STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0666

)

LAWRENCE J. FEREARA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 27-30, 1986 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

Post Office Box 24690

West Palm Beach, Florida 33402-4690

For Respondent: Thomas W. Young, III, Esquire

208 West Pensacola Street Tallahassee, Florida 32301

BACKGROUND

This matter began when petitioner, School Board of Palm Beach County, issued a petition for dismissal on February 26, 1986, advising respondent, Lawrence J. Ferrara, an instructional employee employed as a classroom teacher by petitioner, that he was dismissed effective February 19, 1986, without pay, for committing acts of misconduct, gross insubordination and incompetency beginning in the school year 1981-82 and continuing through the date of his dismissal. By amendment authorized on May 11, 1986, petitioner added the charge of willful neglect of duty.

According to the lengthy and detailed petition for dismissal, respondent was cited for needing improvement in the areas of discipline of students, attending extracurricular activities, teaching in a manner in which all students in the class could comprehend, and relating in a more positive manner with his peers during school year 1981-82. During the following school year, it is charged he was criticized by "several students" as being a "poor teacher" and a "poor disciplinarian who would call students names during class time," had "numerous students" referred for discipline, and had both students and parents request that students be removed from his class. It is also alleged that respondent was "unresponsive to the educational complaints and concerns expressed by parents" during parent conferences, and that on January 28, 1983, respondent was given written notice that his conduct was "inappropriate." It is further charged that respondent did not complete lesson plans as required, did

not cooperate when administering standardized tests, lost or could not account for a majority of text books issued to him, refused to participate in required school functions, and was unable or unwilling to improve his professional relationship with his peers. In his 1982-83 school year evaluation, the complaint alleges he was again cited as needing improvement in five specific areas. The following year, his first semester evaluation reflected deficiencies in three areas, and it is alleged he argued with four students in class one day calling them names. It is charged he had an excessive amount of student referrals for disciplinarian reasons, had deficiencies in four areas for second semester, and issued grades of D and F to a majority of his students. In school year 1984-85, respondent was observed by three administrative personnel and found to be deficient in various classroom performance areas. In that school year's first semester, he was placed on probation and told to correct and improve his deficiencies in three areas. Despite this, it is charged Ferrara continued to refer an excessive number of students for minor disciplinary reasons, called students names, gave a large number of students poor grades, and was the subject of various complaints from students and parents. His probation was then extended to November 1, 1985. During the first semester of school year 1985-86, it is alleged he improperly threatened a student with failure if she remained in his class, and continued to use embarrassing and disparaging remarks to students. Such persistent and continued conduct, according to the Board, constituted a basis for dismissal.

Respondent disputed these allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1985), to contest the action. The matter was referred by petitioner to the Division of Administrative Hearings on March 3, 1986, with a request that a hearing officer be assigned to con duct a formal hearing.

By notice of hearing dated March 26, 1986, a final hearing was scheduled on April 28-May 1, 1986, in West Palm Beach, Florida. Upon request of respondent, the final hearing was rescheduled to May 27-30, 1986 at the same location.

At final hearing, petitioner presented the testimony of Catherine Thornton, Sally Hennard, David L. Culp, Sandra P. Cowne, Linda D. Chubbuck, Patricia S. Konttinen, Patricia K. Martin, Elizabeth A. Konen, Earl Higgs, Raymond J. Paton, Debbie Simpson, Melinda H. Wong, Jackie Casabona, Tammy Huebner, Dawn Gussie, Kristin E. Ohrstrom, Patricia Ann Puskar, Nancy Cline, Lisa Oxford, Karen Kirby, Elizabeth A. Burrows, Jill Poole, Christopher M. Lawhon, Gail L. Collins, Sandra Zach, Michael Holt, Rhonda K. Burtchall, Trista Mlynczak, Amy McCarthy, Mike Lott, Mary S. Sandt, Robin L. Thomas, Mona M. Jenson, H. W. Berryman and Charles

L. Thornton. It also offered petitioner's exhibits 1 - 121. All were received in evidence. Respondent testified on his own behalf and presented the testimony of Danny 0. Dunham, I. Jeffrey Pheterson, Kenneth L. Beard, Edward Grimes, Carolyn Gable, Michael Vincent, Nancy Loucks, Robert C. Roadarmel and Gary Weed. He also offered respondent's exhibit 1 which was received in evidence.

