STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RALPH D. TURLINGTON, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3302
)
JOYCE KENT BALDWIN, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: J. David Holder, Esquire
Tallahassee, Florida
For Respondent: Pamela L. Cooper, Esquire
Tallahassee, Florida
A final hearing was held in this case in Ft. Myers, Florida on March 6, 1985. The issue is whether the Education Practices Commission (Commission) should revoke, suspend, or take other disciplinary action against Respondent, Joyce Kent Baldwin (Baldwin). Petitioner, Ralph D. Turlington, as Commissioner of Education (Petitioner), alleges that Baldwin has proved to be incompetent to teach or to perform her duties as an employee of the public school system, a ground for discipline under Section 231.28(1)(b), Florida Statutes (Supp. 1984). Specifically, petitioner alleges that Baldwin has failed to maintain the minimum standards of competency for teachers in the State of Florida set forth in Chapter 6B-5, Florida Administrative Code.
FINDINGS OF FACT 1/
Respondent, Joyce Kent Baldwin (Baldwin) holds Florida Teaching Certificate 320983 issued by the Florida Department of Education covering the areas of elementary education and science. Her certificate has been valid since July 1, 1972.
Baldwin was graduated from the University of Illinois and taught for three years in Illinois.
During the 1972-1973 school year, Baldwin taught at Dunbar Middle School, Ft. Myers, Lee County, Florida as an employee of the Lee County School District. For the school year, Dunbar's principal, Robert J. Shank, evaluated Baldwin's performance using a "Rating Scale For Professional Development." According to the evaluation, Shank rated Baldwin's performance "good": in three of four categories of "Professional Competencies"; in fourteen of fifteen categories of "Instructional Competencies"; and in three of four categories of "Personal Qualities." Shank rated Baldwin: "outstanding" in one category of
"Professional Competencies"; "needs improvement" in one category of "Instructional Competencies"; and "outstanding" in one category of "Personal Qualities." Shank recommended Baldwin for a second annual contract for the 1973-1974 school year.
At the conclusion of the 1973-1974 school year, Shank rated Baldwin "good" in all categories of "Professional Competencies" and "Instructional Competencies" and "outstanding" in all categories of "Personal Qualities." Shank again recommended Baldwin for another annual contract.
At the conclusion of the 1974-1975 school year, Shank again rated Baldwin similarly and recommended her for a continuing contract.
At the conclusion of Baldwin's first year on a continuing contract, Shank rated her performance on a new evaluation form. Shank rated Baldwin above average in all categories of "Personal Qualifications," "Relationships With Others," and "Teaching (skills) Ability." The evaluation form provided for rating a teacher's performance as unsatisfactory, needs to improve, satisfactory, above average, or superior.
For the 1976-1977 school year, the evaluation form was again changed to provide for rating a teacher's performance as either acceptable or needs improvement. An "acceptable" rating signifies performance which meets or exceeds an acceptable level of competency. A "needs improvement" rating indicates action should be taken to bring performance to acceptable level.
Shank rated Baldwin's performance as acceptable in all seventeen categories of responsibilities. Shank made a substantially similar evaluation of Baldwin's performance in each of the school years from 1977-1978 through 1980-1981. 2/ Nor was Baldwin given notice by Shank or any other school administrator or supervisor of deficiencies in her performance as a teacher during the school years from 1973-1974 through 1980-1981.
During the school years from 1977-1978 through 1980 1981, Shank rated the performance of all 30 to 33 of the teachers at Dunbar as "acceptable." 3/ Nonetheless, the evidence was persuasive that Baldwin was a competent teacher during the entire period from 1972-1973 school year through the 1980-1981 school year.
At the start of the 1981-1982 school year, Shank retired, and Steven Cook assumed his first job as a school principal as the new principal of Dunbar Middle School. The change in administration and change in some policies created noticeable but not serious discipline problems at the school. There was a period of adjustment in which Cook and the assistant principal, Eugene Robinson, an incumbent from Shank's administration, decided how to handle discipline problems at the school. For a time at least, there was some inconsistency which resulted in some additional discipline problems. In addition, Cook also changed Shank's policy of allowing students to go to basketball games being played during school hours and his policy of scheduling school dances during regular school hours. Regardless of the merits of this policy change, it had some temporary negative impact on the teachers' ability to maintain discipline in the classroom. The pupils tended to resent not having privileges which their older brothers and sisters had in previous years. In addition, when these privileges were eliminated, teachers no longer had the ability to withhold the privileges in individual cases as a method of discipline.
Near the beginning of the 1981-1982 school year, Cook informally observed Baldwin's classroom. During this short and informal observation, Cook
observed discipline problems and observed that Baldwin did not seem to be actively instructing the class during his observation. Cook continued to make similar short and informal observations of Baldwin's classes on a more frequent basis than he observed most of the other teachers. Frequently, his observations were consistent with the initial observation; sometimes they were not.
On October 27, 1981, Helen Caldwell, the school's science coordinator, made a routine observation of one of Baldwin's science classes. Caldwell observed "some extra noise" at the outset of the class, and made some suggestions to help Baldwin achieve good classroom discipline. However, Baldwin was competent in maintaining discipline in that class. Caldwell observed: "Students continued with noisy anticipation as Mrs. Baldwin began her presentation of the concepts of the laboratory activity. Students began to listen more attentively to Mrs. Baldwin's presentation of the activity. . . .
Mrs. Baldwin kept excellent control as she moved from one table to the other. She gave assistance where needed at each table." In addition, Caldwell observed that Baldwin generally effectively instructed the class that she observed.
On November 13, 1981, Cook made a formal observation of Baldwin's fifth period 8th grade science class. The class consisted of 33 low-achieving children from a low socioeconomic background who were classified "comp.ed." in math and language arts. These pupils are grouped in classes of approximately 18 or less in basic skills classes; two basic skills classes are combined for science and math classes.
Baldwin had a difficult time controlling discipline in the class.
Cook observed that the class began approximately 10 minutes late and that students walked around the room borrowing supplies and calling each other names. Baldwin ignored this activity and did not intervene until two boys began arguing. Baldwin was not able to demand the attention of the entire class at any time during the class period. Three boys in the class did not open their books or work on the assignment at all during the class period. In this particular class, Baldwin was having the children answer questions from a handout she had distributed at the beginning of the class.
Cook recommended that Baldwin develop class rules and enforce them consistently, separate troublesome groups of pupils and convey enthusiasm. He also objected to Baldwin's method of instruction, recommending that she plan daily lessons that relate to the overall concept or goal being taught and make sure that assignments are meaningful and that the pupils understand the purpose of the assignments. Cook recommended regular laboratory activities or demonstrations, followed up with projects and reports for extra credit.
After Cook's November 13 formal observation, Cook continued to make informal observations. These observations were fairly frequent at irregular intervals and were unannounced. Each observation lasted only several minutes, only long enough for Cook to observe generally whether Baldwin had the class under control and whether she was actively giving instruction to which the pupils seemed attentive. Cook observed that some of Baldwin's classes were better run and more successful than the class he formally observed on November 13, and it appeared that Baldwin was attempting to implement Cook's suggestions for improvement. On other occasions, the classes Cook informally observed were not noticeably improved.
By January 2, 1982, Cook had made arrangements to obtain an assistance review from the Department of Education's Professional Practice Services. The written request for the assistance review was made by letter from the Superintendent of Lee County Schools dated January 14, 1982.
On March 2, 1982, Cook made his second and final formal observation of Baldwin's classroom performance during the school year. Cook observed the same class he observed on November 13, 1981. Cook observed the same type and quality of difficulty maintaining discipline and managing the pupils in the classroom. Also, Baldwin gave the wrong filmstrip to one work station, and a poorly prepared handout diminished the effectiveness of the lesson. However, Baldwin did instruct the class on this occasion. In addition, Baldwin's idea of setting up three work stations was effective, and the lesson reflected the main concepts of the electricity unit being taught. Baldwin's individual work with the electromagnet group was effective and kept the students on task.
On March 10, 1982, Cook evaluated Baldwin's performance for the school year. Cook rated Baldwin's performance acceptable in all four categories of "Knowledge Of Subject Matter/Instructional Methods" and "School And District Requirements." Cook rated Baldwin's performance unacceptable in all four categories of "Classroom Management."
In the category of "Teaching Skill," Cook rated Baldwin's performance acceptable in: using student records and other supportive information to determine the pupils' instructional levels; providing instruction at the proper level for pupils; communicating in a coherent and logical manner; using effective evaluative and recording procedures; and preparing and maintaining lesson plans. Cook rated Baldwin's teaching skill unacceptable in the use of a variety of appropriate teaching techniques and in the use of a variety of instructional materials.
In Baldwin's "Interpersonal Relations," Cook rated Baldwin acceptable in: her interaction with all students in a positive manner; her respect for and acceptance of others; and fostering cooperative home/school communications. Cook rated her unacceptable in: providing leadership and direction for others by appropriate example; counseling with pupils concerning student needs; and establishing and maintaining cooperative working relationships.
This evaluation was based upon Cook's formal and informal observations and on Caldwell's observation of Baldwin's classroom performance.
After Baldwin's evaluation, Cook consulted with Thomas Benton, the Director of Personnel Services for the Lee County School District. Benton advised Cook not to do anything except to wait for the Department of Education Assistance Review. Neither Cook nor Benton considered it appropriate to start dismissal or suspension proceedings, or take any other disciplinary action against Baldwin as an employee of the school district. Neither Cook nor Benton gave Baldwin any indication that either of them thought her teaching deficiencies were serious enough to jeopardize either her continued employment as a teacher or her teacher's certificate.
