STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF HERNANDO ) COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2520
)
LINDA ALEXSUK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for hearing in Brooksville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane K. Kiesling, on September 14 and 15, 1989.
APPEARANCES
The parties were represented as follows:
For Petitioner: John J. Jaszczak
Attorney at Law
Hogg, Allen, Norton & Blue, P.A. Hyde Park Plaza-Suite 350
324 South Hyde Park Avenue Tampa, Florida 33606
For Respondent: David Brooks Kundin
Attorney at Law
Meyer, Brooks and Cooper 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
The issue at the hearing was whether the Respondent, Linda Alexsuk, should be returned to annual contract by the Petitioner, School Board of Hernando County.
PRELIMINARY STATEMENT
The School Board presented the testimony of Martin A. Yungmann, Ruth Reader, Betty Durden, Sandra Sims Best, Karen Rice, Mary Yvonne Brewer, and Dr. Donovan Peterson. The School Board's Exhibits 2-25 were admitted in evidence.
The Respondent, Linda Alexsuk, presented her own testimony and the testimony of William Fellows, Carolyn Van Wagoner, Jewell Gaye Underwood Blaha, Andrea Pirkle, Carl Harner, and Dr. Linda Cronin Jones.
The transcript of the proceeding was filed on October 18, 1989. The School Board filed its proposed findings of fact and conclusions of law on October 27, 1989. The Respondent filed her proposed findings of fact and conclusions of law on October 30, 1989. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix attached to and made a part of this Recommended Order.
FINDINGS OF FACT
The Respondent, Linda Alexsuk, has been employed as a teacher by the Petitioner since the 1974-75 school year and has taught kindergarten in the Hernando County school district from the school year 1976-77 through the school year 1988-89.
Linda Alexsuk was employed as a teacher by the Petitioner at the Moton School during the school year 1974-75 until the end of the school year 1988-89.
Yvonne Brewer has been the principal at Moton School for 11 years during all of which Linda Alexsuk was a kindergarten teacher at Moton School.
Linda Alexsuk received her first annual contract to teach at the Moton School from the Hernando County school district for the 1974-75 school year, and after four consecutive years of annual contracts, received a continuing contract of employment for the 1978-79 school year.
Linda Alexsuk received annual evaluations that were conducted by the principal of the Moton School, Yvonne Brewer, beginning in 1980, and continuing up through the 1988-89 school year.
In the annual evaluation for the 1980-81 school year, Yvonne Brewer evaluated Linda Alexsuk as Average or better in every area except Behavioral Management, where she was evaluated Below Average.
Early in the school year 1981-82 the Hernando County School Board employed an independent consultant, Dr. Clint Van Nagel, to observe Linda Alexsuk's classroom, which observation took place during one of her teaching sessions. Following the observation Dr. Van Nagel provided to Linda Alexsuk by letter ten to twelve suggestions of methods which could be used by her to improve her behavior management.
In the annual evaluation for the 1981-82 school year, using a different form than in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except four (Planning, Techniques, Student and Classroom Management, and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1982-83 school year, using a similar form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except three (Techniques, Student and Classroom Management, and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1983-84 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda
Alexsuk as Satisfactory in every area except two (Student and Classroom Management and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1984-85 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
In the annual evaluation for the 1985-86 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
In the annual evaluation for the 1986-87 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
The first disciplinary action ever instituted against Linda Alexsuk was a written reprimand attached to the annual evaluation for the 1987-88 school year, dated March 25, 1988.
Yvonne Brewer sought legal advice on how to return Linda Alexsuk to annual contract status before she issued the written reprimand in March of 1988. Yvonne Brewer believed that return to annual contract was a prerequisite to transferring the Respondent to another school in the district.
With that goal in mind, Yvonne Brewer conducted the annual observation and evaluation of Linda Alexsuk for the school year 1987-88 on March 25, 1988. The Respondent was informed that improvement was required in the areas of Techniques, Student and Classroom Management, and Student Response.
In addition, the written reprimand from Yvonne Brewer to Linda Alexsuk was attached to the 1987-88 annual observation form, setting forth a chronological list of alleged written warnings which had previously been given to The Respondent concerning discipline. The reprimand set forth a period of time in which Yvonne Brewer expected to see improvement in Respondent's teaching performance. The time period by which marked improvement was required was until the last week of May 1988. The reprimand also stated that Linda Alexsuk would be closely observed and supervised during the 1988-89 school year and further disciplinary action (possible termination) would be considered at that time.