The transcripts of hearing (eight volumes) were filed on June 20, 1986. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on July 10 and 14, 1986, respectively. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended order.

The issue is whether respondent should be dismissed as an instructional employee of the Palm Beach County School Board for the reasons set forth in the petition for dismissal, as later amended.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Introduction

   
   

   1. At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12.

      
      

   2. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year.

      
      

   3. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable.

      
      

   4. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145.

      
      

   5. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students.

      
      

   6. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all

      teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year.

      
      

   7. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control."

      
      

   8. Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times."

      
      

   9. The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment.

      
      

2. School Year 1981-82

   
   

   1. In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session.

      
      

   2. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their

      advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action.

      
      

   3. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher.

      
      

   4. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance.

      
      

   5. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach.

      
      

   6. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave.

   7. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester.

      
      

   8. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength.

      
      

   9. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students.

      In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions.

      
      

   10. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year.

       
       

   11. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset.

       
       

   12. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held.

       
       

   13. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects.

3. School Year 1982-83

1. Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton.

   
   

2. While teaching a class in November 1982, respondent caught a student,

   K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident.

   
   

3. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983.

   
   

4. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment.

   
   

5. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom.

6. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct.

   
   

7. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went.

   
   

8. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers.

   
   

9. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes.

   
   

10. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks.

    
    

11. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day.

    
    

12. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He

    also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance.

    
    

    1. School Year 1983-84

       
       

13. In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/

    
    

14. Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair.

    
    

15. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot.

    
    

16. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara.

    
    

17. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior.

    
    

18. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time.

    
    

19. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them

    in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute.

    
    

20. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman.

    
    

21. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department.

    
    

22. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies.

    
    

23. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him.

    
    

24. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also

    noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984.

    
    

    1. School Year 1984-85

    
    

25. On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office.

    
    

26. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year.

    
    

27. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some

    35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance.

    
    

28. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them.

    
    

29. On September 19, 1984, at Thornton's request, the area administrator,

    H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take

    less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture.

    
    

30. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was

    also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr.

    Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed.

    
    

31. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen.

    
    

32. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984.

    
    

33. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment.

    
    

34. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend

    the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part.

    
    

35. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended.

    
    

36. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother.

    
    

37. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given.

    
    

38. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met.

    
    

39. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve.

    
    

    1. School Year 1985-86

       
       

40. Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This

    gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status.

    
    

41. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were

    24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency.

    
    

42. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance.

    
    

43. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent.

    
    

44. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes."

    
    

45. Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even

    though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration.

    
    

46. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students.

    
    

47. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions.

    
    

48. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired.

    Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time.

    
    

    1. Respondent's Case

    
    

49. Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again.

    
    

50. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways.

    
    

51. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his

    deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail.

    
    

52. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled.

    
    

53. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner.

    
    

54. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses.

    
    

55. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used.

    
    

56. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process.

    
    

57. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.

    
    

    CONCLUSIONS OF LAW

    
    

58. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

59. Subsection 231.36(4)(c), Florida Statutes (1985), provides in part:

    
    

    1. Any member of the . . . instructional staff . . . 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 . . . misconduct in office, incompetency, gross insubordination,

       willful neglect of duty . . . (Emphasis added)

       
       

       Here petitioner has charged that Ferrara's conduct during the years 1981 through 1985 equated to misconduct in office, incompetency, gross insubordination and willful neglect of duty within the meaning of the foregoing statute. These terms are defined in Rule EB-4.O9, Florida Administrative Code, as follows:

       
       

       1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapaci- ty. Since incompetency is a relative term, an authoritative decision in any individual case may be made on the basis of testimony by members of a panel of expert witnesses appro- priately appointed from the teaching profes- sion 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.

          1. 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 communi- cate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience;

             * * *

             1. Misconduct in office is defined as a violation of the Code of Ethics of the Educa- tion Profession as adopted in Rule EB-1.01, Florida Administrative Code, and the Princi- ples of Professional Conduct for the Educa- tion Profession in Florida as adopted in Rule 6B-1.O6, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

             2. Gross insubordination or willful neglect of duties is defined as a constant or contin- uing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

             
             

             Petitioner further alleges that respondent's incompetency arises from his inefficiency as defined in Rule EB-4.09(1)(a), Florida Administrative Code. It next charges that the misconduct in office arises from violations by Ferrara of the Code of Ethics as contained in Rules 6B-1.O1(2) and (3) and 6B- 1.06(3)(a)(e),(4)(b) and (5)(d)(e), Florida Administrative Code. Those ethical considerations read as follows:

             6B-4.09 Code of Ethics of the Education Profession in Florida.

             * * *

             1. The educator's primary professional concern will always be for the student and for the development of the student's poten- tial. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

             2. Aware of the importance of maintaining the respect and confidence of one's col- leagues, of students, parents, and other

             ,members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

             6B-1.06 Principles of Professional Conduct for the Education Profession in Florida.

             * * *

             1. Obligation to the student requires that the individual:

                1. Shall make reasonable effort to protect the student from conditions harmful to learn- ing or to health or safety.

                   * * *

                   (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

                   * * *

             2. Obligation to the public requires that the individual:

                * * *

                (b) Shall not intentionally distort or mis- represent facts concerning an educational matter in direct or indirect public expres- sion.

                * * *

             3. Obligation to the profession of education requires that the individual:

             * * *

             1. Shall not intentionally make false or malicious statements about a colleague.

             2. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

             * * *

             
             

             Finally, the charge of gross insubordination and willful neglect of duty is founded upon an alleged violation by Ferrara of Rule 6B-4.09(4), Florida Administrative Code. Each charge will be dealt with separately.

             
             

60. According to Rule 6B-4.O9(1), incompetency may be established by showing that an employee is inefficient or incapacitated. In this case, it is alleged that Ferrara was inefficient because (a) he repeatedly failed to perform duties prescribed by rules of petitioner and to fulfill the terms of his contract, and (b) because the students were deprived of a minimum educational experience as a result of Ferrara's failure to communicate with and relate with the students.

61. The evidence is clear and convincing that Ferrara repeatedly violated a term of his contract during the relevant years. More specifically, he failed to submit daily lesson plans in advance during a four year period from 1981 through the fall of 1985. (Subsection E4. of Article III) This constitutes a "repeated failure to perform duties prescribed by law" and equates to inefficiency under Rule 4B-6.O9(1)(a), Florida Administrative Code. In its proposed order, petitioner has not specifically identified the other duties prescribed by rule and contract which form the basis for the alleged violation. It is noted, however, that there is no school board rule or contract provision which specifically requires Ferrara to attend open house or graduation. Neither was there shown to be a written school board rule which makes such attendance compulsory. Further, the evidence is not sufficient to establish that Ferrara repeatedly failed to adhere to duty hours since the testimony on this point was either in general terms, or only pertained to a few specific instances.

    Finally, although the evidence establishes that Ferrara had numerous and frequent disciplinary problems throughout the years, these problems were not so extensive as to deprive the students of the minimum educational experience which Rule 6B- 4.09(1)(a) refers to.

    
    

62. The next charge pertains to misconduct in office, which is broadly defined as a violation of the Code of Ethics as promulgated in Rules 6B-1.01 and 6B-1.06, Florida Administrative Code, and which is so serious as to impair the individual's effectiveness in the school system. The relevant portions of the Code of Ethics are found in sections (2) and (3) of Rule 6B-1.01 and subsections (3)(a), (3)(e) , (4)(b) , (5)(d) and (5)(e) of Rule 6B-1.06.