In May, 1982 Cook met with Baldwin to discuss assistance for her during the upcoming 1982-1983 school year. Cook discussed her schedule with her and asked her what he could do to assist her by making her schedule better. Baldwin told Cook that teaching a sixth grade class along with eighth grade classes presented a problem for her and that she did not like it. In response, Cook lightened her schedule by giving her only five academic classes, all eighth
grade, and assigning her to supervise students in the lunchroom for one period. Cook hoped that the schedule change would help Baldwin in the upcoming school year.
After the end of the 1981-1982 school year, the Department of Education submitted its report and recommendations resulting from its assistance review of Baldwin. At the beginning of the 1982-1983 school year, a conference was planned among Benton, Cook, Baldwin and Dunbar's assistant principal, Eugene Robinson. The conference was held on Friday, August 27, 1982. During the conference, Baldwin was shown the Department of Education report and recommendations for the first time, and the group discussed them. Baldwin indicated her general agreement with the recommendations for improvement and advised the group that she already had made changes to implement some of the recommendations. Her attitude regarding the report and recommendations was very positive and professional.
Cook praised Baldwin for her positive attitude and cited specific things that he too had observed that Baldwin had done in the classroom which indicated that she was off to a good start. Cook also made additional suggestions for improvement based on his initial informal observations of Baldwin during the 1982-1983 school year.
The group agreed that classroom management and control of student conduct was the primary area in which the group should focus. It was decided that Robinson would work directly with Baldwin on a program to improve Baldwin's control of student contact. Cook prepared an outline of a professional development plan to be implemented by Baldwin and Robinson. The plan consisted simply of implementing some of the recommendations of the Department of Education and completing a program for improving control of student conduct called "Domain II."
During the 1982-1983 school year, Robinson and Baldwin worked steadily on the Domain II program, and Baldwin satisfactorily completed the program by the end of the school year. As Cook observed in his formal and informal observations, Baldwin showed improvement in some observations and no improvements in others. During September and October 1982, Cook arranged with Mary Gunther, Director of Teacher Education for the Lee County School District, to have Baldwin observed and helped by Dr. Mike Wagner of Florida International University, an expert in classroom management. Wagner observed Baldwin once or twice and made suggestions for improvement. There was no evidence that Wagner observed serious deficiencies.
Cook formally observed Baldwin on November 23, 1982. On this occasion, class began promptly in an orderly manner with a beginning review of the previous day's lesson, in accordance with Cook's suggestions. Baldwin emphasized the important points of the lesson and circulated to assist students. The reminder about the laboratory exercise the next day was a good ending for the class.
The observation reflected significant improvement over the previous year's formal observations. Cook made the following suggestions for continued improvement: that Baldwin stop misconduct quickly and consistently and form basic classroom rules; that Baldwin provide additional assignments for students that finish assignments before the period ends; and that Baldwin continue to develop the classroom management system established with the help of Robinson and Wagner.
Baldwin continued to work with Robinson and satisfactorily progressed through the Domain II classroom management program. Cook made a second formal observation of Baldwin's classroom performance during the 1982-1983 school year on March 7, 1983. As Cook observed, both informally and formally, Baldwin's classes had become more orderly and organized. Assignments were made clear, and students were kept on task. There was less distracting behavior by students, and Baldwin attempted to stop misbehavior quickly. For further improvement, Cook suggested that Baldwin: provide challenges for the more talented by writing lesson plans on at least three levels; conduct more laboratory exercises; encourage students to do project-type activities; and reflect enthusiasm and offer students praise when possible.
In accordance with Cook's observations, Baldwin received an end-of-the year performance evaluation more positive than she received for the previous year. This time, Cook rated her "Classroom Management" as acceptable in the areas of establishing approved classroom procedures and maintaining order in the classroom in a fair and just manner. Cook did not make a second recommendation for additional in-service training in the area of classroom management. Nor did Cook recommend dismissal or suspension proceedings or any other disciplinary action against Baldwin. In the area of "Teaching Skill," Cook rated her use of a variety of appropriate teaching techniques as acceptable. In the area of "Interpersonal Relations," Cook rated Baldwin's performance acceptable in the areas of: providing leadership and direction for others by appropriate example; and counseling with pupils concerning student needs. All other areas of performance were rated the same as the previous year.
In May, 1982, Cook and Baldwin had a routine conference to discuss what Baldwin's role at Dunbar would be in the next school year. Cook advised Baldwin that there would be a need for a health instructor, and Baldwin was interested in taking the job. Cook and Baldwin agreed that Baldwin would be the school's health instructor during the 1982-1983 school year, and Baldwin made arrangements to take and did take necessary additional training during the summer to complete her qualifications for the job.
During the 1983-1984 school year, Baldwin instructed the health course for 10 days before it was deleted for budgetary reasons. As a result, Baldwin had to be involuntarily transferred to Lee Middle School in Ft. Myers, Lee County, Florida. Lee Middle School has a population of approximately 800 students of low socioeconomic background. About 40 percent of the students are hispanic or black.