At the time of the written reprimand, Yvonne Brewer scheduled a team observation of Linda Alexsuk. The team was to consist of Yvonne Brewer, Betty Durden and the Moton School primary specialist, during which observation Yvonne Brewer wished to see improvement in her performance. Subsequent to that date, the primary specialist, Karen Rice, was removed from the team, at her request, and Martin Yungmann was added to the team.
A team consisting of Yvonne Brewer, Martin Yungmann and Betty Durden was then scheduled to observe Linda Alexsuk's class on May 4, 1988.
At the time of the May 4, 1988, observation, Martin Yungmann was the district director of curriculum for the Hernando County school system. He holds a master's degree in education with 27 years of experience in the education
profession. In addition, Martin Yungmann was certified to observe teachers' performance using the Florida Performance Measurement System (hereinafter referred to as F.P.M.S.).
At the time of the May 4, 1988, observation, Betty Durden was the supervisor of elementary curriculum for the Hernando County school district, which position she had held for six years. Betty Durden holds a master's degree in curriculum and instruction and has 29 years of experience in the education profession. Betty Durden has also been certified as an observer using the F.P.M.S.
Yvonne Brewer is certified to observe teachers using the F.P.M.S. and, in fact, because of her position as principal acts as an observer approximately 30-35 times per year.
The F.P.M.S. is an objective system which is used by all school districts in the state of Florida, except the Dade County school district, for the purpose of conducting observations in the master teacher program. In addition, the system is used to observe teachers in the beginning teacher program in 50 school districts in the state of Florida. In total, the F.P.M.S. is used to observe approximately eight thousand teachers per year in Florida. The F.P.M.S. is not ordinarily used to evaluate an experienced teacher and it is not designed as a disciplinary evaluation.
On May 4, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann conducted an observation of Linda Alexsuk's class using the F.P.M.S. form.
Following the observation, a conference was held between Linda Alexsuk, Martin Yungmann, Betty Durden and Yvonne Brewer to discuss the team's observation.
On May 11, 1989, and May 25, 1989, Yvonne Brewer conducted additional observations of Linda Alexsuk's class using the F.P.M.S. form. Following those observations, Yvonne Brewer met with Respondent to discuss her observations. During those observations Yvonne Brewer observed the same recurring problems which had been identified in the May 4, 1988, observation.
Following these observations some suggestions for improvement of her deficiencies were offered to Linda Alexsuk. Respondent followed up on some of those suggestions. She also consulted with other teachers and reviewed books and materials on her own.
On June 2, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann again observed Linda Alexsuk's class using the F.P.M.S. form. During that observation all three team members observed recurring problems which had been identified during the May 4, 1988, observation and saw only one attempt, that being the giving of more directions, to implement the suggestions that the team had made following the May 4, 1988, observation.
Following the observation on June 2, 1988, a conference was held between Linda Alexsuk, Yvonne Brewer and Martin Yungmann, during which the team members discussed with Respondent the problems that they had observed.
One of the suggestions made by the observation team following the June 2, 1988, observation was for Linda Alexsuk to seek assistance at the Teacher Education Center (hereinafter referred to as TEC). In response Linda Alexsuk checked the list of course titles that were available for the summer at TEC, but
took no classes because she was unable to get some of the classes she thought might be useful based upon the course titles. Instead, Ms. Alexsuk went back over some books that she had at home.
As part of the kindergarten curriculum, the kindergarten classes were to be taught a series of 20 words called the GINN words, which words are used in the first primer book at the first grade level. The kindergarten students were required to master a minimum of 80% of these words.
During the May 4, 1988, observation, Yvonne Brewer moved around the room and quickly and informally tested ten children. None of the ten children could give her the words in the manner requested.
After the observation Yvonne Brewer decided to have Linda Alexsuk's class tested in the GINN words by the Moton School primary specialist.
Karen Rice is the primary specialist at Moton School. As primary specialist Karen Rice is responsible for the implementation of Florida's prep law in the school and for monitoring the education that is being received by the students to guarantee that each student is receiving the education he/she personally needs. The primary specialist is also responsible for testing children who are referred by teachers who believe the students may need special attention either because they are exceptional or have learning problems.
