STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0667
)
SALLIE L. BRIERLEY, )
)
Respondent. )
) EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, and ) RALPH D. TURLINGTON as )
Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 84-1412
)
SALLIE L. BRIERLEY, )
)
Respondent. )
)
RECOMMENDED ORDER APPEARANCES
For Petitioner, Usher L. Brown, Esquire School Board: Clearwater, Florida
For Petitioners,
Department of Wilson Jerry Foster, Esquire Education, et al: Tallahassee, Florida
For Respondent: Richard T. Donelan, Jr. and
F. Mark Kelly, Esquires Tampa, Florida
A final hearing was held in these consolidated cases in Clearwater on June 20-22, 1984. The issues are:
Whether petitioner, School Board of Pinellas County (School Board), should dismiss respondent, Sallie L. Brierley (Brierley), from her employment as a classroom teacher for incompetency; and
Whether petitioner, Education Practices Commission (Commission), should discipline Brierley's teaching certificate on the grounds of incompetency.
In its charging document 1/ the School Board alleges that Brierley was incompetent during the 1981-1982, 1982-1933 and 1983-1984 school years under Rule 6B-4.09, Florida Administrative Code. Specifically, the School Board alleges:
That Brierley failed to perform duties prescribed by Section 231.09, Florida Statutes (1983), by failing to teach efficiently or faithfully, failing to adhere to the course of instruction in her classroom, failing to use prescribed materials and methods of education, and failing to keep adequate records of student attendance or performance;
That Brierley kept incompetent records of classroom performance and student achievement in failing to correlate her daily grade book with report card grades and failing to date or label entries in the grade book;
That Brierley failed to prepare or adhere to adequate lesson plans;
That Brierley did not adequately use the assertive discipline plan in use at her school or otherwise competently discipline the children in her classroom as required by Section 231.29(24)(a), Florida Statutes (1983);
That Brierley is disorganized and ineffective in managing her classroom, spends too much time on non-instructional matters and fails to adhere to class curriculum schedules, in violation of Section 231.29(24)(d), Florida Statutes (1983); and
That Brierley failed to properly assess her children on the classroom assessment profile, or properly divide or place her children into ability groups.
In its charging document, 2/ Ralph D. Turlington, as Commissioner of Education, and the Department of Education (Department) allege more broadly that in each of the school years 1980-81 (Count I), 1982-83 (Count II), and 1983-84 (Count III) Brierley demonstrated incompetence in the following respects:
Failure to keep records in accordance with the law and accepted practices of the school system under Rule 6B-5.03, Florida Administrative Code;
Failure to utilize necessary instructional materials and equipment and adhere to and enforce administrative policy under Rule 6B-5.03, Florida Administrative Code;
Failure to utilize or promote utilization of acceptable techniques to analyze potential of individuals as required under Rule 6B-5.04, Florida Administrative Code;
Failure to accomplish designated tasks through selection and utilization of appropriate instructional procedures as required by Rule 6B-5.05, Florida Administrative Code;
Failure to display proper communications as required by Rule 6B-5.06, Florida Administrative Code;
Failure to resolve discipline problems in accordance with law, state board regulations, school board policy, and administrative regulations, and accepted school policies as required by Rule 6B-5.07, Florida Administrative Code;
Failure to "assume the proper scope of responsibility commensurate with her delegated authority to evaluate learning and goal achievement" as outlined in Rule 6B-5.09, Florida Administrative Code;
Failure to demonstrate effective human and interpersonal relations skills as required under Rule 6B-5.10, Florida Administrative Code; and last
Failure to demonstrate effective communication or appropriately control one's emotions as required by Rule 6B-5.11, Florida Administrative Code.
The Department also alleges that the previously alleged evidence of incompetency not only authorizes the Commission to discipline Brierley's teaching certificate for incompetence under Section 231.28(1)(b), Florida Statutes (1983), but also authorizes the Commission to discipline her teaching certificate for being guilty of personal conduct which seriously reduces her effectiveness as an employee of the School Board under Section 231.28(1)(f), Florida Statutes (1983). The Department also contends that these allegations constitute violations of Rules 6B-1.06(3)(a), (e), and (f), Florida Administrative Code, in that Brierley failed to make reasonable effort to protect students from conditions harmful to learning or to health and safety, has intentionally exposed a student to unnecessary embarrassment or disparagement, and has violated or denied students' legal rights. Finally, the Department contends that these allegations constitute a violation of Rule 68- 1.01, Florida Administrative Code, in that Brierley failed to achieve and sustain the highest degree of ethical conduct.
FINDINGS OF FACT 3/
Respondent, Sallie L. Brierley (Brierley), has held Florida Teacher's Certificate Number 334704, covering the area of Elementary Education, and, at least since 1980, has been employed by the Pinellas County School Board as a teacher of elementary school children in Pinellas County, Florida.
Brierley began teaching elementary school children in the Pinellas County school system in 1973 and taught continuously until the 1978-79 school year. During this time, Brierley received a continuing contract and satisfactory evaluations. (T. p. 353; PX 10-15.)
During the 1978-79 school year, Brierley became ill and, as a result, was on a leave of absence from the school system for the remainder of the 1978-
79 school year and the entire 1979-1980 school year. (T. p.355.)
In June 1980, Brierley contacted Winifred Halstead concerning resuming her teaching career. Halstead had been the principal at Orange Grove Elementary School where Brierley had taught before her illness. By June 1980, Halstead was principal of Starkey Elementary School. Brierley, meanwhile, had been assigned to Belcher Elementary School, whose principal was John Dileo. Halstead explained to Brierley that she would not be able to change Brierley's assignment to Belcher. 4/
Before the 1980-81 school year began, Dileo was concerned whether Brierley still could function well as a classroom teacher despite her illness. He knew that Brierley's illness resulted in some type of seizures. In fact, she had had encephalitis and, as a result, had epilepsy. Dileo was particularly concerned whether Brierley could handle the stress of being a classroom teacher.
In addition, Brierley was still taking medication for her illness which affected her behavior and ability.
When Brierley began teaching at Belcher, Dileo closely supervised her and reviewed her performance. This added stress to the otherwise naturally stressful readjustment to classroom teaching which Brierley had to make. This additional stress, in turn, made Brierley's adjustment to the job more difficult, particularly because stress aggravated her illness.
When Dileo formally evaluated Brierley on or about October 13, 1980, he rated her overall unsatisfactory. He noted that she had a good appearance and seemed to relate well to the children. But he felt that she was deficient in:
Classroom management and time management. -- Dileo recalled that one of Brierley's spelling lessons took one hour and fifteen minutes, much too long for second grade children. That type of lesson should only have taken 15-
20 minutes to present and complete. (PX 39; T. 268-270.) Class management relates, in part, to the ability of the teacher to communicate to students exactly what they should be doing so that they understand what is expected of them. It also includes the ability of the teacher to insure that students are generally performing the tasks assigned by the teacher. (T. 269.)
