Petitioner, ) CASE NO. 86-2274
vs. )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on April 1, 1987 in Miami, Florida. The following appearances were entered.
1450 N.E. Second Avenue, Suite 301
2929 S.W. Third Avenue, Suite One Miami, Florida 33129
By letter dated June 5, 1986, the Respondent was notified of Petitioner's intent to suspend and dismiss her from employment because of alleged incompetency, gross insubordination, willful neglect of duties and misconduct in office in violation of Chapter 231, Florida Statutes. The Respondent requested a formal administrative hearing.
At the formal hearing, the Petitioner presented the testimony of Anthony M. Pariso, Patrick Snay, Mary L. Henry, Wendy Marsh, Wally Lyshkov, and Carnell White. Additionally, Petitioner filed the post-hearing deposition of Dr.
Desmond Patrick Gray. Petitioner's Exhibits 1-21, 23-29 and 32-41 were duly offered and admitted into evidence. The Respondent testified in her own behalf but submitted no documentary evidence. The Petitioner submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact has been made in the appendix to this Recommended Order.
Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact:
The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education.
The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978.
Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986.
1980-81 SCHOOL YEAR
During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class.
For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences.
1981-82 SCHOOL YEAR
The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility.
The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction;
Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility.
The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility.
The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships.
Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing.
During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students.
During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints.
On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students.
In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status.
1982-83 SCHOOL YEAR
On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent
did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year.
During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program.
1983-84 SCHOOL YEAR
During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required.
A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints.
As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable.
On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner.
A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics.
For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a
sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom.
1984-85 SCHOOL YEAR
At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment.
1985-86 SCHOOL YEAR
On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected.
On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control.
After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription.
On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence.
Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences.
In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything
from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital.
Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes.
During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days.
At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility.
Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation.
It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
Any member of the instructional staff in any district school system may be dismissed at any time during the school year provided that the charges against him are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of a crime involving moral turpitude. See Section 231.36(4)(c), Florida Statutes. In the instant case, the charges placed against Respondent by the School Board of Dade County include incompetency, gross insubordination, misconduct in office and willful neglect of duties.
Incompetency is defined as an "inability or lack of fitness to discharge the required duty as a result of ineffi- ciency or incapacity." Rule 6B-4.09(1), Florida Administrative Code. Inefficiency is defined as a "repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes) and/or a "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 minimal educational experience." Rule 6B-4.09(1)(a), Florida Administrative Code. Section 231.09, Florida Statutes provides in part that teachers
shall perform duties prescribed by
rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faith- fully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract
Misconduct in office is defined as "a violation of the Code of Ethics of the Education Profession...and the Principles of Professional Conduct for the Education Profession in Florida...which is so serious as to impair the individual's effectiveness in the school system." Rule 6B-4.09(3), Florida Administrative Code.
Gross insubordination or willful neglect of duties is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Rule 6B-4.09(4), Florida Administrative Code.
The Petitioner established the factual allegations of the Notice of Charges as discussed in the Findings of Fact. Based on the factual findings, the Respondent is guilty of incompetency due to inefficiency as defined in Rule 6B-4.09, Florida Administrative Code. The Respondent's chronic absenteeism and tardiness, notwithstanding the fact that some were legitimate, had a severely negative impact on the continuity of education provided to the students in her language classes and led to a repeated failure on the part of Respondent to communicate with and relate to her students, depriving them of a minimum educational experience. Furthermore, even when Respondent was present her techniques of instruction, preparation and planning, assessment techniques and classroom management were frequently below minimum acceptable levels. Although thoroughly versed in her speciality, Respondent was unable to effectively transmit her knowledge to the students. The Respondent testified that her problems with attendance were all related to her medical condition, but there was no showing that the Respondent would or could curtail her excessive absenteeism rate or that her classroom performance would improve in the future. During the past 4 or 5 years, Respondent has recorded a see-saw performance, improving for brief periods only to return to an unacceptable level after a short while.
The Respondent is also guilty of willful neglect of duties and gross insubordination due to her consistent and persistent failure to properly notify the school concerning her intended absences and/or tardiness and her failure to keep on file emergency lesson plans for use by substitute teaching despite repeated orders to do so by her principal and assistant principal. See Rule 6B- 4.09(4), Florida Administrative Code.
The evidence was not sufficient to establish that the Respondent was guilty of misconduct in office as defined in Rule 6B-4.09(3), Florida Administrative Code. In particular, the Petitioner failed to allege and/or prove that the Respondent violated any specific provisions of the Code of Ethics of the Education Profession or the Principles of Professional Conduct for the Education Profession in Florida and therefore failed to prove that her effectiveness in the school system was impaired as a result thereof. The Respondent is not guilty of misconduct in office. See Rule 65-4.09(3), Florida Administrative Code.
RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida.
DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274
The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner.
1450 N.E. Second Avenue Miami, Florida 33132
William DuFresne, Esquire 2929 S.W. Third Avenue Suite One
Hon. Betty Castor Commissioner of Education The Capitol
Dr. Leonard Britton Superintendent of Dade County
1450 N.E. Second Avenue Miami, Florida 33132