On May 9, 1988, Karen Rice, at Yvonne Brewer's request, conducted a special achievement level test of the GINN words for children in Linda Alexsuk's class.
At the time the test was given by Karen Rice, the majority of the students should have been at the 80% or better level.
The results of the test Karen Rice conducted showed that of the 26 children in Linda Alexsuk's class, 22 did not know 80% of the words, 19 did not know 50% of the words, and 15 students knew 25% or less of the words.
On November 17, 1988, Martin Yungmann observed Linda Alexsuk's class using the F.P.M.S. form, during which observation Yungmann once again saw no new instruction. In addition, he reviewed Respondent's lesson plan book, and the lesson plan did not indicate the activities that were actually taught or the instruction, goals or objectives that Ms. Alexsuk was attempting to get across to the students.
Following the observation, Martin Yungmann discussed with Linda Alexsuk his observations and told Respondent that he had still not observed actual new skill instruction after three observations and that he had observed recurring problems from previous observations.
During the conference Martin Yungmann indicated to Linda Alexsuk that he wanted to observe her class again primarily to observe the teaching of a new skill.
On November 18, 1988, Linda Alexsuk, by note, notified Yvonne Brewer, who in turn notified Martin Yungmann, that Respondent would like to set Wednesday, November 30, 1988, as the date for Martin Yungmann to return to observe her class.
When Martin Yungmann arrived on November 30, 1988, for the scheduled observation, Respondent's class was not in session in the room, so the observation had to be rescheduled.
On December 5, 1988, Yvonne Brewer conducted her required annual observation of Linda Alexsuk's class, rating Respondent's overall performance as unacceptable. During the observation, Yvonne Brewer observed recurring problems from previous observations.
Following the December 5, 1988, observation, Yvonne Brewer met with Linda Alexsuk and discussed her observation of Respondent's performance.
On March 2, 1989, Betty Durden observed Linda Alexsuk's class, using the F.P.M.S. observation form. During the observation, Betty Durden observed recurring problems discussed with Respondent previously and, in fact, Betty Durden noted that the category of management of student conduct was worse that day than during previous observations.
Following the observation, Betty Durden met with Linda Alexsuk to discuss the observation.
On March 7, 1989, Martin Yungmann observed Linda Alexsuk's class. Prior to this observation, Yungmann had specifically instructed Respondent that he wanted to observe actual new skill instruction. Although Respondent presented new skill instruction, she had to practically read the instructions for the lesson to the students from note cards. Ms. Alexsuk did this in an attempt to satisfy Yungmann's purpose for the observation.
During the March 7, 1988, observation, Martin Yungmann observed recurring problem areas which had been discussed with Respondent.
Following the observation, Martin Yungmann discussed with Linda Alexsuk his observation and the recurring problems that he had observed.
On March 9, 1989, Yvonne Brewer was scheduled to observe Linda Alexsuk's class. However, after approximately twenty minutes, Respondent approached Ms. Brewer and stated that she was not feeling well and requested permission to leave early to go to the doctors. During the shortened observation period, Ms. Brewer completed the Hernando County Classroom Observation form, the objective portion of which was taken from the F.P.M.S. form. This evaluation evidenced a recurring problem with student misconduct and student management.
The comprehensive test of basic skills (hereinafter referred to as C.T.B.S.) is a standardized test which is given to all students in grades K through 9 in the seventh month of the school year. In addition, C.T.B.S. is an indicator that can be used to evaluate a teacher's performance in a class where children are randomly assigned, as they are in Hernando County.
The C.T.B.S. is made up of two areas: math and reading.
Ideally, since the test is given in the seventh month of the school year, kindergarten students should score at the K.7 level on the test.
Following the 1988-89 school year, and in preparation for the formal hearing in this case, Betty Durden combined the figures for class performance on
the C.T.B.S. for all 38 kindergarten teachers in Hernando County. She did this at Yvonne Brewer's request.
The range of median class scores on the math portion of the C.T.B.S. for all 38 teachers was K.6 to 2.0. Linda Alexsuk's class median was K.6. There were three teachers at that lowest level of K.6. One teacher was not reappointed; one teacher had a class comprised of students repeating kindergarten. The third was Respondent's class.