Implementing reading program. Brierley did not follow the school's reading program. Pretesting ability grouping and specific skill instruction had not been done with well over half of the children in Brierley's classroom. (T. 270.) In some instances children were in inappropriate instructional levels or skill groups. For example, students who had been previously identified as above grade level were placed at grade level or below grade-level by Brierley.
Dileo suggested that Brierley use ability profiles for placement of students in skill groups, improve planning and time management and utilize the help of the reading supervisor to establish the reading program.
Until approximately January 7, 1981, Dileo continued to monitor Brierley's performance, making approximately two informal observations per week.
Dileo testified persuasively that Brierley performed deficiently in the following areas:
Brierley deficiently kept records required by law and the accepted practices of the school system. On one occasion she failed to produce grade book and lesson plan book. On other occasions, she destroyed the results of skills tests. Her planning book was not planned or organized competently, and she could not produce evidence of papers or test results to support her report card grades. (T.276-277.)
Brierley deficiently utilized instructional material and equipment necessary to accomplish her designated tasks and placed students inappropriately in relation to their ability levels, thereby also making inappropriate use of the materials and texts given to those children. (T.278-279.)
Brierley deficiently utilized or promoted utilization of techniques to analyze the potential of the children she was teaching. As a result, the children were placed in the wrong skill groups or levels. (T. 279- 280.) 5/
During the first half of the 1980-81 school year, Brierley approached her former principal, Halstead, and complained that she was being harassed by Dileo and his administration. (T. 356-357.) Halstead agreed to let Brierley transfer to Starkey Elementary School. (T. 358.) Halstead remembered that Brierley had been a good teacher for her at Orange Park Elementary School. Halstead believed that Brierley would be able to readjust to classroom teaching and be just as good a teacher for her at Starkey Elementary School.
Brierley began teaching second grade at Starkey Elementary School during the second half of the 1980-81 school year. During the rest of that year, Brierley's teaching performance and professional performance in all areas was evaluated satisfactory by Brierley's appraiser and Halstead. Both specifically stated: "Mrs. Brierley has fit in well with our staff. She takes suggestions well and uses the services of the staff well also."
The appraiser and Halstead did underline the phrase "uses sound judgment" to signify that they detected a problem developing in that Brierley sometimes was tardy, sometimes spent time in other teachers' classrooms and sometimes did not turn materials into Halstead's office on time.
On one occasion during the 1980-81 school year, Halstead observed Brierley allowing five of her children to sneak out of the classroom and run down the hall to the girl's bathroom. Brierley was in a corner of her classroom with children gathered around her and did not see the five girls leave.
(T.363.) There was rain water on the walkway making it slippery and, under these circumstances, dangerous. Halstead observed no other "gross" instances of misbehavior by Brierley's children during the 1980-81 school year. (T. 410.)
There were also occasions during the second half of the 1980-81 school year at Starkey when Brierley delayed exchanging classes with her team teacher. These delays occurred on a fairly regular basis, approximately two to three times a week. The delays would last approximately ten minutes. (T. 448-451.) However, the reasons for the delays were not shown.
Part of the reason for the delay was Brierley's difficulty in keeping track of her children's lunch tickets which she was to exchange with her team teacher when the children exchanged classes. Sometimes Brierley could not find the lunch tickets at all. (T. 452-453.)
Finally, on occasion, Brierley did not have her children ready for physical education class when her team teacher had hers ready. Again, the reason for Brierley's delay was not shown. Brierley also had all her children line up at one time to go to P.E. (T. 455-456.)
At the conclusion of the 1980-81 school year, Brierley's team teacher requested that she not team teach the following year. She made this request in part because she preferred teaching by herself and partly because she did not want to team teach with Brierley. (T. 457.) 6/
On or about November 17, 1981, Halstead held a conference with Brierley to discuss:
Poor discipline in the classroom;
Organization and time management;
Turning items in to the office on time
Coming to school when ill.
Halstead suggested that Brierley use the assertive discipline plan required at Starkey in a more consistent manner and be sure that the children knew her expectations for each activity. To improve organizational skills, Halstead suggested that Brierley go to her classroom at 7:30 a.m. to organize materials and lessons for the day. Finally, Halstead suggested that Brierley stay home when she was ill rather than try to teach and sometimes have to ask school staff to help her.
Brierley continued to have some deficiencies in the area of maintaining discipline in the classroom and organizing and managing her work. She did not always begin teaching on time and her transition between lessons was not as smooth as it could have been. (T. 54-55.) Sometimes the delay was in readying the materials for the class. (T. 55.) This contributed to the children's restlessness at times and was the source of some of Brierley's difficulty in maintaining discipline. (T. 55-58.)
Brierley also continued to have some deficiencies in turning material in to Halstead on time and continued to have problems keeping track of the children's lunch tickets. (T. 370-371.) This problem, like some of Brierley's other deficiencies in the area of organization, resulted from Brierley keeping a disorganized, cluttered desk. (T. 468-470.)
On one occasion, Brierley lost the results of a standardized achievement test with her classes' test scores. This created a problem in planning priorities of instruction for the next school year for those children. (T. 472.)
For purposes of her formal performance evaluation for the 1981-82 school year, Brierley was observed on February 26, April 15, and April 21, 1982. Halstead and Assistant Principal Marion Hallett rated Brierley's teaching performance as needing improvement in the area of:
Planning and organizing carefully (having written plans and definite goals, making clear assignments, and using physical facilities to best advantage); and
Initiating and preserving class and school discipline (maintaining rules of student conduct and emphasizing set discipline).
However, in all other areas of teaching performance, they rated Brierley satisfactory. These include: skill in questioning and explaining (asking thought-provoking questions and giving clear explanations); motivating learning (encouraging questions, discussion and student activities, and using a variety of methods and showing enthusiasm); evaluating student performance effectively (providing adequate classroom tests and feedback, and maintaining records of student progress); developing constructive relationships with students (showing interest in all students as individuals and encouraging mutual respect and friendliness); demonstrating mastery of the subject matter (exhibiting knowledge appropriate for grade/skill level taught). They also rated Brierley satisfactory in all areas of professional performance: school- related responsibilities; personal relationships; attitude and growth; staff services; grooming; attendance/punctuality.
The evaluation procedure did not provide for rating teachers above satisfactory level.
The discipline problems which resulted in Brierley's less than satisfactory evaluation in that area consisted of Brierley's children frequently misbehaving by "pushing, loud noise, hitting each other" during the course of the school year. Often Brierley did not seem to be aware of the misbehavior which Halstead observed. (T. 372-373.) 7/
Brierley's performance as a classroom teacher did not change significantly at the beginning of the 1982-83 school year. On October 7, 1982, Brierley and Hallett conferred concerning: starting class promptly; using the assertive discipline plan in effect for Brierley's class; having materials ready on time; being in the classroom by 8:00a.m.; showing enthusiasm; and getting organized.
During the week prior to November 17, 1982, Brierley had a seizure at work. Her children were at art education class, and Brierley was talking with another teacher in her classroom. She sensed the seizure becoming imminent and asked to excuse herself. She notified Halstead's office and went to the ladies bathroom where the seizure occurred.
