STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF' DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2798

)

IRIS KRISCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 18, 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: Frank R. Harder

Suite 100, Twin Oaks Building 2780 Galloway Road

Miami, Florida 33165

For Respondent: William DuFresne

DuFresne and Bradley

2929 South West 3rd Avenue, Suite One Miami, Florida 33129

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 27, 1988, when the School Board of Dade County, Florida (Board) acted to withhold a contract for employment from Respondent for the 1988-89 school year. Consequently, Respondent's employment terminated at the close of the 1987-88 contract year. On May 6, 1988, counsel for Respondent requested a hearing pursuant to Section 231.36(3)(e)4.(b), Florida Statutes.

This cause was filed with the Division of Administrative Hearings for formal proceedings on June 10, 1988. Thereafter, the parties agreed to waive the forty-five day hearing requirement set forth in the statute. The Board furnished its Notice of Charges to Respondent on September 19, 1988. These charges alleged the Respondent to be guilty of incompetency as that term is defined by Rule 6B-4.009, Florida Administrative Code.

At the hearing, the Board presented the testimony of the following witnesses: Jeanne Friedman, principal at Ojus Elementary School (Ojus); Mariann Sosnick, Ruby Phillip, and Ronnie Melnick, parents whose children were enrolled in Respondent's class; Emilio Fox, area director for the Board's north area schools (Ojus is among those schools); Marguerite Rodencich, reading supervisor for the Dade County public schools; Doretha Mingo, area director responsible for

personnel and labor relations; Michael Conte, coordinator for the Board's early childhood programs; Leeomia Kelly, assistant principal at Ojus; Carol Weller, media specialist at Ojus; and Patrick Gray, assistant superintendent in the office of professional standards. The Board's exhibits numbered 1 through 21 were admitted into evidence.

Respondent testified in her own behalf and presented the testimony of the following witnesses: Jeanne Friedman; Charlene Lovelass, trust specialist at Norland Middle School, former guidance counselor and primary specialist at Ojus; Bertha Neely, north area PREP coordinator; Joyce Kramer, kindergarten teacher at Ojus; and Sonya Grice, teacher at Ojus. Respondent's exhibits numbered 1 and 2 were admitted into evidence.

After the hearing, the transcript was filed on January 20, 1989. The Respondent filed a proposed recommended order on January 30, 1989. Respondent's amended proposed recommended order was filed on February 2, 1989. Petitioner's proposed recommended order was filed on January 31, 1989. Pursuant to a stipulation of the parties, pertinent provisions of a labor contract between the Board and its teachers were filed on February 7, 1989. Specific rulings on the parties' proposed findings of fact are included in the attached appendix.

INTRODUCTION

The central issue in this case is whether Respondent was entitled to a contract for employment for the 1988-89 school year.

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. The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board.

   
   

2. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district.

   
   

3. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance.

   
   

4. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract.

   
   

5. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation.

6. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987.

   
   

7. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning.

   
   

8. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning.

   
   

9. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders).

   
   

10. Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships.

    
    

11. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment.

    
    

12. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer.

    
    

13. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be

    moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23.

    
    

14. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management.

    
    

15. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment.

    
    

16. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships.

    
    

17. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract.

    
    

18. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction.

    
    

19. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required.

    
    

20. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent.

    
    

21. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action.

    
    

22. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years.

23. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. 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.

          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.

          
          

26. While authoritative decisions may be based upon the testimony of experts from a panel appointed by the Commissioner of Education, the rule does not mandate that only such experts may testify in cases involving an issue of incompetence. In this case, the Petitioner has presented expert testimony relating to the qualifications and performance record of this Respondent. The Board has established that the Respondent failed to meet the criteria by her inefficiency as that term is defined. Consequently, the Board has proved by clear and convincing evidence that the Respondent was not entitled to contract renewal for the 1988-89 school year. Further, the Board has established that it followed the procedural guidelines required by the Board/UTD contract and

Section 231.36, Florida Statutes. Having proved the procedural and substantive criteria for the action taken, the Board's decision to terminate Respondent's employment by nonrenewal of her contract must be sustained as there were sufficient grounds for such action.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract.

DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 3 are accepted.

2. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary.

3. Paragraphs 5 through 12 are accepted.

4. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary.

5. Paragraphs 14 through 19 are accepted.

6. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance.

7. Paragraph 21 is accepted.

8. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based

   upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument.

9. Paragraphs 23 through 25 are accepted.

10. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact.

11. Paragraphs 29 and 30 are accepted.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER):

1. Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time.

2. Paragraphs 2-4 are accepted.

3. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case.

4. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein.

5. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented.

6. Paragraph 9 is accepted.

7. Paragraph 10 is rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

Frank Harder

Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent

Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue

William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY

2929 South West Third Avenue, Suite One Miami, Florida 33129

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

Docket for Case No: 88-002798

Orders for Case No: 88-002798