The range of median class scores on the total reading portion of the
C.T.B.S. for all 38 teachers was K.S to 2.1. Linda Alexsuk's class median was 1.0.
The total reading portion of the C.T.B.S. is made up of four subparts: visual recognition, source recognition, oral comprehension and vocabulary.
In certain subparts of the total reading test, such as consonant recognition, Linda Alexsuk's class scored very low. Of eight consonants tested, Respondent's class had the lowest recognition scores in the district on three of the consonants.
Although all classes in Hernando County are assigned to teachers in the same fashion (boy/girl/black/white), Linda Alexsuk was not as effective as most other teachers in maintaining classroom control.
One of the major problems which observers of Linda Alexsuk's class noted was a recurring problem of student management/class control. Although Respondent received suggestions on methods of gaining control, including those from a special consultant hired to assist in her class, Ms. Alexsuk had difficulty keeping her students on task on a regular basis.
Control is one of the major domains of an effective teacher. If a teacher lacks control, as was evidenced in Linda Alexsuk's class, there will be an effect on the learning environment in that room which will influence the ability of the average student to learn in that room.
Linda Alexsuk sought the assistance of other peer teachers in preparing for her observations over the last two school years, and she practiced the lessons. In fact, she had one video taped. However, she received inadequate assistance from Yvonne Brewer and other administrators to effectively improve on her areas of weakness.
Linda Alexsuk suffered from nervousness which also affected her performance during observations. This was particularly a problem after the written reprimand because Respondent believed that "she was under the gun" and that her job was in jeopardy.
The F.P.M.S. forms from all of the observations were sent to the University of South Florida to be computer analyzed and compared to establish norms for the state of Florida. This was done after the recommendation to return Respondent to annual contract was made and was done solely in preparation for this hearing. The results of these analyses are not accepted or credited because they were not contemplated within the "good and sufficient reasons" alleged for the return of Ms. Alexsuk to annual contract.
The analysis of the C.T.B.S. data performed by Betty Durden is likewise not credited as evidence of the alleged "good and sufficient reasons"
because it was performed after the recommendation and solely for use as after- the-fact proof of the allegations.
Linda Alexsuk received a bachelor's degree in elementary education from the University of South Florida in 1972 and a master's degree in educational administration in 1981.
Ms. Alexsuk holds a teaching certificate from the Florida Department of Education authorizing her to teach students from the early childhood level through fifth grade.
A teacher relies on the annual evaluation to gauge how she is performing and whether she is meeting the expectations of her superiors.
Linda Alexsuk relied upon the satisfactory evaluations she received for three consecutive years to conclude that she was meeting the expectations of her principal, and she first became aware that Yvonne Brewer was unhappy with her classroom performance in March of 1988.
Yvonne Brewer utilized the F.P.M.S. as an instrument of discipline to document the case for returning the Linda Alexsuk to annual contract commencing in March of 1988. Yvonne Brewer likewise approached the observations of Respondent and the other actions taken with the intention of justifying returning Ms. Alexsuk to annual contract.
Inadequate offers of assistance were made to Linda Alexsuk to assist her in remediating her weak areas.
The School Board did not establish good and sufficient reasons for returning Linda Alexsuk to annual contract.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 231.36(4)(b), Florida Statutes, provides:
(b) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be dismissed or may be returned to annual contract status for another 3 years in the discretion of the school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the superintendent, by the principal if his contract is not under consideration, or by a majority of the school board. The employee whose contract is under consideration shall be duly notified in writing by the party or parties preferring the charges at least 5 days prior to the
filing of the written recommendation with the school board, and such notice shall include a copy of the charges and the recommendation to the school board. The school board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by a majority vote of the full membership of the school board. Any such decision adverse to the employee may be appealed by the employee pursuant to s.
120.68. (emphasis added)
In this case the Petitioner, School Board, has charged that "there are good and sufficient reasons" to return Respondent, Linda Alexsuk, to annual contract status from her continuing contract status.
