vs. ) CASE NO. 87-4581
JESSIE M. MITCHELL, )
Respondent. )
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 May 25-26, 1988, in Jacksonville, Florida.
For Petitioner: Dolores R. Gahan
The Petitioner, the School Board of Duval County (hereinafter referred to as the "Board"), notified the Respondent, Jessie M. Mitchell, by letter dated May 19, 1987, that the Board intended to discharge Ms. Mitchell as a teacher. Ms. Mitchell executed a Request for Administrative Hearing on May 20, 1988, requesting a formal administrative hearing to contest the proposed action of the Board.
At the formal hearing the Board presented the testimony of Robert E. Strauss, William G. Permenter, Gail King Brinson, John Williams, James Constande, Cheryl Schang, Marilyn Diane Russell, Carolyn Boston Love, Jayne Owens, Magnolia Macklin and Mary Alice McDaniel. The Board also offered thirty- seven exhibits which were accepted into evidence.
Ms. Mitchell testified on her own behalf. She also offered eleven exhibits which were accepted into evidence.
The parties stipulated that Ms. Mitchell's retirement benefits with the Board are vested, that she could retire as of the date of the hearing if she applied for retirement and that she will be entitled to maximum retirement benefits in four to five years.
At the conclusion of the Board's case, counsel for Ms. Mitchell moved to dismiss the proceeding. The motion was denied.
The parties have filed proposed recommended orders containing 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.
Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect.
Ms. Mitchell was licensed to teach in early childhood education.
At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board.
Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965.
During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida.
Robert Strauss was the principal at Livingston during the 1985-1986 school year.
Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years.
Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year.
During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions.
On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance.
John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year.
Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers.
In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell.
Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members.
Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell.
Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher.
Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher.
The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year.
The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance.
Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year.
Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory.
Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year.
Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year.
William Permenter was the principal at R. L. Brown.
In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year.
During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance.
In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory.
On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987.
In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter.
During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell.
Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell.
No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations.
Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations.
In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions.
Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed.
During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union.
Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre.
The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness.
Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors;
(b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away.
Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class;
(i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter.
Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions.
Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems.
Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day.
Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year.
Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years.
The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by
certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations.
Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes.
Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The Board is seeking to discharge Ms. Mitchell from her position as a tenured teacher. She has been charged with "professional incompetency" in violation of Section 4(e) of the Tenure Act.
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). The Board must, therefore, prove Ms. Mitchell's professional incompetence through the introduction into the record of clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
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. Ms. Mitchell has argued that the Board has failed to meet all of the procedural safeguards of Section 4(e) of the Tenure Act. First, it has been alleged that the Board failed to provide Ms. Mitchell with a "clear and detailed statement of the specific reasons on which the claim of incompetency is based" in violation of Section 4(e)(1) of the Tenure Act. Additionally, it has been alleged "that section 4(e)(3) was not followed in that Respondent was not given one year of in-service training."
The evidence presented by the Board proved that the procedural safeguards of Section 4(e) of the Tenure Act have been complied with. Throughout the two school years at issue in this case Ms. Mitchell's deficiencies were pointed out and explained to her on numerous occasions by numerous personnel of the Board. Viewing the evidence in the most favorable
light for Ms. Mitchell, the evidence proved that the evaluation process includes a subjective thought process as well as the application of objective standards. The process, however, was sufficient to clearly put Ms. Mitchell on notice as to her teaching deficiencies. The Board has complied with Section 4(e)(1) of the Tenure Act.
The Board has also complied with Section 4(e)(3) of the Tenure Act. Ms. Mitchell has misstated the requirement of this Section. It does not require that a teacher actually participate in in-service training for a full year. Section 4(e)(3) of the Tenure Act actually requires the following:
That prior to the institution of proceedings as hereinafter provided, a period of one year shall elapse during
which such teacher shall be afforded the opportunity of specific in-service training to correct the alleged deficiencies and the teacher shall cooperate in undergoing such specific
in-service training ...
Regardless of when the one year period is determined to begin, Ms. Mitchell was afforded "the opportunity" of specific in-service training for at least one year. In-service training was first provided to Ms. Mitchell in February, 1986, and continued to be available to Ms. Mitchell until May 19, 1987, when the Board informed Ms. Mitchell that she would be discharged as a teacher. During part of this time Ms. Mitchell refused the training that she was offered. The "opportunity" for training was available, however, throughout this period.
The second and third arguments raised by Ms. Mitchell in the Respondent's Proposed Recommended Order raise constitutional issues over which the Division of Administrative Hearings has no jurisdiction. See Cook v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982). These arguments will not, therefore, be addressed in this Recommended Order.
The final argument raised by Ms. Mitchell is that the Board has failed to meet its burden of establishing that Ms. Mitchell is professionally incompetent as a teacher. This argument is without merit. Ms. Mitchell was sufficiently informed as to the standards of conduct she was expected to demonstrate. The evidence proved that she did not satisfactorily perform the standards she was required to meet. Ms. Mitchell was evaluated four times during the two school years in question by two different principals. Although the two principals did not agree on the same deficiencies, they did agree that Ms. Mitchell's performance as a teacher was unsatisfactory. The evaluations of the two principals were based upon their observations on several occasions and were supported by the observations of several others who observed Ms. Mitchell.
Based upon the weight of the evidence, it is concluded that Ms. Mitchell was professionally incompetent during the 1985-1986 and 1986-1987 school years.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the
Duval County public school system.
DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581
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, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1.
2 3.
3 46.
5 39 and 41.
6 40-41.
7 6 and 9.
8 17.
9 Hereby accepted.
10-11 20.
12 11.
13 18.
14-15 21.
16-17 Irrelevant.
18 11.
19 17.
20 13.
21 12.
22 14.
23 13.
24 42.
27 16.
28 43.
29 42.
30 34.
31 15.
32 See 39.
33 19.
34 22.
35 23.
36 24-25.
38 Hereby accepted.
39 26.
40 28.
41-42 Irrelevant.
43 45.
44 27.
58-61 Hereby accepted.
62 44.
63 36.
66 32 and 37.
67 36.
68-69 Hereby accepted.
70 45.
71 Cumulative.
72 47.
73 48.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1-2.
2 3.
3 46.
4 5.
5 6.
6 10.
7-8 21.
11-13 7.
14 Not supported by the weight of the evidence.
15-16 Hereby accepted.
17 17.
18 24.
19 23.
22 27.
23 29.
24-29 Not supported by the weight of the evidence or irrelevant.
30 8.
31-43 Not supported by the weight of the evidence or irrelevant.
44 Hereby accepted.
45 4.
46 8.
47 Hereby accepted.
48 36.
49-52 Not supported by the weight of the evidence or irrelevant.
Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall
Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive
