STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3564

)

ARTHENIA LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 5, 1987, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Gary E. Eckstine, Esquire

Assistant Counsel City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

For Respondent: Philip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

PROCEDURAL STATEMENT

The Superintendent of Duval County Public Schools, Herb A. Sang, brought charges against the Respondent, Arthenia Lee, by letter dated May 16, 1986. It was alleged that the Respondent was guilty of professional incompetency under Section 4(e) of the Duval County Teacher Tenure Act. The Petitioner, the School Board of Duval County, sought the Respondent's discharge from employment as a teacher in the Duval County public school system.

The Respondent filed a request for formal hearing on June 25, 1986. The Respondent disputed the allegations contained in the charges of May 16, 1986 and disputed that such allegations, even if true, constituted evidence of professional incompetency in violation of Section 4(e) of the Duval County Teacher Tenure Act.

At the formal hearing, the Petitioner presented testimony of Frank Castellano, Gloriden Norris, James Jaxon, Jed R. Klein and Raymond Bailey. Mr. Jaxon was accepted as an expert in the observation and evaluation of secondary teachers. Petitioner's exhibits 1-30 were accepted into evidence.

The Respondent presented the testimony of Elizabeth Higdon and the Respondent. Respondent's exhibits 1-12 were accepted into evidence.

Subsequent to the conclusion of the formal hearing, the Petitioner filed a Motion to Supplement Record. The Respondent filed an Objection to Petitioner's Motion to Supplement Record. By Order dated March 5, 1987, the Motion to Supplement Record was denied, the Objection to the Petitioner's Motion to Supplement Record was sustained to the extent that it requested that the Motion to Supplement be denied, it was determined that there would be no adverse affect on the recommendation in this case as a result of the information filed with the Motion to Supplement and the Respondent's request for a new hearing and sanctions was denied.

The parties have timely filed proposed recommended orders. The Petitioner also filed Petitioner's Final Argument. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. In the Appendix it has been indicated where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.

ISSUE

Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education.

   
   

2. The Respondent's license to teach is current, in full force and effect and valid through 1998.

   
   

3. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976.

   
   

4. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner.

   
   

5. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year.

   
   

6. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon.

   
   

7. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon.

   
   

8. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner.

9. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8.

   
   

10. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on

    13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness.

    
    

11. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past.

    
    

12. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her.

    
    

13. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act").

    
    

14. Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her.

    
    

15. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon.

    
    

16. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year.

    
    

17. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice.

    
    

18. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance.

19. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance.

    
    

20. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act.

    
    

21. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris.

    
    

22. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner.

    
    

23. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent.

    
    

24. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone.

    
    

25. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986).

    
    

26. Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year.

    
    

27. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop.

    
    

28. The Respondent did not sufficiently implement recommendations for improvement made to her.

    
    

29. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent.

    
    

30. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan.

    
    

31. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance

    unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness.

    
    

32. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question:

    
    

    1. The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris);

    2. Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon);

    3. The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris);

    4. No roll was taken (according to Mr. Jaxon);

    5. On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials

       including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano,

       Dr. Klein, Mr. Paugh and Mr. Jaxon); and

    6. Some students did not have their textbooks with them (according to Mr. Jaxon).

       
       

33. The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question:

    
    

    1. The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to

       Dr. Klein);

    2. The Respondent failed to check to see if students understood directions (according to Ms. Norris);

    3. Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to

       Ms. Norris);

    4. The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent);

    5. The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein);

    6. Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and

    7. The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon).

       
       

34. The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required

    on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway.

    
    

35. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher."

    
    

36. During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris.

    
    

37. Based upon Dr. Klein's observation of the Respondent during the 1985-

    86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little.

    
    

38. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes.

    
    

39. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances.

    
    

40. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies.

    
    

41. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing.

    
    

42. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984-

    85 and 1985-86 school years.

    
    

43. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act.

44. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act.

    
    

45. No definition of "professional incompetency" is provided in the Tenure

    Act.

    
    

    CONCLUSIONS OF LAW

    
    

46. The Division of Administrative Hearings has jurisdiction of the

    parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).

    
    

47. The Petitioner is seeking to discharge the Respondent from her position as a tenured teacher. She is charged with "professional incompetency" in violation of Section 4(3) of the Tenure Act.

    
    

48. A disciplinary proceeding instituted for the purpose of dismissing a tenured teacher is penal in nature. See School Board of Pinellas County v. Noble, 384 So.2d 285 (Fla. 1st DCA 1980). Therefore, the charges must be proved by the Petitioner through the introduction into the record of clear and convincing evidence. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

    
    

49. Section 4(e) of the Tenure Act provides that a teacher may be discharged or demoted for "professional incompetency" if certain procedural safeguards are followed. The evidence established and the parties do not dispute that the procedural safeguards provided by Section 4(e) of the Tenure Act have been followed in this case.