On Baldwin's arrival at Lee Middle School, she attended a meeting that had been arranged among: the principal, Thomas E. Hutchison; the assistant principal, Ronald E. Davis; Benton; and the school's curriculum specialist, John Wortham. Baldwin was informed that her job would be to team teach a group of "hand selected children." Although Baldwin was not informed of all the facts at the time, the students were selected on the basis of a history of low achievement. At the time they were performing well below their 6th grade level. For this reason, the administration had planned a "self-contained" school environment to be implemented by the team teachers. The team of teachers would teach several of the children's subjects in the hopes that the children would benefit from more personal, one-on-one, elementary school-type instruction. The administration had decided that these children were not ready for the typical middle school environment. These children generally were not severe discipline problems. However, low achievement and inability to comprehend a subject matter tends to create some degree of discipline problems. These children tend to
become inattentive and frustrated. Baldwin had no special education or background experience that would prepare her to teach a class made up of this type of middle school children.
Originally, Lee Middle School's administration planned to limit each self-contained class to fifteen children, ten of whom would have been retained from the previous year. But because of an overall increase in enrollment, the administration departed from the original plan and added to the self-contained classes children who were among the lowest achievers remaining in the regular 6th grade classes. As a result, the self-contained classes grew in size from approximately fifteen to approximately twenty-five children. As more children were added to the self contained program, additional teachers were added to the program. Besides the general disruptiveness of repeated changes in the program, the program suffered from having to repeatedly assimilate new children into the program. New children were being added to the program well into the second half of the school year. The assimilation was made more difficult by the stigma which the children attached to the program. Although the administration's intent was to disguise the distinctiveness of the self-contained program for low achievers, the administration relegated the self-contained classes to portable classrooms separated from the remainder of the school campus. Eventually, false rumors began to circulate among the children that those in the self-contained program were "retarded." Finally, as the size of the program grew, it became more and more difficult to achieve the benefits of a true self-contained program as originally planned for these children by the administration.
As of mid-October 1983, Baldwin's schedule called for her to teach five of the self-contained classes, have one period off, and be responsible for the "time-out room" for one period. The time-out room was designated by the administration as a place to send students whose conduct could not be controlled in the classroom by normal appropriate discipline.
Baldwin's assigned tasks at Lee Middle School would have been difficult for the best of teachers, much less one without any special background or experience teaching these type classes. Although Baldwin had more difficulty than the others, all of the team teachers had difficulty controlling their classes and teaching the subject matter. It was a difficult and frustrating year for all of them, but especially for Baldwin.
Principal Hutchison informally observed one of Baldwin's classes for one to one and one-half minutes early in the 1983-1984 school year. He observed that Baldwin was having difficulty controlling the children and teaching the subject matter. When the assistant principal Davis formally observed one of Baldwin's classes on October 5, 1983, it was one of the worst classes he has ever observed. Some of the children did not have the books needed to work on the assignment Baldwin had given and several of those with books did not do the assignment. Baldwin did not check to see if the students were on task.
Students got up out of their seats without permission during the class. They disobeyed Baldwin's instructions to remain seated, and Baldwin did not challenge or chastise them. Baldwin never got the class' undivided attention. Children talked while Baldwin was attempting to explain math problems at the chalk board. In one case, Baldwin used the term "borrow" instead of the correct term "re- group". Baldwin ended the class fourteen minutes before it officially ended.
Of the 23-24 children in this math class, only four were on 6th grade level; the rest were below grade level. Two of the children later had to be reassigned to the alternative education program for disruptive students and two others had to be reassigned to special education.
After Davis' October 5, 1983 formal observation, curriculum specialist Wortham was called in to assist Baldwin. Wortham made several informal observations during 1983 and made suggestions to Baldwin primarily in the area of classroom management, organization of materials, and the benefits of a beginning review of the previous day's lesson. Wortham noted improvement in some subsequent informal observations with intermittent lapses during which the quality of Baldwin's classes would deteriorate. Baldwin was having serious difficulty controlling her classes and effectively teaching the subject matter.
On November 17, 1983, assistant principal Davis made a second formal observation of Baldwin's classroom performance. This time, Davis observed a reading class. The reading classroom is not part of the self-contained program. There were approximately 37 students in the reading class. Baldwin's performance was improved over her performance on October 5, but was still not without deficiencies. The class should have been asked at the outset if they understood the lesson before beginning the exercise. If several students then had questions (as they did on this day) further explanations or examples would be necessary. Baldwin should have worked problems herself as a means of instruction where appropriate. The textbook and workbook should have been used as a source of exercises, not as a substitute for teacher instruction. In addition, Baldwin sometimes lost eye contact with the class while circulating and answering individual questions.
Davis told Baldwin that she had improved. She had her students do exercises in a reading workbook and spent most of the time answering questions from individual children. The class was very quiet and orderly, and every student stayed seated. Every possible minute of classroom time was used in a productive manner. After this observation, Davis never considered or discussed with Hutchison initiating dismissal or suspension proceedings against Baldwin. Davis never advised Baldwin that she was in danger of such action or license discipline.