On November 17, 1982, Halstead had a conference with Brierley. The main topic of the conference was Brierley's seizure. Halstead was concerned because Brierley's seizure at work caused stress and anxiety for the teachers on the staff. She also expressed concern that Brierley does not participate in certain assemblies for health reasons and other teachers are required to take responsibility for her class. For these reasons Halstead asked Brierley to resign, but she declined. Halstead also asked Brierley's husband to convince her to resign, but he was not able to.
During the same November 17, 1982, conference, Halstead told Brierley that she and Hallett had observed no improvement in the areas discussed with Brierley on October 7, 1982. Halstead also noted that Brierley was not in her classroom at 8:00a.m. on the morning of November 17 and that she had not yet begun teaching during the previous week when Halstead came by at 9:O0a.m.. It was not shown what Brierley was doing at those times.
During the November 17 conference Halstead also criticized Brierley for lack of organization and for improper use of lesson plans.
On November 17, 1982, Halstead arranged with the director of instructional personnel for a "fair practice assistance review committee" to work with Brierley for a three-day period "in hopes that you will be able to improve in deficient areas."
After November 17, 1982, Halstead, Hallett or other school personnel formally observed and criticized Brierley's performance approximately every two weeks. In addition, Halstead and Hallett made frequent and irregular unannounced informal observations. This situation created additional stress which hindered Brierley's good faith efforts to improve in her areas of deficiency. In addition, in her mind Brierley believed that the purpose of the observations was to force her to voluntarily resign or to build a case for her involuntary dismissal. This created additional stress on Brierley.
Brierley was observed on November 23, 1982 by both Halstead and Hallett. During this observation, Brierley did not perform perfectly. Some of the children misbehaved without penalty. Some of the children were off-task. Some of the children spent almost five minutes at the pencil sharpener instead of doing their work. Some of the children were unruly. Brierley tended to ask questions to the entire class, inviting a chorus response. Faced with this misbehavior, Brierley did not make the best use of the "assertive discipline plan," or some variation of it, which was mandatory at Starkey.
On November 23, 1982, one of Brierley's skill groups had 13 children, and the group was difficult to control during Halstead's and Hallett's observation. However, the evidence indicated that Brierley was subject to contradictory instruction regarding the size of skill groups. While Hallett and Halstead criticized Brierley in this instance for having too large a skill group, they criticized her in other instances for failing to combine groups of children into one large group for instruction when different skill groups were to be taught the same skill during the same week.
On November 23, 1982, Brierley also assigned work in the children's math resource book without first determining exactly how much time the children would need or take to finish the assignment. Although Halstead and Hallett criticized Brierley for this, Brierley's approach had no serious shortcomings and was more efficient than the approach they would have required of her.
Also on November 23, 1982, at the end of the last lesson, Brierley told her children to put their materials away and get ready for the next class. Some of the children either did not understand or did not pay attention to Brierley's directions and did not respond promptly. Brierley's directions could have been clearer, and she could have made better use of the assertive discipline plan to get a prompter response.
On December 14, 1982, Brierley did not have her materials ready at the beginning of the lesson which Hallett observed. The lesson did not begin promptly for this reason. Brierley's lesson plan for that day indicated that she would be using the Pinellas County Math System (PCMS) skills lesson for two of the skill groups and a textbook for the other skill groups. Brierley was not prepared for that lesson and did not use either material. The children were unresponsive and bored. This resulted in misbehavior which Brierley was not able to correct on that occasion. She did not use the assertive discipline plan. Her instruction suffered because of the amount of time she was devoting to discipline. This further decreased the children's responsiveness and increased their boredom.
By November 24, 1982, the School Board's director of instructional personnel already had sent the Professional Practices Services of the Department a letter requesting an assistance review of Brierley's performance. In an assistance review, the Department professional stays with the teacher for three days to provide assistance and give recommendations and suggestions. The review assistance informs the teacher as to her strengths and weaknesses and gives suggestions on how to cure deficiencies. On January 12, 1983, Professional Practices Services responded and arranged for Brierley's assistance review on February 23, 24, and 25, 1983. However, what transpired during an assistance review is inadmissible in this proceeding and was not offered in evidence. No competence review of Brierley under Rule 6B-5.021(3), Florida Administrative Code, ever was performed.
On April 14, 1983, Hallett observed Brierley and Hallett and Winstead criticized Brierley's performance in detail in a memorandum of an April 15 follow-up conference.
On April 14, 1983, Brierley began instruction 20 minutes after morning opening was over. Hallett and Halstead criticized Brierley for this. However, it is sometimes appropriate for a teacher of second grade children to use discretion in deciding whether one or more of her children need extra attention before the start of instruction. It was not demonstrated that this was not the case on April 14, 1983. Such circumstances would excuse the otherwise seemingly inordinate delay in calling the roll and doing other "housekeeping" tasks.
On April 124, 1983, Brierley did not have a lesson plan for her third lesson.
On April 124, 1983, Brierley taught the same math lesson to two skill groups. Halstead and Hallett criticized Brierley for this, but on other occasions they criticized her for not combining skill groups being taught the same lesson. Sometimes it is appropriate to combine skill groups that are being taught the same lesson at approximately the same time. It is a matter for the teacher to judge whether the size of the group is too large to be taught effectively. It was not demonstrated that on April 14, 1983 it was inappropriate to combine the skill groups or that the resulting group was too large to be taught effectively.
On April 14, 1983, the bulletin boards in Brierley's class were not current, and no current student work was displayed. Only one learning center was observed, and it was not complete.
Hallett and Halstead criticized Brierley's lesson plans for April 14, 1983, as being "vague and non-specific." They recommended that Brierley's plans for each skill group include objectives, activities and materials to be used. Brierley took these recommendations to heart and began to add detail to her lesson plans.
During the April 14, 1983 observation, respondent could have better maintained discipline and more effectively managed her classroom by taking less time distributing materials and using the assertive discipline plan better than she did. Finally, during the April 14, 1983 observation, Brierley's lessons could have been presented more clearly, the board work assigned could have been more appropriate, more opportunities could have been provided for practice, and games could have been used to occupy the children who finished the board work within the allotted time. These deficiencies did not render Brierley's classroom instruction incompetent during the observation.
On April 20, 1983, Halstead requested supervisory assistance for Brierley in mathematics. (PX 6.)
On May 3, 1983, elementary math supervisor, Eleanor Bennett, observed Brierley's class between 8:40a.m. and 9:30a.m. Brierley was teaching three skills groups at level D or third grade level. Children who were not with Brierley were assigned written practice or were assigned to listen to an instructional tape recording which Brierley had available at the listening
center in the class. Instructional games were also available for the use of those children. During instruction, the tape recorder at the listening center malfunctioned, and Brierley spent approximately five minutes attempting to make it work. Some of the children did not pay good attention to Brierley's instruction and had a low motivational level. Several students had difficulty with the related practice assignments, and there was some "off-task" behavior. But generally, there was no excessive misbehavior among the children.
Bennett's job is to help teachers improve, particularly when the teacher's principal has advised Bennett that there are deficiencies. Accordingly, Bennett indicated that Brierley needed help in the following areas: planning, preparation purpose; methods of presentation; materials of instruction; questioning, student response; class management, control, direction; and implementation of the Pinellas County Math System.
Bennett also made the following specific suggestions:
In planning preparation, purpose:
Write daily lesson plans specifying the instructional skill groups, the teacher resource(s) selected from the PCMS Teacher Resource Manual (TRM) and use the PCMS skill lessons as appropriate;
Provide information in the plan book concerning related practice, reinforcement activity, and review/drill work for each group.
Select practice assignments from parts of the PCMS-TRM that did not require teacher involvement.
Identify the children assigned to the listening center or specific activity;
Maintain a folder for each child with the child's student profile, all PCMS tests and samples of student work.
Identify grade and keep key assignments from the student prescription.
Make appropriate use of management charts and ideas in the PCMS
handbook.
Complete all instruction on a particular grade level before
moving to objectives at the next level.
Use the chalk board to instruct the children when the various groups will be doing the various activities.
In methods of presentation
Start skill group instruction promptly at the beginning of the
class.
Group children according to their skill levels and provide
instruction before any independent practice.
Have the children bring their work folders to the instructional group and review them briefly to check progress.
Use concrete materials in math instructions and establish the relationship between manipulative and abstract levels.
Develop an understanding of the relationship of objectives within a strand of skills and of one strand to another.
Practice motivational and reinforcement techniques.
Use questioning techniques to clarify, assess understanding, and maintain the children's attention.
Materials of instructions.
Review materials listed in the PCMS-TRM before assigning them.
Questioning, student response:
Practice techniques
Class management, control, direction:
Be consistent in implementation of assertive discipline.
Establish clearly defined criteria for giving positive and/or negative consequences.
On May 6, 1983, Brierley received her performance evaluation for the school year 1982-83. This time, Brierley's professional performance was still rated overall satisfactory, although this time she was rated by Halstead and Hallett as needing improvement in the area of personal relationships. However, she was rated overall unsatisfactory in teaching performance. She was rated unsatisfactory in planning and organizing carefully. She was rated as needing improvement in the areas: skillful questioning and explaining; evaluating student performance effectively; and initiating and preserving class and school discipline. Hallett noted: "County Supervisor and supporting school-based personnel are working with Mrs. Brierley in the areas of deficiency." Brierley indicated her disagreement with all of the less than satisfactory ratings. The evaluation was based upon observations held on November 17, 1982 and April 20, 1983 in addition to "several others."
On August 29, 1983, the first day of the next school year, Brierley called in sick and did not report to work. She had left no lesson plans for the substitute teacher, and Halstead had Brierley telephoned and requested to deliver a lesson plan. Later in the day, Brierley's husband delivered a single page which was to serve as a lesson plan for that day. The plan was insufficient. As a result, Hallett had to prepare a lesson plan for the substitute teacher. If this were an example of how Brierley always did her lesson plans, Brierley would be incompetent in preparing lesson plans. But this type lesson plan was prepared only once.
By September 6, 1983, Halstead and Hallett already had delivered to Brierley their first memorandum of the 1983-84 school year outlining areas which were to be Brierley's "main focus for improvement at this time." They included: planning and organization; questioning techniques; evaluating student performance; discipline; and working effectively with colleagues.
Brierley continued to have problems in classroom teaching. Her main problem was not being as organized as she should have been. This affected her planning, her class instruction, and her recordkeeping. It also caused some delays during the course of her classes during housekeeping tasks and handing out materials and the like. Delays in her class created some discipline problems in that the children's attention wandered and they became restless. Halstead was bothered that Brierley often had to ask her or other faculty members to repeat instructions or other information and often had to ask for additional copies of materials that Halstead had had given to her. When this happened, Brierley took the time of Halstead or another teacher. Halstead and Hallett also noticed that Brierley's first instructional class of the day frequently had not begun by 15 to 20 minutes after it was scheduled to begin. As previously mentioned, some of this delay was due to Brierley giving additional attention to children whom she thought needed it; some was due to deficiencies in organization.
Brierley did not list the children by skill groups in her lesson plans as required by the Starkey Elementary Teacher's Handbook.
On October 7, 1983, Bennett, the elementary math supervisor, again observed Brierley for approximately 45 minutes to an hour. Bennett related her comments from the October 7 observation to the comments she had previously made as a result of the May 3, 1983, observation. She noted that Brierley still needed help and should follow her previous suggestions in the areas outlined at paragraph 46(a)(i), (ii), and (viii) above. She added with respect to 46(a)(i), that Brierley should "improve lesson plans and implementation of lesson plans by including step-by-step procedures [sic] that will lead to the development of the objective(s)". With respect to 46(a)(ii), Bennett added that Brierley should make plans for each class. With respect to 46(a)(viii), Bennett stated that Brierley should teach pre-requisite skills before moving to advanced skills within a strand or to a more advanced strand of skills at the grade level of skills. With respect to methods of presentation, Bennett referred to the suggestion outlined in paragraph 46(b)(i) above, and added that she recommended that Brierley should call roll quickly and move on to instruction. Finally, Bennett suggested that Brierley review all of her previous suggestions and handouts.
Bennett again observed Brierley on November 30, 1983 from 8:30 to 9:15 and from 9:45 to 10:15a.m. Brierley met with three math groups at a table near the chalkboard to provide instruction on PCMS Time Level C. This time, Bennett observed that her first two math classes were taught with adequate skill. A large Judy clock was used to demonstrate time, and individual clocks were made available to the children for instructional purposes. Children who were not with Brierley worked on assignments selected from a prescription chart, had a learning center assignment, and were to check their seatwork using the teacher's edition at the checking table. Individual work folders were available for student papers. One of the children worked with a volunteer helper.
During the first two math groups which met prior to the physical education class, Brierley "developed the lesson in a logical sequence utilizing questioning and reinforcement techniques to move the lesson towards reaching the objective. An exception to this was an instance when the teacher apparently intended to use a verbal challenge to motivate the students through the use of humor. The result was some off-task behavior and an interruption of instructional momentum. Students at their seats remained on task working on and/or completing assignments and checking their work."
After the P.E. class, Brierley had markedly more difficulty controlling the behavior of the children. She left the instructional group to speak strictly to the children concerning their learning center assignments and behavior. Some of the children had difficulty finding their assigned center and were told to return to their seat and not to use the center for the remainder of the week. Instruction was interrupted again when Brierley stopped to ask a child to leave the checking table. In general, because of the discipline problem, Brierley's ability to instruct and teach the children decreased. It was, in general, an unsuccessful class period.
Bennett and Brierley held a brief conference on November 30 during the physical education class and arranged to continue the conference during pre- school the following Friday morning, December 2, 1983. At that time Hallett also appeared for the conference. The joint conference resulted in Bennett's visitation and conference report which reported the following areas where Brierley needed help: management of student conduct, varied approaches and materials; teaching techniques; and evaluation of students.
