STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA )
)
Petitioner, )
)
vs. ) CASE NO. 83-3067
)
CAROLYN T. SMITH, )
)
Respondent. )
) RALPH D. TURLINGTON, )
As Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0149
)
RALPH D. TURLINGTON, )
As Commissioner of Education, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on January 14-17, 1985, at Miami, Florida.
APPEARANCES
For Petitioner, Madelyn P. Schere, Esquire School Board of 1450 Northwest 2nd Avenue Dade County: Miami, Florida 33132
For Petitioner, Craig R. Wilson, Esquire Ralph D. Turlington, The Law Building
as Commissioner 315 Third Street, Suite 204
of Education: West Palm Beach, Florida 33401
For Respondent: Ellen L. Leesfield, Esquire
DuFresne and Bradley, P.A. 2929 Southwest 3rd Avenue Miami, Florida 33129
PRELIMINARY STATEMENT
By an Amended Specific Notice of Charges filed December 22, 1983, and assigned Case No. 83-3067, Petitioner, School Board of Dade County (School Board) alleged that Respondent, Carolyn T. Smith, was incompetent, and subject
to dismissal pursuant to Section 231.36(4)(c), Fla. Stat., by reason of her repeated failure to perform duties prescribed by law and her repeated failure to communicate with and relate to the students in her classroom to such an extent that they were deprived of a minimal educational experience. By Administrative Complaint filed January 10, 1984, and assigned Case No. 84-0149, Petitioner, Ralph D. Turlington, as Commissioner of Education (the State), seeks to revoke, suspend or take other disciplinary action against Respondent's teaching certificate predicated upon allegations that Respondent was incompetent to teach or perform her duties as an employee of the public school system, was guilty of conduct which seriously reduced her effectiveness as an employee of the School Board, and failed to make reasonable effort to protect the students under her charge from conditions that were harmful to their learning, or to their safety and health. At the parties' request these cases were consolidated.
At final hearing the parties offered Joint Exhibits 1-4, and they were received into evidence. Petitioners called Wally Lyshkov, Francis Wargo, Elaine Kenzel, Heather Rutecki, Janet Salzman, Gregory Roth, Ashley Wright, Thomas Pruitt, Kathy Frisbee, Mona Sowers, Roaul Fuertes, Danielle Wherry, Vicki Somberg, Valerie Jephson, Norma Barli, Melissa Patrylo, and Patrick Gray, as witnesses. Petitioners offered Exhibits 1-66, 66A, and 67-107, and Exhibits 1- 66, 66A, 67-105, and 107, were received into evidence. Respondent testified on her own behalf and called Jack Wells, Kathy Miller, Kevin McCaw, Patrick Gray, Dorothy Holmes, Alma J. Major Dean, Maria Smith, Denise Eutsey, Kyle Sawyer, Lucy McPhaul, Walter C. Anders, Gary Nesser, James Schrenker, Dolores Knesel, Leonard J. Succar, Mercedes Caluera, Alfonso Maniaci, and Roxanne Kowalczyk, as witnesses. Respondent offered Exhibits 1-5, 2A, 10-32, 45, 48, 49, 51, 53, and
55-61, and Exhibits 1-4, 2A, 10-32, 45, 48, 51, 53, 55, and 57-61, were received into evidence. At the parties' request leave was granted to take and file the depositions of Phyllis Cohen and Mabel Barlow subsequent to the final hearing.
The depositions of Phyllis Cohen and Mabel Barlow were, respectively, received into evidence as Petitioners' Exhibit 108 and Respondent's Exhibit 64.
The transcript of hearing was filed February 19, 1985. At the parties' request an extension of time was given in which to submit proposed findings of fact and conclusions of law. The parties waived the requirement set forth in Rule 28-5.402, F.A.C., that a recommended order be entered within 30 days after the transcript is filed.
The parties have submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.
FINDINGS OF FACT
Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level.
Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto).
Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year.
Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings.
During the 1979-80 school year the normal work day at Palmetto was 7:20
a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day.
Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class.
On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness.
Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto.
Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport.
Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto.
Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress.
Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking.
Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting.
On June 9, 1980, Respondent failed to report for work until 8:15 a.m.,
45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness.
On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication.
Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980-
School Year
The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable.
That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments.
