on May 9, that Mr. Vogel, Assistant Superintendent of Schools, told him that he had been suspended and was not to come to school the next day. Nonetheless, he completed the lesson plans and himself turned in 31 weeks' worth to Barbara Rousch on May 12, 1983. His daughter turned in three more plans to Ms. Phillips the same day. Respondent has remained suspended without pay since May 9, 1983.
Respondent has been employed at OHS under five different principals since January, 1975. During all this time, he does not recall the rules requiring lesson plans to have been enforced prior to the 1982-83 school year. Since the beginning of this year, the enforcement has become stricter as the year went on. After Mr. Scott had been principal for a year, he removed Respondent as athletic director without stating a reason. However, when it appeared that there was thereafter a shortage on the books of the athletic department, Respondent reported the matter to Mr. Scott, who said he would look
into it. When Respondent told Scott he wanted to look at the books kept on several sports programs, he was denied access. When he asked Scott about it somewhat later and Scott said he had not done anything about it, Respondent went to the bookkeeper, who told him Scott had the books.
There have been other conflicts between the two individuals, as well. When Scott first came to the school, the principal ran the faculty council meetings. When Respondent took over as chairman of the council, he advised Mr. Scott that he, Respondent, would run the meetings, and he dictated to the principal how things would be done. According to Respondent, Scott neither resisted nor made comment about this. Though these conflicts existed, they appear to Respondent to be the result of a lack of communication. Even though there was no outward animosity from Scott to him, he feels it must have been hidden within Scott, who, he now feels, is singling him out for discipline. He has never heard of any action this severe for lesson plans, so he feels there must be another reason.
There is a clear pattern of resistance and disobedience demonstrated, however, by the above-cited evidence and Respondent's reaction throughout the year. For example, he states he turned in two weeks of plans in October, 1982, and until the remainder were turned in on May 12, 1983, no more, regardless of how many times he was reminded of the requirement. He got all the notices and memos except that of March 18, 1983, and was aware of the technical requirement to turn the plans in. Still, he did not, nor did he take any of the memos until May 6 as an order to turn them in. When, on that date, he got what he perceives as the first direction to turn the plans in, he did comply, although not on time even then, nor did he evidence any concern about not doing so. He contends that on the weekend of May 7 and 8, 1983, he worked 14 hours on the plans, but also admits he spent a reasonable portion of that weekend pursuing his off-campus swimming pool business.
He interpreted the April 11 memo as an either/or proposition, either turn in the lesson plans, or say why you did not. He chose to write the letter and was willing to receive an unsatisfactory rating because he did not consider that had any effect on him -- a tenured teacher. It was not until the May 6 meeting with Scott that the administration was serious and that he had better turn the lesson plans in. Prior to that day, he did not know what gross insubordination meant. Scott told him he might be returned to annual contract status, but did not tell him he would be dismissed.
From the beginning to now, he does not know why so much fuss is being made of lesson plans in light of the fact that as late as May 10, 1983, some teachers were delinquent in their lesson plans.
Respondent contends that he does lesson plans his way. He writes out what he plans to cover on a yellow sheet and spends his time teaching rather than filling out forms. However, teachers are given at least one period out of each school day for planning. During this planning period, no students are there to be taught. Though some books have lesson plans prepared for the teacher in the instructor's workbook, those being used by Respondent this year did not have those plans included. Even if they had, the mere photocopy of book plans was deemed by this administration to be inadequate.
Respondent, having first said he did plan his way, also says he has worked as a teacher for years without lesson plans. Lesson plans, even when submitted, are merely placed in a file and not used. Consequently, he could see no need for lesson plans. Though, by his own testimony, he knew of the
requirement in the law and that it had been there for years, he felt it was a choice item, and he did not have the obligation to follow it. He contends that other than the requirements of scope and sequence and what is in the teachers' handbook, there is no direction as to what is a sufficient lesson plan.
Numerous teachers who were employed at OHS during the 1982-83 school year confirmed Respondent's testimony as to the prior laxity in enforcing the requirement for lesson plans up until that year. There was also evidence from these teachers of an authoritarian atmosphere at OHS during the 1982-83 school year. Testimony revealed rumors being spread that Mr. Scott had a list of teachers he wanted to get rid of that included Respondent, among others. Yet, not one individual, except Respondent, including several who moved voluntarily to St. Cloud High School this year, testified that any threats were made to them or suggestions that they move by Mr. Scott or anyone in the administration of OHS. Those who moved voluntarily because they were "advised" they were on the "hit list" and should move testified they did so not at the instigation of the administration, but upon the advice of the teachers' union representative.