By the end of December, 1983, Howard T. Wright replaced Davis as assistant principal at Lee Middle School. Wright made several short, unannounced informal observations of Baldwin's classroom performance. He observed some of the same type difficulties which Davis had observed on October 5, 1983, but not as severe. In addition, Wright was displeased with the number of office referrals Baldwin made out of the time-out room. Frequently, pupils creating disturbances in the classroom continued their misbehavior in the time- out room. Wright believed that Baldwin should have been able to put a stop to this misbehavior so that further referral to his attention would not be necessary.
To assist Baldwin and resolve the time-out room problem, Wright reassigned Baldwin from the time-out room to another reading class in late December 1983 or early January, 1984. In addition, the administration made it possible for her to attend a February 17, 1984 program on assertive discipline ordinarily attended exclusively by elementary school teachers.
On February 28, 1984, Jack Bovee, Lee Middle School's Social Studies Coordinator, observed Baldwin's 6th grade world history class. The class consisted of doing assignments from worksheets which Baldwin distributed at the beginning of class. There was some minor difficulty keeping absolute control of the class. However, for the most part the class worked well. When students had questions, they would raise their hands and wait patiently until Baldwin could get to them. Baldwin spent a large percentage of classroom time circulating
among the students and assisting them in completing their assignments. The room was neat and attractive, displaying many fine examples of student work, along with postcards and pictures of areas under study. There was a copy of well- written and appropriate class rules posted on the front board. Baldwin was implementing some of the assertive discipline strategies in her classes.
Finally, Baldwin utilized almost the entire period for instruction.
To improve, Bovee recommended that Baldwin review the previous day's lesson and its relationship to the day's lesson. He also recommended more verbal directions and instruction. Bovee had several suggestions for maintaining better discipline in the class. Finally, Bovee suggested that Baldwin increase her expectations of what her students can accomplish and express greater enthusiasm for the subject matter.
Overall, Bovee's report did not evidence an unacceptable level of performance.
When Bovee reported his observation to Hutchison, Bovee recommended a Department of Education competency review in light of Hutchison's concerns about Baldwin's performance. Hutchison's concerns came in part from his informal observations but mostly from his review of Davis' observation reports and from his discussions with Wright. Wright had told Hutchison that Baldwin referred more than the average number of students to the time-out room and to Wright for discipline, sometimes under conditions in which it was difficult to determine what actually had occurred in Baldwin's classroom. In addition, it came to Hutchison's attention that Baldwin and her classes often could not hear announcements over the intercom system due to noises in the classroom.
Hutchison followed Bovee's suggestion and asked the Superintendent of Lee County Schools to request a Department of Education competency review. The request was made on April 3, 1984.
On April 13, 1984, Hutchison evaluated Baldwin's performance for the school year. This evaluation was based in small part on his relatively few and short informal observations and mostly on what had been reported to him by Davis, Wright and Bovee. Hutchison rated Baldwin as either unacceptable or in need of professional improvement in all four categories of "Knowledge Of Subject Matter/Instructional Methods." This is the first time Baldwin had ever been rated less than acceptable in any of those areas. In the area of classroom management, Hutchison rated Baldwin: acceptable in creating an enriched and attractive physical environment for learning; unacceptable in establishing approved classroom routines and procedures; and in need of professional improvement in maintaining a classroom environment conducive to learning and in maintaining order in the classroom in a fair and just manner. Hutchison rated Baldwin's "Teaching Skills" acceptable in 5 of 7 categories, but in need of professional improvement in the categories: communicating in a coherent and logical manner; and using a variety of appropriate teaching techniques. Hutchison rated Baldwin acceptable in only 3 of 6 categories of "Interpersonal Relations." He rated her unacceptable in: interacting with all students in a positive manner and providing leadership and direction for others by appropriate example. He rated her in need of professional improvement in the area of counseling with pupils concerning student needs. Hutchison rated Baldwin's performance as acceptable in all 5 categories of "School And District Requirements." As an expression of her disagreement with the rating, Baldwin refused to sign the evaluation.
After Hutchison rated Baldwin, Wright made his first and only formal observation of Baldwin's classroom performance. Wright's evaluation was
consistent with Hutchison's rating, but did not specify all of the deficiencies for which Hutchison had downgraded Baldwin. Wright noted that the world geography class consisting of independent reading and assignments did not fill the last ten minutes of the class. Wright suggested that the teacher design a class to last for the entire period. He stated that the class should have included "vocabulary development, reading comprehension," and "finding the main idea." He also stated that student questioning should reiterate the important concepts of the lesson and that student responses should be met with specific academic praise and teacher amplification. Individual responses, rather than answers in unison, should be encouraged. Baldwin circulated to assist the students, but tended to ignore the rest of the class while she was helping.