In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers.
For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class
Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week.
Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety.
Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance.
The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued.
Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m.
On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation.
On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback.
Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student
confusion would be avoided, and a more stimulating and organized presentation achieved.
On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982.
On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so.
Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness.
Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself.
The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying.
In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature."
On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency.
Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment.
Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her
husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive.
Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office.
Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence.
Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed.
Respondent had simply taken a copy of the placement test and written "French I Final" on it.
Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught.
Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes.
Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized.
Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books.
On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student.
On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed
Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas:
Accuracy and completeness of required record keeping.
Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m.
Compliance with district, area, and school level directives and policies.
Improved classroom management procedures to insure the following:
Classroom organized and neat;
Attendance and tardy procedures enforced.
Seating charts available and up-to-date.
Rules and procedures consistently applied.
Teacher-student relationships resulting in mutual respect.
Consistent classroom performance resulting in continuous acceptable ratings.
Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement.
The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years.
The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons.
Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose.
Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons.
Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language.
Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year.
At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist.
Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual.
Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders.
By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them.
By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management.
Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not
open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools."
Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year.
The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself.
Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance.
While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years.
It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion.
Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy.
At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Case No. 83-3067
Section 231.36(4)(c), Fla. Stat., provides:
(c) Any member of the district administrative 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 immorality, misconduct
in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction 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.
In this case, the School Board's charge is incompetence.
In promulgating Rule 6B-4.09, F.A.C., the State Board of Education defined "incompetence" for purposes of Section 231.36(4)(c), Fla. Stat. Pertinent to this case, Rule 6B-4.09, F.A.C., provides:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each such charges is hereby defined:
(1) Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual
case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education.
Such judgment shall be based on a preponderance of evidence showing the existence of one
or more or the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (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. . . .
In this case, the School Board's charge of incompetency is based on inefficiency. Accordingly, the issues are whether Respondent repeatedly failed to perform duties prescribed by law (Section 231.09, Florida Statutes) or repeatedly failed to communicate with and relate to children in the classroom, to such an extent that pupils were deprived of a minimum educational experience.
Section 231.09, Fla. Stat., provides:
--Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.
Dade County School Board Rule 6Gx 13-58-1.02 provides:
Student evaluation is an important aspect of the total instructional program. Evaluation devices are to be used for assessment purposes to show each student, the parent(s),as well as the student's teacher(s), what the student has mastered, where the student needs help, and how to motivate the student for continued learning.
Teachers' oral and written tests, group discussions, written work, student folders, checklists, and observations are representative of the means to be used to determine student progress. Examinations or unit tests shall
be averaged as part of the grading period evaluation in which the examinations or unit tests are given. . . .
Where appropriate, examinations must include a reasonable number of questions which require an essay response.
Examinations in both elementary and secondary schools will be meaningful in nature. They should be carefully developed and closely examined so they are appropriate to the scope and sequence of the course and to the ability and maturity of the student.
Dade County School Board Rule (3Gx 13-4A-1.21 provides:
Employee Conduct
All persons employed by The School Board
of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in
a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.
Records and Reports
All personnel shall keep all records and shall prepare and submit promptly
all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives.
V. Instructional Personnel
Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using
the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the Rules of the State Department of Education.
Article XXIII, Section 3A, of the Contract between the Dade County Public Schools and the United Teachers of Dade provides that:
The employee workday shall be . . . (7) hours and twenty (20) minutes for employees at the secondary level. . . .
Article XI of the Contract between the Dade County Public Schools and the United Teachers of Dade provides that:
Lesson planning is an essential part of the teaching process and a proper subject for evaluation. The principal or supervising administrator has the authority to determine whether or not instructional objectives and related content are consistent with Board educational policy decisions and established instructional guidelines. The format or organization of lesson plans is best determined by the individual teacher. [W]here
a principal has substantiated a need for specific organization of lesson plans through personal conferences and classroom observations, the teacher may be required to utilize a set form in preparation of lesson plans.
Lesson plans shall reflect objectives, activities, material, and assessment techniques.