    
    

50. As pointed out by counsel for the Petitioner, there are essentially two questions of law to be decided: (1) what is the definition of "professional incompetency"; and (2) does the weight of the evidence support a conclusion that the Respondent is guilty of professional incompetency?

    
    

51. The Tenure Act does not provide any definition of the terms "professional incompetency." Counsel for the Respondent has taken the position that the definition of "incompetency" as set forth in Rule 6B-4.09, Florida Administrative Code, should be applied. As recognized by counsel for the Respondent, the definition contained in Rule 6B-4.09, Florida Administrative Code, was not promulgated pursuant to the Tenure Act. Counsel for the Respondent argues, however, that the definition contained in Rule 6B-4.09 should be applied as a "useful analog" as certain other definitions in Rule 6B-4.09, Florida Administrative Code, were applied in Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981).

    
    

52. Counsel for the Petitioner has argued that the definition of "incompetency" contained in Rule 6B-4.09, Florida Administrative Code, is not applicable because (1) the definition contained in the Rule is specifically provided for purposes of defining terms used in Section 231.36, Florida Statutes; and (2) the Tenure Act (Chap. 21197, Laws of Florida, as amended) and not Chapter 231, Florida Statutes, governs teacher tenure for purposes of Duval County teachers.

53. In Smith v. School Board of Leon County, supra, Smith was charged with "misconduct in office" and "gross insubordination." Although these terms were not defined for purposes of non-instructional personnel, the court indicated that the definitions of the terms provided in Rule 6B-4, Florida Administrative Code, for instructional personnel should "serve as useful analogues to the issues before us." The court went on, however, to conclude that Smith's conduct "did not constitute 'gross insubordination' or 'misconduct in office' as those words are used in their normal meaning."

    
    

54. Unlike this case, the Smith decision involved a school board employee subject to the provisions of Chapter 231, Florida Statutes. Although not specifically addressing the issue involved in this case, the Smith court recognized that the definition of relevant terms under the Tenure Act are not analogous under Chapter 231:

    
    

    The appellant's acts could at most be described as contemptuous. The word "contemptuous" is not synonymous with the word "insubordination" as those words are commonly used. ... We are cognizant that our decision in Muldrow v. Board of Public Instruction of Duval County appears

    to equate the word "insubordination" with the word "contumacious"; however, the Muldrow court was addressing a charge of "insubordination" under the Duval County Teacher Tenure Act that superseded the provisions of Chapter 231.36(6), as to teachers within the Duval County School District.

    
    

55. As recognized in the Smith decision, the Tenure Act superseded the provisions of Chapter 231.36, Florida Statutes. Unlike the Smith case, the Respondent is not subject to the provisions of Chapter 231, Florida Statutes. Instead, the Respondent is subject to a more specific statute -- the Tenure Act

    -- which must take precedence over the more general statute, Chapter 231, Florida Statutes. State v. Young, 357 So.2d 416 (Fla. 2d DCA 1978). Therefore, it is concluded that the definition of "incompetency" contained in Rule 6B-4, Florida Administrative Code, does not apply in this case.

    
    

56. In determining whether the Respondent is guilty of professional incompetency under the Tenure Act, the evidence established that the Respondent was put on notice as to the standards she was required to meet by the evaluation forms used in evaluating her performance. The evidence also demonstrated that the Respondent did not satisfactorily perform the standards she was required to meet. The Respondent was evaluated four times by two different principals. The Respondent's evaluations were based upon the observations of the principals who evaluated her and others who observed the Respondent on several occasions. Efforts were made by the Petitioner to assist the Respondent in improving her performance. Although the Respondent did show some improvement, most of her deficiencies were uncorrected.

    
    

57. Based upon the weight of the evidence, it is concluded that the Respondent was professionally incompetent during the school years in question.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within

the Duval County public school system, effective immediately.

DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida.

LARRY J. SARTIN

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 10th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted.

Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ."

PETITIONER'S PROPOSED FINDINGS OF FACT:

Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection

1. RO 1 and 4.

2. RO 4.

3 RO 9-10, 31 and 42.

4 RO 45.

1. Conclusion of law.

2. RO 10 and 31.

7 RO 32.

8 RO 33.

9 RO 20.

10 RO 21-22.

1. RO 24 and 28.

2. Not supported by the weight of the evidence.

3. Not a proposed finding of fact.

14 RO 38.

15 RO 39.

16 RO 40.

17 RO 26 and 41.

18 RO 13, 15 and 17.

19 RO 43-44.

20 RO 44.

RESPONDENT'S PROPOSED FINDINGS OF FACT:

find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent.

28 RO 37.

1. Hereby accepted.

2. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence.

31-33 Irrelevant or not supported by the weight of the evidence.

34 RO 41.

35 RO 27.

COPIES FURNISHED:

Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive

Jacksonville, Florida 32207

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Gary E. Eckstine, Esquire Assistant Counsel

City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302

Docket for Case No: 86-003564

Orders for Case No: 86-003564