    
    

63. The evidence supports a conclusion that after 1981 Ferrara's concerns were not "for the student and for the development of the student's potential." (Rule 6B-1.01(2), F.A.C.) Rather, his chief concerns were his lawsuit and his unyielding efforts to be reassigned to the eleventh grade. Because of this, both the students and their potential for development were neglected. At the same time, by maintaining admittedly poor relations with his peers, students and parents, he contravened Rule 63-1.01(3), Florida Administrative Code. The evidence also supports a conclusion that by continually calling his students derogatory names such as "jerk," "jackass," "immature" and "stupid," Ferrara "intentionally exposed his students to unnecessary embarrassment or disparagement." (Rule 63-1.06(3)(a), F.A.C.) The remaining ethical violations have not been established. The next inquiry is whether the above three violations are so serious as to impair Ferrara's effectiveness as a teacher at JIL. The case of Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981) is instructive in this regard and holds that in order to be guilty of misconduct in office, one's conduct must adversely affect the teacher's relationship with the public or school administration, and must have a bearing on the teacher's exercise of duties. It follows that if the conduct meets these criteria, the teacher's effectiveness as a teacher has been impaired. In the case at bar, Ferrara's ethical violations clearly affected his relationship with the public and school administration, and had a bearing on his duties. The only logical inference to draw from this is that his effectiveness as a teacher was likewise impaired. This inference is supported by the testimony of Thornton, the principal, who also reached this conclusion. Therefore, it is concluded that-the charge of misconduct in office has been sustained.

1. Ferrara is next charged with gross insubordination by his constant or continuing, intentional refusal to obey orders. To constitute gross insubordination, the conduct must be continual in nature and not one isolated act of contempt. Smith, 405 So.2d at 185. Here the record amply demonstrates

   that on a number of occasions Ferrara, after being given reasonable and lawful orders, (a) failed to submit adequate and timely lesson plans; (b) failed to submit all required progress reports; and (c) failed to cease making disparaging remarks to students. Having established this conduct, it is concluded that the charge of gross insubordination has been sustained.

   
   

2. The final charge involves the allegation that Ferrara is guilty of willful neglect of duty. Here again the evidence establishes that Ferrara, despite having been given reasonable and lawful orders, repeatedly failed to provide adequate and timely lesson plans over a four year period, failed to provide progress reports during a two year period, and neglected to attend open house and graduation for four consecutive years. 3/ By doing so, he has violated Rule 6B-4.09(4), Florida Administrative Code, and Subsection 231.36(4)(c), Florida Statutes (1985).

   
   

3. Although respondent suggests he was not given adequate time or means to comply with the deficiencies noted by his superiors, the record provides a clear picture of either Ferrara having been given ample time and resources by which to cure his deficiencies, or with having refused to accept such advice, and assistance. It is further concluded the methods used by the School Board comply with applicable school board rules governing the rehabilitation process and correction of deficiencies.

   
   

4. Subsection 231.36(4)(c), Florida Statutes (1985), provides the range of penalties which the School Board may impose in this proceeding:

If the charges are sustained, (the school board) shall determine either to

dismiss the employee or fix the terms under which he may be reinstated.

Through counsel, petitioner recommends that respondent be dismissed, thereby sustaining the Board's earlier action on February 19, 1986. Aside from his contention that the charges are without merit, Ferrara asks that he be given his old eleventh grade teaching assignment and that he be given course work and observations to assist him in classroom management and attitude adjustment.

Given the nature of the charges, and the fact that his effectiveness as a teacher at JIL has been impaired, Ferrara's contract should be terminated, and he be dismissed as an employee of the School Board. 4/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency),

misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board.

DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.

ENDNOTES

1/ Section B of Article IV of the CTA contract provides for teachers to voluntarily transfer to another school by March 1 of each year.

2/ This requirement is embodied in Section B of Article III of the CTA contract.

3/ It should be noted that Ferrara was given lawful oral orders by Thornton to attend open house and graduation. By failing to do so he was guilty of gross insubordination. This contrasts with the earlier charge that such conduct also constituted inefficiency. However, the validity of the earlier charge rested upon their being written rules or contractual provisions making such attendance mandatory. No such rules or provisions existed.