Petitioner failed to put on any evidence which proved that the procedural requirements of Section 231.36(4)(b) were met. Respondent asserts that Petitioner has failed to carry its burden of proof by this dearth of evidence on the procedural aspects and relies on Burns v. School Board of Palm Beach County, 283 So.2d 873 (Fla. 4th DCA 1973). This argument is rejected. Burns differs from this case in one major regard. There the procedural requirements were not met. Here, the requisite letter and notices simply were not placed in evidence at the hearing. At no time has Respondent alleged or argued that the procedural requirements were not met. By failing to assert, either by an answer, affirmative defense or other appropriate pleading, that the procedural requirements were not met, Respondent has distinguished this case from Burns and has waived the issue.
Respondent filed a Motion to Strike Non-Record Evidence Contained in Petitioner's Findings of Fact and Conclusions of Law. The Motion to Strike is GRANTED; however, this ruling has no bearing on the outcome of this case.
There has also been considerable argument over the appropriate standards to be applied and whether the standard is "good and sufficient reasons" (Section 231.36(4)(b)) or the seven enumerated grounds found in Section 231.36(4)(c).
Having reviewed MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3rd DCA 1987), and other cases cited by the parties, it is concluded that the correct standards is that of "good and sufficient reasons" and that term includes the seven enumerated grounds and any other reasons which rise to the level of being good and sufficient.
It is also concluded and the parties have agreed that the burden of proof is on the School Board to prove its case by clear and convincing evidence.
In applying these standards to the evidence in this case, it is concluded that the School Board has failed to prove by clear and convincing evidence that there are "good and sufficient reasons" for both the recommendation and the proposed action by the School Board of returning Linda Alexsuk to annual contract.
Put quite simply, Yvonne Brewer made a determination to return Linda Alexsuk to annual contract before March, 1988, and actively proceeded to build her case. When she thought she had enough, she made the required recommendation. Any evidence submitted which was created after the recommendation was made in order to establish reasons for the recommendation is rejected.
Linda Alexsuk may have areas of weakness as a teacher, but such weaknesses do not rise to the level of good and sufficient reasons to return her to annual contract.
Based on the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the School Board of Hernando County enter a Final Order
denying the recommendation to return Linda Alexsuk to annual contract.
DONE and ENTERED this 20th day of November, 1989, at Tallahassee, Florida.
DIANE K. KIESLING
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 November , 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2520
The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of Hernando County
1 Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed findings of fact: 1-3 (1-3); 7 (7); 14-19 (17-22) 22 (23); 32-34 (24-26); 36 (28); 37 (29); 39-59 (30-50); 62- 69 (51-58); and 72-74 (59-61).
2. Proposed findings of fact 4-6, 8-13, 20, 21, 35, 38, 60, 61, and 81-85 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 23-31, 71, and 75-80 are unnecessary or irrelevant.
Proposed findings of fact 70 and 86-88 are unsupported by the competent substantial evidence.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Linda Alexsuk
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 (66); 2 (67); 3-5 (4-6); 6-12 (8-14); 13 (68); 14 (69); 15-16 (15); and 17 (70).
Proposed findings of fact 22, 24, and 27 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 18-21, 23, 25, and 26 are irrelevant or unnecessary.
COPIES FURNISHED:
John Jaszczak Attorney at Law
Hogg, Allen, Norton & Blue, P.A. Hyde Park Plaza-Suite 350
324 South Hyde Park Avenue Tampa, Florida 33606
David Brooks Kundin Attorney at Law
Meyer, Brooks and Cooper 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302
Dr. Dan McIntyre, Superintendent Hernando County School Board
919 U.S. Highway 41 North
Brooksville, Florida 34601
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF HERNANDO COUNTY,
Petitioner,
vs. CASE NO.: 89-2520
LINDA ALEXSUK,
Respondent.
/
FINAL ORDER
The Respondent, Linda Alexsuk holds a Florida teaching certificate a continuing contract with the Hernando County School Board. The Superintendent of Schools for the Hernando County School Board recommended to the School Board That the Respondent be returned to annual contract status in March, 1989.
The Respondent requested a formal hearing and one was held before a Hearing officer from the Division of Administrative Hearings. A Recommended Order was forwarded to the School Board pursuant to Section 120.57(1), F.S.
The School Board has reviewed the entire record in this case.
The School Board sets forth below its Final Order in this matter setting forth those portions of the Hearing Officers Recommended Order which are adopted and those portions which are rejected and the exceptions to the Hearing Officer's Findings of Fact and Conclusions of Law as submitted by Petitioner which are accepted.