In the area of management of student conduct, Brierley was encouraged: to enforce the rules of assertive discipline fairly and clearly; to establish clearly defined criteria for giving positive and/or negative consequences; to give multiple positive consequences prior to the negative one, unless it is necessary to move to the "severe clause", to observe a situation to determine what is happening before responding; and to develop rules for using the checking center.
In the area of varied approaches and materials, it was suggested that Brierley: identify learner needs based upon diagnostic testing; select and sequence content appropriate to the learner; date lists of children in each skill group and staple on the appropriate pages of the plan book; write skill group lessons for each math class based upon identified learner needs in each class; and "consider laminating the outer ring of the learning center management wheel to facilitate and clarify center assignments."
In the area of teaching techniques, it was suggested that Brierley: review sample lesson plans; review previous handouts; circulate and assist students with their seatwork between skill groups; and have the children bring their current seatwork paper to the skill group for Brierley to check.
In the area of evaluation of students, it was suggested that Brierley: assess each child's comprehension of the objective taught in the skill group lesson; continue to provide opportunities for students to self-check; keep sample papers for purposes of grading and parent conferences; and maintain a record of students' progress on learning center activities.
Some of the suggestions resulting from the December 2, 1983 conference related to Hallett's criticism of Brierley's lesson plan book, particularly during a five-week period from October 3 through November 24, 1983 during which Brierley was on sick leave for two weeks. Brierley had projected and prepared lesson plans for her two-week absence for use by a substitute teacher. The lesson plan book appears to plan to "go through the different skills" of the material without allowance for the different amounts of time it takes to present certain skills as opposed to others. But in practice, teachers are expected to vary from lesson plans (particularly relatively long-range lesson plans), as appropriate, in the course of teaching.
Brierley's lesson plans for the five-week period from October 3 through November 24, 1983 also do not list the precise activity of the teacher. For example, Brierley wrote that the teacher would use "individual number lines" but did not specify how individual number lines would be used in the class. The Starkey Elementary Teacher Handbook for lesson plans requires such a precise statement of what the teacher will do in the "teacher directed" portion of the class. Since Eleanor Bennett's May 3, 1983 criticism of Brierley's lack of detail in her lesson plan books, Brierley had begun including great detail in her lesson plans. Hallett then criticized Brierley for including too much detail in her lesson plans and instructed Brierley to use shorthand symbols and abbreviations. When Brierley questioned how a substitute teacher would know precisely what to do, Hallett advised her that the substitute teacher would get the more detailed information from the "red book." This explains, at least in part, Brierley's lack of detail in some of her lesson plans, particularly during the period between October 3 and November 24, 1983.
In Brierley's lesson plans from October 3 through October 21, 1983, Brierley repeatedly planned for use of "cuisenaire rods." The lack of further detail explaining how to use the cuisenaire rods is explained, at least in part, by the circumstances referred to in the immediately preceding paragraph. However, it was poor planning to use the same instructional material for three solid weeks because repeated use of the same teaching material would tend to bore a second grader.
Brierley also was criticized for planning to teach different skill groups the same skill at the same level within approximately one week of each other. However, as previously mentioned, Brierley was subject to conflicting advice on when to combine different skill groups and when not to. Ultimately, this decision must be left to the sound judgment of the teacher. Review of the lesson plan book alone cannot justify such criticism, particularly when the lesson plan projects over a long time period.
Except to the extent reflected in paragraphs 48 and 55-58 above, no glaring deficiency in Brierley's lesson plans themselves was proved. In fact, during the 1981-82 school year and part of the 1982-83 school year, Brierley's lesson plans were shown to other Starkey Elementary teachers as good examples to follow.
On December 7, 1983, Brierley did not begin instructing her first class until between 9:00 and 9:05a.m. although the morning opening took place at 8:40a.m. and instruction should have begun by 8:45a.m.. Again, the reason for the delay on this particular occasion was not shown.
On December 8, 1983, Hallett made an unannounced thirty minute observation of Brierley's class from 1:05p.m. to 1:35p.m.. Although social studies was scheduled to begin at 1:05p.m., Brierley taught a skill group from the previous math class until 1:23p.m.. No change of schedule was noted in Brierley's lesson plan. It then took 12 minutes for Brierley to close the math class and begin social studies. Hallett timed all of these activities to the minute.
The class was disorganized during the transition from math to social studies. Brierley was speaking to one child and had her back to the rest of the class during most of the time. Row by row, she asked the children to replace their math folders. Brierley did not notice that the children were not following her directions and called succeeding rows before the preceding rows had finished their task.
Brierley quieted the class, and everyone was ready for the social studies lesson. Brierley then took 3 minutes to hang and arrange charts on the wall. The children again got noisy. Brierley then proceeded to practice for the Christmas program instead of teaching social studies although they had practiced that morning and Brierley had not planned to practice again in the afternoon.
As reflected in the preceding paragraph, Brierley was not perfectly organized and did not perfectly control the behavior of her children during Hallett's 30 minute observation on December 8, 1983. Hallett's presence also was upsetting to Brierley who, by this time, questioned the motivation of Hallett's and Halstead's continuing observations.
In Hallett's and Halstead's December 13, 1983 memorandum summarizing Hallett's version of the December 8 observation, Hallett concluded: "I also shall continue to observe and offer assistance and suggestions. If improvement in these areas is not made by you by the end of the first semester (January 23) other action will be taken which would negatively impact on your continuing employment."
In January 1984, Hallett observed that Brierley had assigned her children inappropriate work from the math workbook. The assigned page was a "dot-to-dot" assignment, but Starkey did not allow the children to write in that particular workbook. The children did not know what to do. Two children actually made dots on a blank piece of paper and attempted to do the assignment.
Eleanor Bennett, the elementary math supervisor, made a last visit to Brierley's class on approximately January 13, 1984. On that occasion, Brierley was having difficulty explaining a math concept to a particular child. Her entire attention was on this child, not the rest of the class. Brierley appeared physically exhausted on this particular occasion. During this observation, Brierley was not teaching well, and the class was not a successful one. Bennett did not prepare a report of this observation. Brierley was suspended without pay on February 6, 1984.
After Brierley's suspension, Hallett, Halstead, and others reviewed and reconciled Brierley's grade book, the children's report cards, and the children's assessment profiles.
Brierley's daily class grade book could be understood by her but not by someone else without her explanation. This is a deficiency in her grade book. It could have presented a problem if Brierley had died or otherwise was unable to explain her grade book to a substitute or replacement teacher. It also could have been a problem if a parent did not accept Brierley's explanation. However, no parent had a complaint about Brierley's grade book or a report card grade as compared to grade book grades.
Specifically, Brierley used grade symbols other than the four symbols approved for use on report cards without including a notation or key to translate the symbols to the approved symbols. There was no obvious indication which grades were for tests and which were for seat work or class participation. Brierley knew that the grades in pen were for tests. The grades were not dated.