4/ This is not to say that Ferrara cannot teach in an effective manner at another school and in another environment. But here the breach is so wide, and the violations so apparent and long-standing, that termination is clearly justified.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0666 PETITIONER:

1. Covered in background and finding of fact 4.

2. Covered in findings of fact 6 and 8.

supplement or clarify other competent testimony.

1. Covered in finding of fact 27.

2. Covered in finding of fact 27.

3. Covered in finding of fact 27.

4. Covered in finding of fact 22.

5. Covered in finding of fact 27.

6. Covered in finding of fact 20.

7. Covered in finding of fact 29.

8. Covered in finding of fact 30.

9. Covered in finding of fact 31.

10. Covered in finding of fact 33.

11. Covered in finding of fact 33.

12. Covered in finding of fact 35.

13. Covered in finding of fact 36.

14. Covered in finding of fact 39. The second sentence pertains to school year 1982-83 rather than school year 1983-84 and has been covered in finding of fact 28.

15. Covered in finding of fact 38.

16. Covered in finding of fact 37.

17. Covered in finding of fact 37.

18. Covered in finding of fact 37.

19. Rejected as being unnecessary.

20. Covered in finding of fact 32.

21. Covered in finding of fact 32.

22. Covered in finding of fact 32.

23. Covered in finding of fact 32.

24. Covered in finding of fact 32.

25. Rejected as being unnecessary.

26. Covered in finding of fact 37.

27. Covered in finding of fact 33.

28. Covered in finding of fact 39.

29. Covered in finding of fact 40.

30. Covered in finding of fact 42.

31. Covered in finding of fact 43.

32. Covered in finding of fact 51.

33. Covered in finding of fact 51.

34. Covered in finding of fact 51.

35. Covered in finding of fact 51.

36. Covered in finding of fact 51.

37. Covered in finding of fact 51.

38. Covered in finding of fact 51.

39. Covered in finding of fact 54.

40. Covered in findings of fact 45 and 51.

41. Covered in finding of fact 53.

42. Rejected as being unnecessary.

43. Rejected as being unnecessary.

44. Covered in finding of fact 52.

45. Covered in finding of fact 56.

46. Covered in finding of fact 45.

47. Covered in finding of fact 45.

48. Rejected as being unnecessary.

49. Covered in finding of fact 45.

50. Covered in finding of fact 45.

51. Covered in finding of fact 51.

52. Rejected as being unnecessary.

53. Covered in findings of fact 46 and 53.

54. Covered in finding of fact 45.

55. Covered in finding of fact 45.

56. Covered in finding of fact 44.

57. Covered in finding of fact 47.

58. Covered in finding of fact 48.

59. Covered in finding of fact 48.

60. Covered in finding of fact 48.

61. Covered in finding of fact 48.

62. Covered in finding of fact 49.

63. Covered in finding of fact 49.

64. Covered in finding of fact 50.

65. Covered in finding of fact 45.

66. Covered in finding of fact 57.

67. Covered in finding of fact 57.

68. Covered in finding of fact 58.

69. Covered in finding of fact 63.

70. Covered in finding of fact 63.

71. Covered in finding of fact 63.

72. Covered in finding of fact 63.

73. Covered in finding of fact 63.

74. Covered in finding of fact 66.

75. Covered in finding of fact 65.

76. Covered in finding of fact 64.

77. Covered in finding of fact 64.

78. Covered in finding of fact 64.

79. Covered in finding of fact 64.

80. Covered in finding of fact 64.

81. Covered in finding of fact 64.

82. Covered in finding of fact 64.

83. Covered in finding of fact 61.

84. Covered in finding of fact 62.

85. Covered in finding of fact 65.

86. Covered in finding of fact 65.

87. Rejected as being unnecessary.

88. Covered in finding of fact 10.

89. Rejected as being unnecessary.

90. Rejected as being unnecessary.

91. Rejected as being unnecessary.

92. Covered in finding of fact 60.

93. Covered in finding of fact 66.

94. Covered in finding of fact 66.

Respondent:

1. Rejected as being unnecessary.

2. Covered in finding of fact 22.

3. Covered in finding of fact 22.

4. Covered in finding of fact 22.

5. Covered in finding of fact 51.

6. Covered in finding of fact 51.

7. Covered in finding of fact 51.

8. Covered in finding of fact 51.

9. Covered in finding of fact 63.

10. Covered in finding of fact 72.

11. Covered in finding of fact 72.

12. Covered in finding of fact 67.

13. Covered in finding of fact 16.

14. Rejected as being unnecessary.

15. Covered in finding of fact 10.

16. Covered in finding of fact 22.

17. Covered in finding of fact 72.

18. Covered in finding of fact 72.

19. Covered in finding of fact 72.

20. Covered in finding of fact 72.

21. Covered in finding of fact 22.

22. Covered in finding of fact 22.

23. Covered in finding of fact 51.

24. Covered in finding of fact 51.

25. Covered in finding of fact 51.

26. Covered in finding of fact 63.

27. Covered in finding of fact 63.

28. Covered in finding of fact 63.

29. Covered in finding of fact 72.

30. Covered in finding of fact 72.

31. Covered in finding of fact 72.

32. Covered in findings of fact 14, 27, 32 and 45.

33. Covered in findings of fact 14, 27 and 32.

34. Covered in finding of fact 60.

35. Covered in finding of fact 4.

36. Covered in finding of fact 38.

37. Covered in finding of fact 38.

38. Covered in finding of fact 36.

39. Covered in finding of fact 66.

40. Covered in finding of fact 28.

41. Covered in finding of fact 28.

42. Covered in finding of fact 28.

43. Covered in finding of fact 39.

44. Covered in finding of fact 52.

45. Covered in finding of fact 57.

46. Covered in findings of fact 22, 33, 51 and 63.

47. Covered in finding of fact 72.

48. Covered in findings of fact 22, 33, 51, 63 and 71.

49. Covered in findings of fact 22, 33, 51, 63 and 71.

50. Covered in findings of fact 22, 33, 51, 63 and 71.

51. Covered in findings of fact 22, 33, 51, 63 and 71.

52. Covered in finding of fact 22.

53. Covered in finding of fact 69.

54. Covered in finding of fact 6.

55. Covered in findings of fact 15 and 59.

56. Covered in finding of fact 59.

57. Covered in finding of fact 59.

58. Rejected as being unnecessary.

59. Rejected as being unnecessary.

60. Covered in finding of fact 72.

61. Covered in finding of fact 72.

62. Covered in finding of fact 40.

63. Covered in finding of fact 40.

64. Covered in finding of fact 40.

65. Covered in finding of fact 40.

66. Rejected as being unnecessary.

67. Rejected as being unnecessary.

68. Rejected as being unnecessary.

69. Rejected as being unnecessary.

70. Rejected as being unnecessary.

71. Covered in finding of fact 44.

72. Covered in finding of fact 44.

73. Covered in finding of fact 47.

74. Covered in findings of fact 44 and 48.

75. Covered in finding of fact 48.

76. Covered in finding of fact 48.

77. Covered in finding of fact 54.

78. Covered in finding of fact 50.

79. Covered in finding of fact 55.

80. Covered in finding of fact 55.

81. Covered in finding of fact 58.

82. Covered in finding of fact 58.

83. Covered in finding of fact 61.

84. Covered in finding of fact 61.

85. Covered in finding of fact 61.

86. Covered in finding of fact 62.

87. Covered in finding of fact 62.

88. Covered in finding of fact 49.

89. Covered in finding of fact 66.

90. Rejected as being unnecessary.

91. Covered in finding of fact 69.

COPIES FURNISHED:

Abbey G. Hairston, Esquire Post Office Box 24690

West Palm Beach, Florida 33402-4690

Thomas W. Young, III, Esquire

208 W. Pensacola Street Tallahassee, Florida 32301

Thomas J. Mills, Superintendent Palm Beach County School Board 3323 Belvedere Road, Bldg. 502 West Palm Beach, Florida 33402

Docket for Case No: 86-000666

Orders for Case No: 86-000666