STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0599

)

NORRIS L. BARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 8, 1988, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Jaime Claudio Bovell

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Norris L. Barker

420 Northeast 18th Avenue, Unit #9 Homestead, Florida 33033

BACKGROUND AND PROCEDURAL MATTERS

This case began on January 20, 1988, when the Petitioner took action to suspend and initiate proceedings to dismiss Respondent from all employment with the Dade County schools. The basis for the dismissal was cited as incompetency and misconduct in office. On January 26, 1988, Respondent requested a hearing regarding the suspension and the intended dismissal. The case was forwarded to the Division of Administrative Hearings for formal proceedings on February 5, 1988.

At the hearing, Petitioner presented the testimony of the following witnesses: John Collins, a police officer employed by the City of Miami; Frederick Rodgers, principal at Miami Southridge Senior High School; and James Edward Monroe, director of the office of professional standards, Dade County Schools. Petitioner's exhibits numbered 1-4, and 7 were admitted into evidence.

Respondent presented the testimony of William Machado, assistant principal at Southridge Senior High School, and Jean Freedman, chairman of the mathematics department at Southridge. Respondent's exhibits numbered 1-10 were admitted into evidence. The parties submitted one joint exhibit, Joint exhibit 1, which was also admitted.

The parties waived the rule requiring their proposed recommended orders within ten days and the recommended order within thirty days of the filing of the transcript and agreed to submit their proposed recommended orders within 15 days of the filing of the transcript. The transcript was filed on September 30, 1988.

After the hearing, the Petitioner filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. Respondent submitted final arguments which have also been considered and addressed in the appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida.

   
   

2. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge).

   
   

3. During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project.

   
   

4. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district.

   
   

5. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class.

   
   

6. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due

   to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking.

   
   

7. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class.

   
   

8. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988.

   
   

9. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms.

   Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide.

   
   

10. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting.

    
    

11. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended.

    
    

12. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave.

    
    

13. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool.

    
    

14. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder.

15. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation.

    
    

16. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge.

    
    

17. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct.

    
    

18. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19.

    
    

19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

21. Section 231.36 (1)(a), Florida Statutes, provides:

    
    

    Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

22. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

23. Rule 6B-1.001, Florida Administrative Code, provides, in part:

    
    

    (3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

24. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part:

    
    

    1. Obligation to the public requires that the individual:

       1. Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.

          
          

25. In the instant case, Respondent's determination to conduct the "fund raiser" was in total disregard of the school board policy which required approval before the event could be sanctioned. That he did the stunt without using the name of the school is of little defense since the notoriety and public attention given to the incident clearly referenced the school. Further, press coverage must have been anticipated and would have necessarily even been encouraged if Respondent sincerely believed the stunt would raise $8 million for education. Therefore, it was reasonable to anticipate that the press would utilize the school name and the Respondent's occupation as a Dade County teacher. Respondent took no precaution to assure that his private actions would be disassociated from his public role as teacher employed by Petitioner.

    
    

26. While Respondent's conduct was not unethical, he clearly disregarded the interests of the school, his colleagues, and the students by attempting such an ill-advised and ill- planned scheme. How Respondent could have actually hoped to remain atop the tower from December 19 through January 4, if necessary, without proper clothing, food, water, or provision for other functions is a mystery. That Respondent could go ahead with the plan without support, resulted in a public concern for Respondent's well-being and concern that he was teaching in a public school setting.

    
    

27. Rule 6B-4.009, Florida Administrative Code, provides, in part:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the

       existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section

          231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

    
    

28. In this case, Respondent received only one evaluation. He was unable to correct the deficient areas of that evaluation because he was absent from school during the days immediately following the report. It is unclear whether or not Respondent chose to be absent or was absent due to an illness. The number of days absent exceeded the permitted number. Further, Respondent offered no medical excuse for the time away. Since the Christmas holidays followed the period of absenteeism and since Respondent's stunt to raise money occurred during the holiday period, it is uncertain whether or not Respondent would have corrected the deficient areas. The one prescription Respondent could have timely completed (lesson plans) he did not. Since Respondent did not return to the classroom, a second evaluation was not made.

    
    

29. The record in this cause does not establish Respondent lacked physical ability, educational background, or adequate command of his area of specialization. However, the record does support the conclusion that Respondent lacked emotional stability, by virtue of his actions on December 19, 1987, to discharge his duties as a classroom teacher. Respondent's actions in climbing the 150 tower and pledging to remain there until $8 million were raised or he would "meet God," while well-intentioned, could not, under the circumstances, be deemed reasonable. Had Respondent and the school not received widespread publicity, had Respondent shown some remorse over the incident (other than that it had not been well planned), and had Respondent's prior teaching record been satisfactory, the incident might have been considered isolated. Unfortunately, the public response to the event and Respondent's prior evaluation must be considered since his effectiveness as a teacher and his ability to communicate with his peers and students have diminished.

    
    

30. It should be noted that the instability referred to in paragraph 10, related to the tower stunt. The record does not establish, and no conclusion has been reached, that Respondent has a psychiatric illness which would preclude him from future employment. The conclusions reached herein are based upon the totality of Respondent's teaching performance prior to the tower incident which evidenced an unsatisfactory level of performance and the tower incident which brought notoriety and further diminished Respondent's effectiveness as a teacher. It should further be noted that Respondent taught pursuant to a one year contract; thus there is no presumption of employment beyond the 1987-88 school year.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office.

DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599

Rulings on Petitioner's proposed findings of fact:

1. Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year.

2. Paragraphs 2-6 are accepted.

3. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so.

   Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays.

4. Paragraph 8 is accepted.

5. Paragraph 9 is accepted.

6. Paragraphs 10, 11, 12, 13 and 14 are accepted.

Rulings on Respondent's proposed findings of fact:

Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record.

The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause.

With regard to the numbered paragraphs the following rulings are made:

Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher.

Paragraph 2 is rejected as unsupported by the record.

Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted.

Paragraph 5 is rejected as, contrary to the weight of the evidence.

Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable.

Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project.

Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence.

Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness.

Paragraph 11 is rejected as conclusion or argument.

Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented.

COPIES FURNISHED:

Norris L. Barker

420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030

Jaime Claudio Bovell

370 Minorca Avenue

Coral Gables, Florida 33134

Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

Honorable Betty Castor Commission of Education The Capitol

Tallahassee, Florida 32399

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools

School Board Administration Building Annex 1550 North Miami Avenue

Miami, Florida 33136

Docket for Case No: 88-000599

Orders for Case No: 88-000599