STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4101
)
PAM PERRY, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for final formal hearing in Vero Beach, Florida, on March 5, 1987 before Ella Jane P. Davis, duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: J. David Holder, Esquire
Post Office Box 1694 Tallahassee, Florida 32302
For Respondent: Charles L. Hendley, Esquire
1500 Delaware Avenue
Fort Pierce, Florida 33450 BACKGROUND AND PROCEDURE
By Administrative Complaint filed September 17, 1986 by then Commissioner of Education, Ralph D. Turlington, Respondent was alleged to be incompetent to teach or perform his duties as an employee of the public school system or to teach in or to operate a private school during the 1983-1984, 1984-1985 and the first three weeks of the 1985-1986 school years. It is alleged that the Respondent either failed to appropriately supervise his students or knowingly permitted his students to manufacture swords, paddles and clubs in shop class; that on May 21, 1985 the Respondent engaged in unprofessional conduct at Clemans Elementary School, including the use of profanity, resulting in a three-day suspension; that the Respondent either failed to appropriately supervise his students or knowingly permitted one of them to manufacture a plaque which read "I LOVE SEX"; and that Respondent refused to prepare and file the required year- end vocational education reports for the 1984-1985 school year, despite being instructed to do so by his superiors at school and by the director of personnel for the Indian River County School Board.
Petitioner's ore tenus motion to amend the style of this cause as reflected above was granted at the commencement of formal hearing. Petitioner presented the oral testimony of Marion Bass, Theresa Wagner, Richard Thomas, Jean Carter,
Howard LaPointe, Frank Humphrey, Dr. Douglas King and Stewart Carlton. The Petitioner offered 41 exhibits, two of which were composites, which were received in evidence.
The Respondent presented the testimony of Dr. Douglas King, John Witt, and Barbara King and testified in his own behalf. The Respondent offered six exhibits, four of which were admitted in evidence. Respondent's Exhibits 1 and
2 were marked for identification only.
After filing the transcript of the March 5 proceeding, the parties stipulated to late-filing of Respondent's post-hearing proposal, which was filed in due course. Both parties' post-hearing proposals have therefore been considered and are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix hereto.
FINDINGS OF FACT
The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts.
During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct.
The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics.
At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective.
THE 1983-1984 SCHOOL YEAR
Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint.
As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations.
Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the
students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions.
Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year.
On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade.
Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months.
THE 1984-1985 SCHOOL YEAR
On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students.
Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task.
Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and
suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies.
On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum.
On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year.
At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him.
As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner.
Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans.
Ms. Wagner later observed Respondent on several other occasions.
Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984.
On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent.
On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control.
At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him.
On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items.
On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval.
On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching.
In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District.
On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean
Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed.
In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance.
Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference.
Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students
were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter.
On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no
orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review.
Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it."
On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so.
On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass.
As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports
appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent.
Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year.
THE 1985-1986 SCHOOL YEAR
On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide.
On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down.
Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked.
Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience.
No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found.
No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found.
Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Section 231.20(1), Florida Statutes, provides that the Education Practices Commission shall have the authority to suspend or revoke the teaching certificate of any person if it can be shown that such person:
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(b) has proved to be incompetent to teach or to perform his duties as an employee of the public school system or to teach in or to operate a private school; or
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(f) has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; or
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(h) has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is revocation of the teaching certificate.
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The only Florida Administrative Code rules violations specifically charged in the administrative complaint are Rules 6B-1.06(3)(a) [failure to protect students] and (3)(e) [intentionally exposing students to unnecessary embarrassment and disparagement]. The former charge is based on the potential but unrealized danger of the paddle and "chair legs" and is substantiated. The latter charge is based upon the alleged use of profanity and disparaging remarks in the presence of students and has not been substantiated. Stretching a point, one might relate the "locking out" incidents to this, but that stretch is illogical and sufficient predicate was not laid to support such a leap of imagination.
Chapter 6B-5, Florida Administrative Code, (Standards of Competent Professional Performance), establishes the minimal standards of competency for the education profession in Florida. See Rule 6B-5.01, Florida Administrative Code.
Petitioner has established upon competent substantial evidence presented at the final hearing that for the period charged in the administrative complaint, Respondent failed to evidence minimal standards of competency because Respondent had a consistent pattern of failing to utilize nonverbal behavior to show interest and enthusiasm in the classroom, failing to foster interest and enthusiasm for learning and teaching, failing to provide the necessary instruction to students, failing to maintain the required paperwork documenting students' progress, failing to maintain an awareness of the level of instruction required for students he was teaching, failing to control students' behavior in the classroom, failing to orient students to the objectives being taught and to maintain an academic focus in the classroom, failing to give clear direction on student assignments, failing to utilize correct spelling and grammar in written and oral communications with students, failing to maintain a positive attitude and appropriate professional conduct in the classroom, inviting his students to leave his class via a change in the students' class schedule as an improper and inappropriate form of student discipline, failing to command the respect of his
students, failing to speak loudly and enunciating clearly enough to communicate effectively with the students in his classroom, failing to maintain the teaching skills necessary to teach the curriculum in his subject area, failing to prepare lesson plans, failing to prepare adequate lesson plans and implement them in the classroom, failing to provide adequate supervision of students in his classroom, failing to maintain an environment in the classroom conducive to learning, locking students out of his class during the school day and failing to obey the instructions of his principal to unlock his door and keep his students in the classroom, refusing to participate in conferences with his superiors to discuss his professional performance and conduct in the classroom, failing to appropriately supervise students in that he permitted one of them to manufacture a plaque which stated "I LOVE SEX" and one to manufacture a paddle which stated "DUCK BUT!" [sic], and failing to determine what projects were leaving his classroom as unfinished projects, exhibiting a generally uncooperative attitude towards improving his performance, and failure or refusal to adapt to new curriculum assignments within his area of expertise.
In each instance, the situation bespeaks more of a refusal by Respondent to conform as opposed to an inability to remediate. Given further opportunity, if Respondent's attitude changed, he could probably be remediated.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.04(5), Florida Administrative Code, in that the Respondent failed to make assignment of tasks and duties consistent with individual abilities and specialties.
The Respondent's conduct described herein fails to comply with Rule 6B-5.04(6), Florida Administrative Code, in that the Respondent failed to recognize the instructional needs of exceptional students.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.05(1), Florida Administrative Code, in that the Respondent failed to establish rapport with students by using appropriate verbal and visual motivational devices.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.05(3), Florida Administrative Code, in that the Respondent failed to practice instructional and social skills which assist students to interact constructively with their peers by encouraging expression of ideas, opinions and feelings.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.05(4), Florida Administrative Code, in that the Respondent failed to give directions to his students for carrying out instructional activity by assuring that the assigned task is understood and using feedback techniques relevant to the designated task.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.05(5), Florida Administrative Code, in that the Respondent failed to give directions to his students for carrying out instructional activity by assuring that the assigned task is understood and using feedback techniques relevant to the designated task.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.06(3), Florida Administrative Code, in that Respondent failed to orally communicate information coherently and logically.
Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.07(1), Florida Administrative Code, in that he failed to resolve discipline problems in compliance with policies of the school and rules of the district school board and the specific instructions of his superior, Principal Bass.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.07(2)(c), Florida Administrative Code, in that he failed to identify inappropriate student behavior and employ appropriate techniques for correction.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.07(4), Florida Administrative Code, in that he failed to use management techniques appropriate to the particular setting.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.08(1), Florida Administrative Code, in that he failed to demonstrate an awareness of current developments in his field of specialization.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.10(4), Florida Administrative Code, in that the Respondent failed to provide leadership and direction for others by appropriate example.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.10(6), Florida Administrative Code, in that Respondent failed to comply with reasonable requests and orders given by and with proper authority. As presented at this de novo proceeding, this omission of Respondent is something less than insubordination, with which, incidentally, he is not charged, but it still reflects upon his willingness to adapt to and cooperate in the overall effectiveness of the educational process and contributes to assessments of incompetency and loss of effectiveness against him.
The Respondent's conduct described herein fails to comply with the requirements of Rule 6B-5.11(2), Florida Administrative Code, in that the Respondent failed to communicate effectively to accomplish the designated task.
It is concluded that by virtue of his incompetent teaching performance, his failure or refusal to comply with school rules, directives, and orders, and his consistent refusal, as opposed to inability, to correct his teaching performance by means offered in good faith by his superiors, that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
I reject Respondent's premise that his rights have been abridged by the Petitioner's failure to offer the assistance reviewer's report in evidence. That report is inadmissible pursuant to Rule 6B-5.021(2), Florida Administrative Code.
I accept the Respondent's premise that he was given insufficient time to remediate. In assessing penalty, I have balanced performance, insufficient time for remediation, attitude, and minimal improvement.
Based upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute.
DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 22nd day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101
The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF).
Petitioner's Proposed FOF:
Covered in FOF 1.
Covered in FOF 3.
Covered in FOF 5. 4-5 Covered in FOF 6.
6-8 Covered in FOF 7 but amplified to conform to the record as a whole.
Covered in FOF 8.
Covered in FOF 9.
Accepted that there were such reports but rejected as set forth in FOF 41.
Covered in FOF 10.
Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary.
Covered in FOF 25.
Covered in FOF 26. 18-19. Covered in FOF 27.