Meanwhile, several students were sharing answers with their neighbors. Finally, Wright admonished Baldwin to require consistent adherence to classroom rules and to deal with violators rather than ignore them.
On or about April 18, 1984, the Department of Education contacted Carolyn Voke to assign her the job of performing a competency review of Baldwin. Baldwin was advised that Voke would conduct a "professional review . . . to determine whether action should be taken that might affect [Baldwin's] position with the district." To that point, neither Hutchison, Wright, nor anyone else had advised Baldwin that either her job at Lee Middle School was in jeopardy, as required by Rule 6B-4.08, Florida Administrative Code, or that her teacher certificate was in jeopardy. Baldwin received notice of the "professional review" approximately one week before Voke's scheduled review on May 2 - 4, 1984.
Voke received training to perform competency reviews in 1974. She performed one assistance review in 1974 but had performed neither another assistance review nor her first competency review until she reviewed Baldwin's performance. Voke's experience and background is teaching middle school children but not the type of classes Baldwin was being required to teach at Lee Middle School. On the contrary, Voke's area of expertise is teaching gifted children.
During the competency review, Voke uncovered several apparent technical violations of school policies which no school administrator had ever perceived as a problem with Baldwin's performance. Some of these apparent violations and deficiencies could have been explained if Voke had only discussed them with Baldwin. Instead, Voke simply prepared a detailed report of her observations and conclusions.
Voke also observed during the competency review some of the same difficulties which Baldwin had had all year controlling discipline in her classroom and teaching the subject matter to the pupils. These observations took place most of the school day on May 2, but on May 3 and 4, Voke devoted most of her time to visiting other classrooms and reviewing facilities, student records and other materials.
During her observations, Voke did not see any of Baldwin's students with a textbook.
On two occasions, Voke observed students leaving Baldwin's class without first obtaining permission. On neither occasion did Baldwin realize the students were gone. The Lee County School Student Handbook contained an established policy that students are required to receive a pass from the teacher
in order to leave the classroom. On one occasion, Baldwin failed to recognize or appropriately resolve a situation involving a physically developed seventh grade girl purposefully distracting boys during class time.
Voke observed that Baldwin engaged in little verbal communication with her students concerning educational subject matter. Voke observed very little actual teaching. During one class, Voke observed that Baldwin passed out study questions and directed the students to fill in the blanks without giving any directions or engaging in any preliminary discussion.
Voke observed that Baldwin failed to enforce classroom rules consistently. Baldwin instructed students to raise their hands if they needed help. But instead of helping those with raised hands, Baldwin assisted students who ignored her directions by flocking around her. There were numerous cases of off-task student behavior and student misbehavior.
One class period in particular was "bedlam." Five students were trying to do their assignments, one student was combing her hair, students were turned around talking and moving desks, and only a handful of students were trying to fill out the study sheet. During another class, Baldwin was administering a timed reading test, but the students were looking at magazines, talking combing their hair, writing notes, reading notes and doing other assignments. There also was a lack of classroom discipline or control in Baldwin's fifth period social studies class of seventh graders and in her second period seventh grade reading class of May 4, 1984.
Voke observed that Baldwin's pupils had little respect for her. On one occasion, a student whistled for Baldwin for help, and she went over to help him. Students used profanity frequently in Baldwin's classroom, and Baldwin did not attempt to correct this misbehavior at the time of the infraction. Baldwin failed to set the proper example for students in several respects. Once, after instructing the students to listen to the principal's announcements on the intercom, she continued to set up a film projector and talked to a student assisting her while the announcements were being made. When school news came on the classroom television monitor, Baldwin instructed her students to watch the news, yet she herself continued to work at her desk, ignoring the news report.
Many of the students Voke observed to be disciplinary problems in Baldwin's classes were much better behaved in their other classes. By comparison, many were well-mannered, attentive, productive in other classrooms.
Voke summarized her observation:
[Baldwin] does not teach and is incapable of coping with routine, day-to-day discipline problems, let alone the significant discipline problems she appears to have in several of her classes.
Based on her observation, Voke concluded that Baldwin is incompetent as a classroom teacher.
Dunbar Middle School principal, Steven Cook, also testified that, in his opinion, Baldwin is incompetent as a classroom teacher.
In addition, Howard T. Wright, Assistant Principal at Lee Middle School, testified that, in his opinion, Baldwin is incompetent as a classroom teacher.
Lee Middle School Principal, Thomas Hutchison, also expressed his opinion that Baldwin in incompetent as a classroom teacher. However, Hutchison's opinion is based in large part upon his reliance upon the opinions of Wright and Voke.
These four opinions that Baldwin is incompetent as a classroom teacher, while certainly probative evidence on the issue, are not sufficient in light of all the evidence taken together to support a finding of fact that Baldwin is incompetent. Baldwin's competence or incompetence therefore becomes a mixed question of fact and law.