The incidence of rumor and innuendo on the part of one side, attempting to paint the principal and the administration in a bad light, while ignoring the defiance of legitimate authority by Respondent, is clearly shown in the testimony of one teacher that the attitude among the faculty that year was "Hitler was alive and well at OHS." Yet, she admits she had no problem personally with Mr. Scott. He was very supportive of her. Even another teacher who was questioned by Mr. Scott regarding a leak of information to the press during the year and who transferred at the end of the school year, stated she had received no pressure from Mr. Scott, had been thinking of transferring anyway, and was also advised to do so by the teachers' union. One other teacher who was also interviewed by Mr. Scott regarding the press leak was approached afterwards by a union representative and asked if he wanted to meet with other teachers about this. The union representative told them it would be unhealthy for them to remain at OHS, and they should request to transfer out. This particular teacher, however, though he testified on behalf of Respondent, nonetheless desired to remain at OHS.
Several teachers testified that Mr. Scott had said that the 1982-83 school year was going to be Mr. Markley's last year at OHS. Scott categorically denied ever having made that threat. The comment in question was made to him by someone else in the context that Respondent was leaving voluntarily to go into another business. Respondent is, in fact, engaged in the conduct of his own swimming pool business, which he started after being relieved as athletic director.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Petitioners contend Respondent's continuing to fail to file lesson plans after repeatedly being requested to do so constitutes gross insubordination and misconduct in office, which subjects him to dismissal under the provisions of Section 231.36(4)(c), Florida Statutes (1982 Supp.) This provision states:
Any member of the district administra- tive or supervisory staff and any member of the instructional staff,
including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immoral- ity, misconduct in office, incompe- tency, gross insubordination, willful neglect of duty, drunkenness, or con- viction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges
have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he may be reinstated. If such charges are sustained by a majority vote of the full membership
of the school board and such employee is discharged, his contract of employ- ment shall be thereby cancelled. Any such decision adverse to the employee may be appealed by the employee pursu- ant to s120.68, provided such appeal is filed within 30 days after the decision of the school board.
Gross insubordination is defined in Rule 6B-4.09(4), Florida Administrative Code, as: "A constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
Here, the rule of the Osceola County School Board, Rule 5.4.6., setting out the requirement for preparing lesson plans is a direct order, of which Respondent admitted he was aware, and the requirement for principals to assist teachers with them certainly has implicit within it the authority of the teacher to require they be periodically filed. This requirement was contained in the Teacher Handbook given to Respondent at the beginning of the year, and he admitted he was aware of that requirement. His continued and constant failure to follow that order, from October, 1982, to May 12, 1983, after repeated direct and written contact reminding him of his obligation. His letter of April 14, 1983, indicating his willingness to accept an unsatisfactory rating is clear indication of his intent to disobey the rule and without question constitutes gross insubordination.
Misconduct in office is defined in Rule 6B-4.09(3) as "a violation of the Code of Ethics so serious as to impair the individual's effectiveness In the school system." Here, Smith v. School Board of Leon County, 405 So.2d 183 (1 DCA Fla. 1981), is directly on point. As the court observed, "The thrust of the Code deals with a teacher's relationship with the public or with the school
administration as it affects the public." As in Smith, Respondent's behavior was purely a dispute between him and the administration which did not spill over into the public arena. To be sure, except for the filing of the lesson plans, Respondent was consistently rated a satisfactory teacher; and under these circumstances, the only relevant public relationship would be his ability to teach, properly, the public's children. There was no evidence he could not, so it must therefore be concluded he is not guilty of misconduct in office.
Based on the foregoing, it is, therefore, RECOMMENDED:
That Jay S. Markley be found not guilty of misconduct in office, but guilty of gross insubordination; that his suspension effective May 9, 1983, be sustained; that he be dismissed from employment with the Osceola County School Board; and that he be denied pay from May 9, 1983.
RECOMMENDED this 20th day of December, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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.
ENDNOTES
1/ There were approximately 72 teachers on the OHS faculty at that time. 2/ According to the teachers' handbook, these were due on May 6.
3/ Under any of the four different bell schedules used by OHS, 9:00 was during a classroom period, not between periods.
COPIES FURNISHED:
Andrew B. Thomas, Esquire
308 North Magnolia Avenue Orlando, Florida 32801
Donald T. Smallwood, Esquire
13 West Dakin Avenue Kissimmee, Florida 32741
Mr. Leon T. Hobbs Superintendent
School Board of Osceola County
Post Office Box 1948 Kissimmee, Florida 32741
| Issue Date | Proceedings |
|---|---|
| Apr. 18, 1991 | Final Order filed. |
| Dec. 20, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 31, 1984 | Agency Final Order | |
| Dec. 20, 1983 | Recommended Order | Evidence shows teacher not guilty of misconuct but guilty of insubordination sufficent to support termination of employment. |