Brierley also was criticized for not indicating exactly what was being graded. This would require Brierley or a substitute or replacement teacher do additional work to determine and gauge student progress (particularly with the absence of dates for the grades). However, it is acceptable for a teacher to keep this additional detailed information with the children's work folders. While it was shown that it was not possible to "audit" Brierley's grade book using her lesson plan book, it was not shown that this information was not kept with the children's work folders.
Of Brierley's approximately 50 children in social studies, two received report card grades of "needs improvement" although their grades in Brierley's grade book would indicate that these two children's work was "satisfactory." Brierley explained that these children were incapable of satisfactory work but that, to maintain their enthusiasm and desire, she gave them satisfactory grades on homework, seatwork and class participation if they tried their utmost. On the report card, Brierley felt constrained to grade them as needing improvement. Neither child's parents complained.
For the second marking period in social studies, in the 1983-84 school year, grades for seven of Brierley's children were higher than the average of the grades recorded in Brierley's grade book. There were no other discrepancies between the grade book grades and the report card grades for Brierley's 50 social studies students.
Over all, Brierley's grade book was not well organized and was not in the condition in which one would expect a teacher's grade book to be. Upon becoming advised of the condition of the grade book, the appropriate course for the teacher's supervisors to follow would be to work with the teacher and get supervisory help in the grading process. Dismissal would be appropriate only if the teacher did not improve after assistance. (T.323-324.)
The School Board's "Syllabus For Reporting Student Progress," which is mandatory at Starkey Elementary School, requires teachers to not only give grades but to report whether the child is performing below, on or above grade level according to the child's assessment profile which results from performance on achievement tests in the various math skills of the Pinellas County Math System. Comparison of the student profiles to the report cards established that Brierley incorrectly reported this aspect of the children's progress in the case of seven of Brierley's 50 math students.
As previously mentioned, Brierley did not list the names of the children in each skill group in her lesson plans. As a result, it is impossible to do an audit trail of Brierley's lesson plan book and grade book to find out what groups the children had been in and what instruction they had received. The lesson plans give the name of the group and the lesson taught, but there was no way of telling which students received that instruction. This was a matter on which Brierley had received specific instruction by both Bennett and Hallett since May 1983.
Brierley simply entered markings in her grade book consecutively and indiscriminately for tests, seat work, class participation and, in some cases, homework. The format of the grade book would imply that each sixth entry was an average of the previous five entries. But Brierley did not follow this format.
Brierley also had some deficiencies in grouping children in skill groups and timing instruction in various areas for the skill groups by using the student profiles. The extent of her deficiencies was not established with any specificity.
Overall, the children Brierley taught in second grade were as well prepared for third grade as the other second graders and performed approximately as well on achievement tests. The only exception was that one other math teacher, who had been a third grade teacher, seemed to do a better job than any of the other second grade teachers in preparing second graders for third grade math.
There was no evidence of parents' dissatisfaction with Brierley's performance or with their children's performance as a result of being in Brierley's classes. Several parents testified in behalf of Brierley at the final hearing.
Some teachers expressed dissatisfaction with some aspects of Brierley's performance and expressed complaints arising out of working with her. Several other teachers spoke highly of Brierley and expressed their general approval of her and their satisfaction with working with her.
Overall, Brierley was not able to markedly improve her general weakness -- her difficulty with organizational skills. This general shortcoming was the root of her other deficiencies. It was proved that Brierley was deficient in the area of organizational skills and therefore in the areas of disciplining children, lesson planning, grouping children according to ability and teaching the Pinellas County Math System. But whether Brierley is incompetent in any of these areas is a mixed question of fact and law.
In the areas of grading, reporting grades and grade recordkeeping, Brierley was proved to be seriously deficient. However, all of these deficiencies were first raised either shortly before or after Brierley was suspended. Brierley had little or no opportunity to improve in these areas.
CONCLUSIONS OF LAW
A. Case No. 84-0667.
Section 231.36(4)(c), Florida Statutes (1983), provides:
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. 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 employment shall be thereby canceled. In this
case, the School Board's charge is incompetence.
In promulgating Rule 6B-4.09, Florida Administrative Code, the State Board of Education defined "incompetence" for purposes of Section 231.36(4)(c), Florida Statutes (1983):
Criteria for Suspension and Dismissal. The basis for charges on which dismissal action against instructional personnel may be pursued are set forth in Subsection 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
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 (1) or more of 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; or
repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
This rule definition governs the instant proceeding. Cf. Rutan v. Pasco County School Board, 435 So.2d 399 (Fla. 2nd DCA 1983), and cases cited therein. Since the statutes under which this action was commenced are penal statutes, the provisions must be strictly construed in Brierley's favor. See School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980).
Brierley has not been charged specifically with incapacity. Neither the Department nor the School Board presented competent, substantial evidence to prove that Brierley lacks emotional stability, that she lacks adequate physical ability to teach, that she lacks a general educational background, or that she lacks adequate command of her area of specialization. Thus no finding of incompetency can be based on Rule 6B-4.09(1)(b), Florida Administrative Code.
Brierley is not an administrator or a supervisor. Rule 6B- 4.09(1)(a)(3), Florida Administrative Code, is inapplicable to this proceeding.
The evidence does not prove a "repeated failure on the part of [Brierley] to communicate with and relate to children in the classroom to such an extent that pupils are deprived of minimum educational experience."
Accordingly, the issue in this case is whether Brierley is inefficient within the meaning of Rule 6B-4.09(1)(a)(1), Florida Administrative Code, i.e., whether she is guilty of a "repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes). . . "
Section 231.09, Florida Statutes (1983), provides as follows:
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; record keeping; and fulfilling the terms of any contract, unless released from the contract by the school board.
The School Board's initial charging document makes no reference to any rules of the Pinellas County School Board. In its more definite statement, the School Board makes a vague reference to "School Board Rules" but specifies no particular provision. No such rules were introduced in evidence or placed in the record in any form. Without such rules, there can be no finding that she failed to perform any of the duties set forth in Section 231.09. Accordingly, there is no evidence to prove that Brierley is guilty of "inefficiency" within the meaning of Rule 6B-4.09(1)(a)(1), Florida Administrative Code.
B Case No. 84-1412
The Department seeks to discipline Brierley's teacher certificate under Section 231.28(1), Florida Statutes (1983), which provides in pertinent part:
(1) 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:
(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;
(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.
Brierley is included in the definition set forth in Section 228.041(9), Florida Statutes (1983).
This statute, like Section 231.36(4)(c), Florida Statutes (1983), is penal in nature and should be strictly construed. See School Board of Pinellas County v. Noble, supra.
The Department's Administrative Complaint reflects that it seeks to discipline Brierley under subparagraphs (b), (f) and perhaps (h) of Section 231.28(1). Discipline under subparagraph (h) is premised upon alleged violations of Rules 6B-1.06(3)(a), (e) and (f), and 6B-1.01, Florida Administrative Code. But Rule 6B-1.01, Florida Administrative Code, is the "Code of Ethics of the Education Profession in Florida," is aspirational in nature and does not provide that "the penalty for [a violation] is the revocation of the teaching certificate."