There is no evidence that any parent or fellow teacher ever complained of Baldwin's performance as a classroom teacher. Nor is there any evidence that pupils assigned to Baldwin learned less than other similarly talented pupils assigned to other teachers at either Lee or Dunbar Middle School.
CONCLUSIONS OF LAW
Petitioner seeks to discipline Baldwin's teacher certificate under Section 231.28(1), Florida Statutes (1983), 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:
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(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;
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Baldwin is included in the definition set forth in Section 228.041(9), Florida Statutes (1983).
This statute is penal in nature and should be strictly construed. See School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 180).
Rule 6B-4.09, Florida Administrative Code, does not apply to disciplinary proceedings under Section 231.28(1)(b), Florida Statutes (1983). Therefore, "incompetence" is not restricted to the definition set out in Rule 6B-4.09.
Petitioner's Administrative Complaint alleges incompetence in the areas outlined in the following portions of the following rules:
Rule 68-5.03, 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 accepted practices of the school district.
Supervise and evaluate others in accordance with law and accepted practices of the school district.
Recognize the role and function of community agencies and groups as they relate to the school.
Utilize available instructional materials and equipment necessary to accomplish the designated task.
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Rule 68-5.04, 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:
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Recognize the instructional needs of exceptional children.
Recognize patterns of physical and social development in students.
Rule 68-5.05, Florida Administrative Code:
Instructional Procedures. Each competent educator shall ensure or promote
accomplish ment 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.
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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.
* * *
Rule 68-5.06, 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.
* * *
Rule 68-5.07, 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.
Rule 68-5.09, Florida Administrative Code:
Evaluation of Learning and Goal Achievement. Each competent educators 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:
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.
* * *
Rule 68-5.10; 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.
* * *
(4) Provide leadership and direction for others by appropriate example.
* * *
(8) Demonstrate self-confidence and
self-sufficiency in exercising authority.
Rule 68-5.11, 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 and delegated authority, shall demonstrate competence in the following personal requirements:
* * *
(2) Communicate effectively to accomplish the designated task.
* * *
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 Baldwin's ability, skills, and her knowledge, not her 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, ability or knowledge. See Rule 68-5.01, Florida Administrative Code. 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 846 (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 is the proper role of the Hearing Officer (or any other trier of fact for that matter) to choose between two possible resolutions of a factual dispute, both of which often are supported by competent; substantial evidence. The appellate standard of proof is a threshold test to ensure that there is good enough evidence in the record, taken as a whole, to support the choice of the finder of fact in resolving the factual dispute. It would not adequately inform a finder of fact what to do when there is competent, substantial evidence on opposite sides of an issue of disputed fact. Nor would it adequately tell a finder of fact how substantial the competent evidence must be. 4/ 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.
By suggesting that the standard of proof which binds the trier of fact should be the same as the appellate standard of proof the Bowling dicta imply that only one resolution of a disputed issue of fact can be supported by competent, substantial evidence. In effect, this would subject all findings of fact challenged in appellate review to a process by which the appellate court reweighs the evidence. Such a legal conclusion would render the role of the finder of fact all but meaningless, directly contrary to the legislative purpose of Chapter 120.
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.
As stated in paragraph 49 of the Findings Of Fact, the evidence tending to prove incompetence was not so persuasive as to support a finding of fact that Baldwin is incompetent as a classroom teacher. Therefore, the question of Baldwin's competence becomes a mixed question of law and fact. It is relatively easy to report the subsidiary factual findings as reflected in the Findings Of Fact. It also is easy to report opinion testimony that Baldwin is incompetent as a classroom teacher. But when the evidence is only as persuasive as it was in this case, the question arises as to whether those rendering expert opinions are using the standard for competence which properly are established only by the Education Practices Commission. Without more guidance than is available as to what passes or fails under the Commission's standard for competence, the answer to this question is very difficult.
Baldwin's competence as a classroom teacher is suspect in only two general areas: classroom management and discipline; and effective instruction of subject matter. Referring to the provisions of Chapter 6B-5, Florida Administrative Code, these two general areas described more particularly as follows:
Rule 68-5.07(1) required Baldwin to competently resolve discipline problems in compliance with the policies and the rules of the district school board. As reflected in the Findings Of Fact, Baldwin frequently failed to discipline students who violated school rules and classroom rules failed to consistently discipline students who violated classroom rules, failed to administer discipline fairly and equally among students in her classroom and generally failed to administer discipline in her classroom. There were occasions when Baldwin permitted students to walk out of her classroom without permission or a written pass in violation of procedures set out in the Lee Middle School Teacher's Handbook and the Lee Middle School Student Handbook. Sometimes she did not realize that students had left her classroom during class time. On another occasion, Baldwin failed to recognize or appropriately resolve a situation involving a physically developed seventh grade girl purposefully distracting the attention of boys during class time.