20. Covered in FOF 29.
21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23.
24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness.
25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected.
27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative.
30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole.
Covered in FOF 16 but modified for clarity.
Covered in FOF 18.
Except for elimination of the cumulative, covered in FOF 17.
Except as cumulative, subordinate and unnecessary, covered in FOF 19.
Covered in FOF 19.
37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole.
39-42. Except as cumulative, subordinate or unnecessary, covered in FOF
22.
43-46, and 49 Rejected as not supported by the direct, credible competent
substantial evidence of record as a whole.
47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41.
50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33.
51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24.
Covered in FOF 28 and 42.
Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure.
56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37.
59. Covered in FOF 38.
60-61. Rejected as subordinate and unnecessary except as covered in FOF
38.
62. Covered in FOF 38.
63-65. Rejected as irrelevant except as covered in FOF 42.
Rejected as cumulative. See FOF 20, 21, 32 and 33.
Accepted but covered as set forth in FOF 23 since the proposal does
not constitute an ultimate, material fact.
Rejected as legal argument except to the extent it is peripherally covered in FOF 42.
Respondent's Proposed FOF:
1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner.
4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole.
5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner.
This proposal is not a sentence and is therefore rejected.
Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37.
Except as covered in FOF 4, rejected as irrelevant, although true.
Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21.
Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole.
COPIES FURNISHED:
J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302
Charles L. Hendley, Esquire 1500 Delaware Avenue
Fort Pierce, Florida 33450
Karen B. Wilde, Executive Director Education Practices Commission
125 Knott Building Tallahassee, Florida 32399
Marlene T. Greenfield Administrator
Professional Practices Services
319 West Madison Street, Room 3 Tallahassee, Florida 32399
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education,
Petitioner, EPC CASE NO. 86-086-RT DOAH CASE NO. 86-4101
vs.
PAM PERRY, JR.,
Respondent.
/
FINAL ORDER
Respondent, PAM PERRY, JR., holds Florida teaching certificate no. 195597. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on August 26, 1987, in Tampa, Florida, to take final agency action. The Petitioner was represented by
J. David Holder, Esquire. The Respondent was neither present nor represented. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order with the following exceptions. With regard to the Hearing Officer's conclusion that Petitioner should have charged insubordination, the panel specifically rejects that conclusion and concludes that insubordination is not a ground for discipline of a teaching certificate. With regard to the Hearing Officer's factual finding (in paragraph 42, page 42 of the Recommended Order) the panel specifically rejects that finding as being unsupported by competent, substantial evidence in the record. The panel specifically finds that the record shows <can't read on original> conference of February, 1985.
With regard to the Hearing Officer's conclusion of law (at paragraph 23 on page
23 of the Recommended Order), that Respondent was given insufficient time to remediate, the panel specifically rejects such conclusion and concludes that Respondent had sufficient time to remediate. With regard to penalty, the panel specifically rejects the recommended penalty of three years suspension and increases the penalty to THREE YEARS REVOCATION. As reasons for the enhanced penalty, the panel cites the findings of fact set forth by the Hearing Officer in paragraphs 7 through 21 of the conclusions of law found at pages 20-23 of the Recommended Order. This Order takes effect upon filing.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED, this 26th day of August, 1987.
JOANNE HOUSE, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of
BC vs. Pam Perry, Jr. was mailed to Charles L. Hendley, Esq., 1500 Delaware Ave, Ft. Pierce, Florida, 335450 this 3rd day of September, 1987, by U.S. Mail.
KAREN B. WILDE, Clerk
COPIES FURNISHED TO:
Professional Practices Services
Susan Tully Proctor, Esquire Attorney General's Office
Sydney McKenzie, III General Counsel
Florida Admin. Law Reports
Dr. James A. Burns, Superintendent Indian River County Schools
Ella Jane P. Davis Hearing Officer
Division of Administrative Hearings
J. David Holder, Esquire
| Issue Date | Proceedings |
|---|---|
| Jun. 22, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 26, 1987 | Agency Final Order | |
| Jun. 22, 1987 | Recommended Order | Shop teacher ran afoul of numerous rules and was incompetent and embarrassing to students more from refusal to conform to rules than inability to conform |
BROWARD COUNTY SCHOOL BOARD vs. ROBERT G. WIELAND, 86-004101 (1986)
RUSSELL FREEMAN vs. BROWARD COUNTY SCHOOL BOARD, 86-004101 (1986)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ELISABETH KIRTLEY, 86-004101 (1986)
SCHOOL BOARD OF DADE COUNTY vs. MICHAEL DOUGLAS, 86-004101 (1986)
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION vs TERESA HENSON, 86-004101 (1986)