Petitioner, School Board of Dade County, has established that Respondent was incompetent as required, or defined, by Sections 231.36 and 231.09, Fla. Stat., and Rule 6B-4.09, F.A.C. Respondent repeatedly failed to perform duties prescribed by rules of the School Board and to fulfill the terms of her contract. Respondent repeatedly failed to communicate with and relate to the children in her classroom, to such an extent that pupils were deprived of a minimum educational experience. Case No. 84-0149
The State seeks to discipline Respondent's teacher's certificate under Section 231.28(1), Fla. Stat., which provides in pertinent part:
The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) 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 person, thereby 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 person; or to impose any other penalty provided by law, provided it can be shown that such person:
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;
(h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.
The State's Administrative Complaint alleges incompetence in the 1981-
and 1982-83 school years predicated on allegations that Respondent's conduct failed to comport with that required by Rules 6B-5.03(1) and (4), 6B-5.04(1)- (7), 6B- 5.05(1)-(5), 6B-5.06(1)-(7), 6B-5.O7(2)-(4), 6B-5.09(1)-(6), 6B- 5.10(1)-(9), and 6B-5.11(2), F.A.C. The evidence establishes that Respondent's conduct failed to comport with that required by Rules 6B-5.03(1) and (4), 6B- 5.04(2)-(5), 6B-5.O5(1)-(5), 6B- 5.06(3), (4) and (7), 6B-5.07(2)-(4), 6B- 5.09(1)-(5), 6B-5.10(2), (4), (6) and (7), and 6B-5.11(2), F.A.C.
The evidence further establishes that Respondent's failures were not isolated instances or a retrospective characterization of Respondent's conduct, beyond her power to conform it to the State's standards. Respondent was counseled prior to and during the 1981-82 and 1982-83 school years regarding her deficiencies, was apprised of curative measures, and afforded ample opportunity to conform her conduct to that which could be found competent. Respondent's performance failed to improve. The State has established that Respondent was
incompetent to teach or to perform her duties as an employee of the public school system for the 1981-82 and 1982-83 school years.
The State further charges that Respondent's personal conduct violates Section 231.28(f), Fla. Stat., since such conduct seriously reduced her effectiveness as an employee of the school board. Section 231.28(f), Fla. Stat., condemns "personal conduct"; conduct other than a teacher's "professional conduct" which would subject the teacher to discipline for incompetency under Section 231.28(1)(b), Fla. Stat. The State did not prove any such "personal conduct" in this case. See, e.g., Boyette v. State, Professional Practices Commission, 346 So. 2d 598 (Fla. 1st DCA 1977).
The State also charges that Respondent's conduct violates Section 231.28(h), Fla. Stat., predicated on a violation of Rule 6H-1.06(3)(a), F.A.C. Rule 68-1.06 provides in pertinent part:
Violation of any of these principles shall subject the individual to revocation
or suspension of the individual teacher's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
(a) Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
Respondent's frequent tardiness, and occasional absence from the classroom for periods of 5 to 45 minutes, left her students unsupervised for varying lengths of time. Lack of supervision could create a condition potentially harmful to a student's safety. There was, however, no showing that a lack of supervision of Respondent's students, under the facts of this case, created such a harmful condition. Accordingly, the State failed to prove a violation of Section 231.28(h), Fla. Stat.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That:
Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and
Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years.
DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985.
COPIES FURNISHED:
Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Craig R. Wilson, Esquire The Law Building
Suite 204
315 Third Street
West Palm Beach, Florida 33401
Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129
Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Karen Barr Wilde, Executive Director Education Practices Commission Department of Education
Knott Building
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1990 | Final Order filed. |
| May 02, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 24, 1985 | Agency Final Order | |
| May 02, 1985 | Recommended Order | Teacher's employment terminated and certificate revoked for two years upon showing of incompetence and failure to fulfill terms of her contract. |
MRS. JERRY D. JACKSON, O/B/O TAMMY TERRELL JACKSON vs. SCHOOL BOARD OF DADE COUNTY, 83-003067 (1983)
DADE COUNTY SCHOOL BOARD vs. NORRIS L. BARKER, 83-003067 (1983)
SCHOOL BOARD OF DADE COUNTY vs. FRED L. CROSS, 83-003067 (1983)
THOMAS GARRETT vs. SCHOOL BOARD OF DADE COUNTY, 83-003067 (1983)
DADE COUNTY SCHOOL BOARD vs. RAIMUNDO MANUEL DANTE, 83-003067 (1983)