Rule 6B-5.07(2)(a) required Baldwin to competently establish routines and procedures for the use of materials and physical movement of students in her classroom. She established a rule by which students who have questions or need assistance should raise their hands for help. Instead of following this rule, Baldwin frequently helped students who did not raise their hands but rather called out or even whistled to her. Baldwin did not maintain a routine procedure insisting students begin and end class periods in a quiet, orderly fashion.
Rule 6B-5.07(2)(c) required that Baldwin competently maintain consistency in the application of policy and practice by identifying inappropriate behavior and employing appropriate techniques for its correction.
Baldwin often ignored or failed to recognize violations of school rules and classroom rules by students. Her enforcement of school and classroom rules was not always consistent.
Rule 6B-5.07(3) required Baldwin to competently maintain standards of conduct by students. Baldwin had serious difficulty controlling student conduct in her classroom. She allowed students to treat her rudely and verbally abuse her. As mentioned, she did not always consistently enforce rules, sometimes punishing some students for an offense, while allowing other students to commit the same offense unpunished. Baldwin frequently was unable to keep her students on-task. Finally, Baldwin was unable to get her students to remain in their assigned seats.
Rule 6B-5.05(1) required Baldwin to competently establish rapport with her students by using appropriate verbal and motivational devices. Baldwin's difficulty maintaining classroom discipline impacts on this requirement, too.
It is difficult to say which was the cause and which was the effect.
Finally, Rule 6B-5.10(8) required Baldwin to competently demonstrate self-confidence and self-sufficiency in exercising authority. Again, because of Baldwin's difficulty maintaining classroom discipline she could not be self sufficient, and her self-confidence could not help but be eroded. None of the other provisions of Chapter 6B-5, Florida Administrative Code, are designed to cover the type of difficulties that Baldwin was having in her classrooms.
Having found the facts and identified the areas of competence to which they are pertinent, the next question is whether Baldwin's difficulties in those areas establish incompetence. The evidence is clear that Baldwin's forte is not classroom discipline. But the type of classes she was assigned to teach at Lee Middle School and the type Steven Cook formally observed during the 1981-1982 school year at Dunbar Middle School would have been difficult for any teacher. Other teachers can do and do a better job of maintaining discipline and effectively teaching them than Baldwin does. But a teacher should not have her certificate revoked because she has serious difficulties teaching under some of the most unfavorable circumstances one is likely to confront in a Florida middle school. In effect, it may have been proved that Baldwin is incompetent to teach those type classes but not that she is incompetent as a classroom teacher in general.
There also was evidence that Baldwin frequently did not actively instruct in her classes. To paraphrase, observers often stated that "there was no teaching going on" in her classroom. Some of this probably was a result of the discipline problems Baldwin was having. In addition, no rule or clearly enunciated policy of the Commission requires or even recommends that teacher directed verbal instruction be emphasized by Florida's teachers. Under the law as it now stands, Baldwin's method of instruction is an acceptable alternative. Accordingly, Baldwin cannot be said to be incompetent for her choice of teaching method, particularly in the absence of any complaints from parents, students or teachers as to the results of her teaching methods or any evidence suggesting that Baldwin's pupils learn less than other similarly talented pupils.
Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Education Practices Commission enter a Final Order dismissing the charges against Respondent, Joyce Kent Baldwin, in this case.
RECOMMENDED this 1st day of July, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1985.
ENDNOTES
1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
2/ Ruling was reserved on petitioner's hearsay objection to the introduction of Baldwin's documentary evidence offered in support of a finding of the facts set forth in paragraphs 3 through 7 of these Findings Of Fact (Respondent's Exhibits
5 through 15 for identification). Ruling is now made that the objection is overruled, and Respondent's Exhibits 5 through 15 are received in evidence.
3/ Ruling was reserved on petitioner's objection to the introduction of the rebuttal testimony of Gloria Newton offered in support of a finding of this fact. Baldwin's objection is now overruled, and Newton's testimony is ruled admissible.
4/ Bowling 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 171-1724.
COPIES FURNISHED:
J. David Holder, Esquire
P. O. Box 1694
Tallahassee, Florida 32302
Pamela Cooper, Esquire
P. O. Box 1547
Tallahassee, Florida 32302
Karen Barr Wilde Executive Director
Education Practices Commission
125 Knott Building Tallahassee, Florida 32301
Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 01, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 01, 1985 | Recommended Order | Rule grounds for dismissal don't apply to teacher certificate discipline. Inability to handle particular assignment didn't prove incompetence. |
JIM HORNE, AS COMMISSIONER OF EDUCATION vs NATALIE WHALEN, 84-003302 (1984)
ORANGE COUNTY SCHOOL BOARD vs RUSSELL BINGHAM, 84-003302 (1984)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs BRIAN RONEY, 84-003302 (1984)
ORANGE COUNTY SCHOOL BOARD vs ROBERT AGOSTINI, 84-003302 (1984)
KENNETH CROWDER vs JOHN WINN, AS COMMISSIONER OF EDUCATION, 84-003302 (1984)