STATEMENT OF THE ISSUE
The issue at the hearing was whether the Respondent, Linda Alexsuk, should be returned to annual contract by the Petitioner, School Board of Hernando County.
PRELIMINARY STATEMENT
The School Board presented the testimony of Martin A. Yungmann, Ruth Reader, Betty Durden, Sandra Sims Best, Karen Rice, Mary Yvonne Brewer, and Dr. Donovan Peterson. The School Board's Exhibits 2-25 were admitted in evidence.
The Respondent, Linda Alexsuk, presented her own testimony and the testimony of William Fellows, Carolyn Van Wagoner, Jewell Gaye Underwood Blaha, Andrea Pirkle, Carl Harner, and Dr. Linda Cronin Jones.
The transcript of the proceeding was filed on October 18, 1989. The School Board filed its proposed findings of fact and conclusions of law on October 27, 1989. The Respondent filed her proposed findings of fact and conclusions of law on October 30, 1989. The parties' proposed findings of fact were considered and utilized by the Hearing Officer in preparation of the Hearing Officer's Recommended Order. A copy of which is attached hereto and marked Exhibit "A."
The School Board relying upon the entire record adopts or rejects the Hearing Officer's Recommended Findings of Fact and Conclusions of Law as set forth below. It is the conclusion of the School Board based upon the entire record that those Findings of Fact and Conclusions of Law made by the Hearing Officer which are rejected are not supported by competent substantial evidence. In addition, it is the conclusion of the School Board that the Findings of Fact and Conclusions of Law which the School Board has substituted in to this Final Order which were filed by the Superintendent, a copy of which is attached hereto and marked as Exhibit "B" are supported by the competent substantial evidence.
FINDINGS OF FACT
The Respondent, Linda Alexsuk, has been employed as a teacher by the Petitioner since the 1974-1975 school year and has taught kindergarten in the Hernando County School District form the school year 1976-77 through the school year 1988-89.
Linda Alexsuk was employed as a teacher by the Petitioner at the Moton School during the school year 1974-75 until the end of the school year 1988-89.
Yvonne Brewer has been the principal at Moton School for 11 years during all of which Linda Alexsuk was a kindergarten teacher at Moton School.
Linda Alexsuk received her first annual contract to teach at the Moton School From the Hernando County School District for the 1974-75 school year, and after four consecutive years of annual contracts, received a continuing contract of employment for the 1978-79 school year.
Linda Alexsuk received annual evaluations that were conducted by the principal of the Moton School, Yvonne Brewer, beginning in 1980, and continuing up through the 1988-89 school year.
In the annual evaluation for the 1980-81 school year, Yvonne Brewer evaluated Linda Alexsuk as Average or better in every area except behavior management, where she was evaluated Below Average.
Early in the school year 1981-82 the Hernando County School Board employed an independent consultant, Dr. Clint Van Nagel, to observe Linda Alexsuk's classroom, which observation took place during one of her teaching sessions. Following the observation Dr. Van Nagel provided to Linda Alexsuk by letter ten to twelve suggestions of methods which could be used by her to improve her behavior management.
In the annual evaluation for the 1981-82 school years, using a different form than in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every areas except four (Planning, Techniques, Student and Classroom Management, and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1982-83 school year, using a similar form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except two (Student and Classroom Management and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1983-84 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area except two (Student and Classroom Management and Student Response) in which Improvement Required was indicated.
In the annual evaluation for the 1984-85 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
In the annual evaluation for the 1985-86 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
In the annual evaluation for the 1986-87 school year, using an identical form to that used in the previous year, Yvonne Brewer evaluated Linda Alexsuk as Satisfactory in every area, including Student and Classroom Management and Student Response.
Linda Alexsuk received reprimands concerning her performance on February 10, 1978, January 23, 1980, January 12, 1981, August 27, 1981, February 8, 1982, January 10, 1983, January 11, 1984, January 22, 1987 and September 11, 1987. In her March 25, 1988 annual evaluation, she was again reminded of those evaluations.
Yvonne Brewer sought legal advice on how to return Linda Alexsuk to annual contract status before she issued the written reprimand in March of 1988.
There is no evidence in the record that the 1987-88 annual observation and evaluation of Alexsuk by Brewer was conducted in any fashion different from other evaluations conducted by Brewer and that it was other than fair and objective. The Respondent was informed that improvement was required in the areas of techniques, student and classroom management, and student response.