Rule 6B-1.06, Florida Administrative Code, provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.
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:
Shall make reasonable effort to protec the student from conditions harmful to
learning or to health or safety.
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
The evidence does not prove that Brierley violated any of these provisions.
Similarly, Section 231.28(1)(f), Florida Statutes (1983), refers to "personal conduct" other than a teacher's incompetency which subjects the teacher to discipline under 231.28(1)(b). It refers to other "personal conduct" which -- because of its negative impact on a teacher's professional relationships with his pupils, their parents, his colleagues, and the community
-- seriously reduces the effectiveness of a teacher regardless of the teacher's level of competence. See, e.g., Jenkins v. State Board of Education, 399 So.2d
103 (Fla. 1st DCA 1981); Boyette v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977). The Department did not prove any such "personal conduct" in this case.
Rule 6B-4.09, Florida Administrative Code, does not apply to disciplinary proceedings under Section 231.28(1)(b), Florida Statutes (1983). Therefore, in Case No. 84-1412 "incompetence" is not restricted to the definition set out in Rule 6B-4.09.
The Department's Administrative Complaint alleges incompetence in the 1980-81, 1982-83 and 1983-84 school years (in Counts I, II and III, respectively) in the areas outlined in the following portions of the following rules:
Rule 6B-5.03, Florida Administrative Code: Administrative and Supervisory Requirements. Competent educators must possess the abilities and skills necessary to perform the designated task. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following administrative and supervisory requirements:
Keep records in accordance with responsibilities designated by law and with accepted practices of the school district.
Utilize available instructional materials and equipment necessary to accomplish the designated task.
Adhere to and enforce administrative policies of the school, district rules and State Board rules, in accordance with Florida Statutes.
Rule 68-5.024, Florida Administrative Code: Analysis of Individual Needs and Individual Potential. The competent educator shall use
or ensure the use of acceptable techniques to analyze the needs and potential of individuals. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following techniques to analyze the needs and potential
of individuals:
Diagnose the entry level and skill of students, using diagnostic tests observations, and student records.
Select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs.
Create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students.
Use individual student interests and abilities when planning and implementing instruction.
Make assignment of tasks and duties consistent with individual abilities and specialities.
Recognize the instructional needs of exceptional children.
Recognize patterns of physical and social development in students.
Rule 6B-5.05, Florida Administrative Code: Instructional Procedures. Each competent educator shall ensure or promote accomplishment of the designated task through selection and use of appropriate instructional procedures. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following instructional procedures:
Establish rapport with students by using appropriate verbal and visual motivational devices.
Use procedures appropriate to accomplish the designated task to include but not be limited to:
Identifying long range goals for a given subject area.
Constructing and sequencing related short range objectives for a given subject area.
Practice instructional and social skills which assist students to interact constructively with their peers by encouraging expressions of ideas, opinions, and feelings.
Give directions for carrying out an instructional activity by assuring that the task is understood and using feedback techniques which are relevant to the designated task.
Utilize information and materials that are relevant to the designated task.
Rule 6B-5.06, Florida Administrative Code: Communication Skills. In communicating with students and educators, each educator, commensurate with job requirements and
delegated authority, shall demonstrate competence with the following communication skills:
Use language and terminology relevant to the designated task.
Use language which reflects an understanding of the ability of the individual or group.
Orally communicate information coherently and logically.
Write in a logical and understandable style with appropriate grammar, spelling and sentence structure.
Comprehend and interpret oral messages.
Extract major ideas or themes from the statements of others.
Encourage individuals to state their ideas clearly.
Rule 6B-5.07, Florida Administrative Code: Management Techniques. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following management techniques.
Resolve discipline problems in compliance with the policies of the school, rules of the district school board and the State Board, and Florida Statutes.
Maintain consistency in the application of policy and practice by:
Establishing routines and procedures for the use of materials and the physical movement of students.
Formulating appropriate standards for student behavior.
Identifying inappropriate behavior and employing appropriate techniques for correction.
Maintain standards of conduct required in Rule 6B-5.07(2), F.A.C.
Use management techniques appropriate to the particular setting.
Rule 6B-5.09, Florida Administrative Code: Evaluation of Learning and Goal Achievement. Each competent educator accepts responsibility commensurate with delegated authority to evaluate learning and goal achievement. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following techniques used to evaluate learning and goal achievement:
Use several types of evaluative techniques, including but not limited to classroom tests constructed by the educator to measure student performance according to criteria based upon objectives.
Provide frequent and timely responses concerning the work attempted and tasks assigned.
Analyze and interpret effectively the results of evaluation for judging instruction, the achievement of stated goals, or the need for further diagnosis.
Utilize the results of evaluation for planning, counseling, and program modification.
Explain methods and procedures of evaluation to those concerned.
Possess the ability to comprehend and work with fundamental mathematical concepts.
Rule 6B-5.10, Florida Administrative Code: Human and Interpersonal Relationships. The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following human and interpersonal relation skills:
Assist students in developing their values, attitudes, and beliefs.
Encourage and support behavior which reflects a feeling for the dignity and worth of other people.
Demonstrate instructional and social skills which assist others to interact constructively.
Provide leadership and direction for others by appropriate example.
Offer constructive criticism when necessary.
Comply with reasonable requests and orders given by and with proper authority.
Assign reasonable tasks commensurate with objectives and designated responsibility.
Demonstrate self-confidence and self- sufficiency in exercising authority.
Apply instructional and social skills in developing positive self-concepts.
Rule 6B-5.11, Florida Administrative Code: Personal Requirements. In assessing the mental or physical health of educators, no decision adverse to the educator shall be made except on the advice or testimony of persons competent to make such judgment by reason of training, licensure and experience. Each educator, commensurate with job requirements sand delegated authority, shall demonstrate competence in the following personal requirements:
Communicate effectively to accomplish the designated task.
Exhibit appropriate control of emotions.
While the foregoing rules outline areas in which teachers are expected to be competent and generally describe expectations in some of those areas, they do not specify where to draw the line between competence and incompetence. Nor have the parties cited any legal authority that does.
Webster's New World Dictionary (2nd Ed. 1970) defines "incompetent": see [IN-2 & COMPETENT] 1. without adequate
ability, knowledge, fitness, etc., failing to
meet requirements; incapable; unskillful 2. not legally qualified 3. lacking strength and sufficient flexibility to transmit pressure, thus breaking or flowing under stress: said of rock structures.
It defines the prefix "in-2":
a prefix meaning no, not, without, non- [insignificant]
And it defines "competent":
1. well qualified; capable; fit [a competent doctor] 2. sufficient; adequate [a competent understanding of law] 3. permissible or properly belonging (with to) 4. Law legally qualified, authorized, or fit--
The type of competence at issue in this case -- based on the competent, substantial evidence presented -- involves Brierley's ability and skills, not her knowledge, qualifications or fitness. While at least some parts of these definitions are circular and not very helpful (particular in the context of a legal proceeding to determine a teacher's competency), they indicate that, in its common usage, "competence" connotes a minimum allowable level of skill or ability. It connotes a level which is less than perfect, less than excellent, less than above satisfactory, and even less than merely satisfactory or fair performance.
In a case seeking to revoke a teacher's certificate on charges of incompetency, incompetency must be proved by clear and convincing evidence. See Reid v. Florida Real Estate Commission, 188 So.2d 8246 (Fla. 2nd DCA 1966).
There is confusing dicta in the decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), suggesting that the "clear and convincing" standard of proof is replaced under the new APA by a "competent substantial evidence" standard of proof. Cf. also Harvey v. Department of Business Regulation, 451 So.2d 1065 (Fla. 5th DCA 1984). But the latter standard always has been, and only can be, a standard for use in appellate review. It does not adequately inform a finder of fact what to do if there is competent, substantial evidence on opposite sides of an issue of disputed fact. Nor does it tell a finder of fact how substantial the competent evidence must be. 8/ The answer to that question is: in disciplinary administrative proceedings, the evidence must be "clear and convincing"; in other administrative proceedings, a preponderance of the evidence is sufficient.
Bowling does state that, in license discipline proceedings, "the critical matters in issue must be shown by evidence which is indubitably as
`substantial' as the consequences." Bowling at 172. This should imply that a teacher's certificate cannot be revoked on charges of incompetence by proof which is sufficient to persuade the finder of fact merely that the teacher "probably" is incompetent (but may not be) or, in other words, that the teacher is merely "more likely" incompetent than competent. Rather, the proof must be sufficient to clearly convince the finder of fact that the teacher is incompetent before such a charge can be sustained and the teacher's certificate revoked.
No competence review of Brierley was performed under Rule 6B- 5.021(3), Florida Administrative Code. The other evidence, taken together, was not sufficient to prove Brierley's incompetence, i.e., her lack of skill or ability, in any of the areas outlined in paragraph 15 above. As to Rule 6B- 5.O3(1), Florida Administrative Code, there was enough evidence to prove that Brierley's performance was seriously deficient in the areas of grading, reporting grades and grade recordkeeping. If that low level of performance had continued after Brierley had been given notice of the deficiencies and an opportunity to improve, there would be sufficient evidence to prove incompetence. But Brierley had little or no opportunity to improve in these areas. Therefore, her alleged incompetence in those areas was not proved.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That petitioner School Board of Pinellas County enter a final order dismissing the charges against respondent Sallie L. Brierley in DOAH Case No. 84-0667; and
That the Education Practices Commission enter a final order dismissing the charges against respondent Sallie L. Brierley in DOAH Case No. 84-1412.
RECOMMENDED this 30 day of November, 1984, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON
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 30th day of November, 1984.
ENDNOTES
1/ Petitioner's More Definite Statement Of The Charges Against The Respondent, served March 27, 19824.
2/ Administrative Complaint, filed before the Division of Administrative Hearings on April 18, 19824.
3/ The parties' proposed findings of fact have been reviewed and considered.
To the extent reflected in these Findings Of Fact, the proposed findings of fact are accepted. To the extent not reflected in these Findings Of Fact, the proposed findings of fact are rejected as either not being proved by competent substantial evidence, as being subordinate, as being redundant, or as being irrelevant.
4/ Paragraphs 5 through 17 of these Findings Of Fact, referring to events that took place during the 1980-81 school year are findings of fact only with respect to the Department's charges. The School Board omitted any reference to the
1980-81 school year in its more definite statement of charges against Brierley.
5/ Specifically, other proposed findings of fact based on Dileo's testimony were omitted either (1) because they would have been based on non-admissible hearsay contrary to Section 120.58(1)(a), Florida Statutes (1983), or (2) because they would be based on evidence not relevant to any area of incompetency which any evidence suggests continues to exist at this time.
6/ Nothing relating to 1981-82 can be used as a finding of fact to support the Department's charges because the Department made no allegations of misbehavior in 1981-82 in its Administrative Complaint. Therefore, paragraphs 18 through 23 of these Findings of Fact are findings of fact only with respect to the School Board's charges.
7/ The following findings of fact relating to the 1982-83 and 1983-824 school years may support the charges of either the School Board or the Department or both.
8/ Bowling also seems to suggest an unworkable "sliding scale" under which the necessary "substantiality" changes depending on the seriousness of the action the agency ultimately takes. Bowling at 171-172.
COPIES FURNISHED:
Usher L. Brown, Esquire School Board of Pinellas
County
Post Office Box 6374 Clearwater, Florida 33518
Richard Donelan, Jr., Esquire Richard H. Frank, Esquire Fire Station No. 8
401 South Albany Tampa, Florida 33606
W. Jerry Foster, Esquire, 616 Lewis State Bank Bldg. Tallahassee, Florida 32301
Ralph D. Turlington Commissioner
Department of Education The Capitol
Tallahassee, Florida 32301
Donald L. Griesheimer Executive Director
Education Practices Commission
125 Knott Building 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. 84-1412
SALLIE L. BRIERLEY,
Respondent.
/
FINAL ORDER
Respondent, SALLIE L. BRIERLEY, holds Florida Teaching Certificate Number 334704. 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), F.S.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on February 28, 1985 to take final agency action. The Petitioner was represented by Wilson Jerry Foster, Esquire. The Respondent was represented by F. Mark Kelly, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact of the Recommended Order, but modifies the finding in paragraph 76 of the Recommended Order to reflect that the only evidence of parents' dissatisfaction with Respondent's performance was in the form of letters received by principal, John DiLeo during the 1980-81 school year. The panel adopts the Conclusions of Law and Recommendation of the Recommended Order.
Therefore, it is hereby ORDERED that the Administrative Complaint against Respondent be DISMISSED.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED this 18th day of April, 1985.
RICHARD RICH, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Sallie L. Brierley has been furnished to Richard Donelan, Jr., Esquire by
U.S. Mail, this 24th day of April, 1985.
KAREN B. WILDE, Clerk
COPIES FURNISHED:
Marlene Greenfield, Administrator Professional Practices Services
Susan Tully, Esquire Attorney General's Office
Judith Brechner, General Counsel
W. Jerry Foster, Esquire
Richard Donelan, Jr., Esquire Fire Station No. 8
401 South Albany Tampa, Florida 33606
J. Lawrence Johnston Hearing Officer
Division of Administrative Hearings The Oakland Bldg. 2009 Apalachee Parkway
Tallahassee, Florida 32301
Dr. Scott Rose, Supt. Pinellas County Schools Post Office Box 468 Clearwater, Florida 33518
| Issue Date | Proceedings |
|---|---|
| May 04, 1985 | Final Order filed. |
| Nov. 30, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 18, 1985 | Agency Final Order | |
| Nov. 30, 1984 | Recommended Order | Consolidated Education Practices Commission/school board dismissal with two standards of proof. Incompetence was not proven. |