The Respondent was informed that improvement was required in the areas of Techniques, Student and Classroom Management, and Student Response.
In addition, the written reprimand from Yvonne Brewer to Linda Alexsuk was attached to the 1987-88 annual observation form, setting forth a chronological list of written warnings which had previously been given to The Respondent concerning discipline. The reprimand set forth a period of time in which Yvonne Brewer expected to see improvement in Respondent's teaching performance. The time period by which marked improvement was required was until the last week of May 1988. The reprimand also stated that Linda Alexsuk would be closely observed and supervised during the 1988-89 school year and further disciplinary action (possible termination) would be considered at that time.
At the time of the written reprimand, Yvonne Brewer scheduled a team observation of Linda Alexsuk. The team was to consist of Yvonne Brewer, Betty Durden and the Moton School primary specialist, during which observation Yvonne Brewer wished to see improvement in her performance. Subsequent to that date,
the primary specialist, Karen Rice, was removed from the team, at her request, and Martin Yungmann was added to the team.
A team consisting of Yvonne Brewer, Martin Yungmann and Betty Durden was then scheduled to observe Linda Alexsuk's class on May 4, 1988.
At the time of the May 4, 1988, observation, Martin Yungmann was the district director of curriculum for the Hernando County school system. He holds a master's degree in education with 27 years of experience in the education profession. In addition, Martin Yungmann was certified to observe teachers' performance using the Florida Performance Measurement System (hereinafter referred to as F.P.M.S.).
At the time of the May 4, 1988, observation, Betty Durden was the supervisor of elementary curriculum for the Hernando County school district, which position she had held for six years. Betty Durden holds a master's degree in curriculum and instruction and has 29 years of experience in the education profession. Betty Durden has also been certified as an observer using the F.P.M.S.
Yvonne Brewer is certified to observe teachers using the F.P.M.S. and, in fact, because of her position as principal acts as an observer approximately 30-35 times per year.
The F.P.M.S. is an objective system which is used by all school districts in the State of Florida, except the Dade County school district, for the purpose of conducting observations in the master teacher program. In addition, the system is used to observe teachers in the beginning teacher program in 50 school districts in the state of Florida. In total, the F.P.M.S. is used to observe approximately eight thousand teachers per year in Florida. While F.P.M.S. may not be ordinarily used by other school systems in the state to evaluate experienced teachers and it may not be used as a disciplinary evaluation guide by other school systems; in the Hernando County School system, the F.P.M.S. is in fact utilized to evaluate all teachers, and has been so used for the last couple of years and in fact supervisors in the system have been directed by memo to use it as a tool for evaluation of all teachers.
On May 4, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann conducted an observation of Linda Alexsuk's class using the F.P.M.S. form.
Following the observation, a conference was held between Linda Alexsuk, Martin Yungmann, Betty Durden and Yvonne Brewer to discuss the team's observation.
On May 11, 1988 and May 25, 1988, Yvonne Brewer conducted additional observations of Linda Alexsuk's class using the F.P.M.S. form. Following those observations, Yvonne Brewer met with Respondent to discuss her observations. During those observations Yvonne Brewer observed the same recurring problems which had been identified in the May 4, 1988, observation.
Following these observations some suggestions for improvement of her deficiencies were offered to Linda Alexsuk. Respondent followed up on some of those suggestions. She also consulted with other teachers and reviewed books and materials on her own.
On June 2, 1988, Yvonne Brewer, Betty Durden and Martin Yungmann again observed Linda Alexsuk's class using the F.P.M.S. form. During that observation
all three team members observed recurring problems which had been identified during the May 4, 1988, observation and saw only one attempt, that being the giving of more directions, to implement the suggestions that the team had made following the May 4, 1988, observation.
Following the observation on June 2, 1988, a conference was held between Linda Alexsuk, Yvonne Brewer and Martin Yungmann, during which the team members discussed with Respondent the problems that they had observed.
One of the suggestions made by the observation team following the June 2, 1988, observation was for Linda Alexsuk to seek assistance at the Teacher Education Center (hereinafter referred to as TEC). In response Linda Alexsuk checked the list of course titles that were available for the summer at TEC, but took no classes because she was unable to get some of the classes she thought might be useful based upon the course titles. Instead, Ms. Alexsuk went back over some books that she had at home.
As part of the kindergarten curriculum, the kindergarten classes were to be taught a series of 20 words called the GINN words, which words are used in the first primer book at the first grade level. The kindergarten students were required to master a minimum of 80% of these words.
During the May 4, 1988, observation, Yvonne Brewer moved around the room and quickly informally tested ten. None of the ten children could give her the words in the manner requested.
After the observation Yvonne Brewer decided to have Linda Alexsuk's class tested in the GINN words by the Moton School primary specialist.
Karen Rice is the primary specialist at Moton School. As primary specialist Karen Rice is responsible for the implementation of Florida's pre law in the school and for monitoring the education that is being received by the students to guarantee that each student is receiving the education he/she personally needs. The primary specialist is also responsible for testing children who are referred by teachers who believe the students may need special attention either because they are exceptional or have learning problems.
On May 9, 1988, Karen Rice, at Yvonne Brewer's request, conducted a special achievement level test of the GINN words for children in Linda Alexsuk's class.
At the time the test was given by Karen Rice, the majority of the students should have been at the 80% or better level.
The results of the test Karen Rice conducted showed that of the 26 children in Linda Alexsuk's class, 22 did not know 80% of the words, 19 did not know 50% of the words, and 15 students knew 25% or less of the words.
On November 17,1988, Martin Yungmann, observed Linda Alexsuk's class using the F.P.M.S. form, during which observation Yungmann once again saw no new instruction. In addition, he reviewed Respondent's lesson plan book, and the lesson plan did not indicate the activities that were actually taught or the instruction, goals or objectives that Ms. Alexsuk was attempting to get across to the students.
Following the observation, Martin Yungmann discussed with Linda Alexsuk his observations and told Respondent that he had still not observed
actual new skill instruction after three observations and that he had observed recurring problems form previous observations.
During the conference Martin Yungmann indicated to Linda Alexsuk that he wanted to observe her class again primarily to observe the teaching of a new skill.
On November 18, 1988, Linda Alexsuk by note, notified Yvonne Brewer, who in turn notified Martin Yungmann, that Respondent would like to set Wednesday, November 30, 1988, as the date for Martin Yungmann to return to observe her class.
When Martin Yungmann arrived on November 30, 1988, for the scheduled observation, Respondent's class was not in session in the room, so the observation had to be rescheduled.
On December 5, 1988, Yvonne Brewer conducted her required annual observation of Linda Alexsuk's class, rating Respondent's overall performance as unacceptable. During the observation, Yvonne Brewer observed recurring problems from previous observations.
Following the December 5, 1988, observation, Yvonne Brewer met with Linda Alexsuk and discussed her observation of Respondent's performance.
On March 2, 1989, Betty Durden observed Linda Alexsuk's class, using the F.P.M.S. observation form. During the observation, Betty Durden observed recurring problems discussed with Respondent previously and, in fact, Betty Durden noted that the category of management of student conduct was worse that day than during previous observations.
Following the observation, Betty Durden met with Linda Alexsuk to discuss the observation.
On March 7, 1989, Martin Yungmann observed Linda Alexsuk's class. Prior to this observation, Yungmann had specifically instructed Respondent that he wanted to observe actual new skill instruction. Although Respondent presented new skill instruction, she had to practically read the instructions for the lesson to the students from note cards. Ms. Alexsuk did this in an attempt to satisfy Yungmann's purpose for the observation.
During the March 7, 1989, observation, Martin Yungmann observed recurring problem areas which had been discussed with Respondent.
Following the observation, Martin Yungmann discussed with Linda Alexsuk his observation and the recurring problems that he had observed.
On March 9, 1989, Yvonne Brewer was scheduled to observe Linda Alexsuk's class. However, after approximately twenty minutes, Respondent approached Ms. Brewer and stated that she was not feeling well and requested permission to leave early to go to the doctors. During the shortened observation period, Ms. Brewer completed the Hernando County Classroom Observation form, the objective portion of which was taken from the F.P.M.S. form. This evaluation evidenced a recurring problem with student misconduct and student management.
The comprehensive test of basic skills (hereinafter referred to as C.T.B.S.) is a standardized test which is given to all students in grades K
through 9 in the seventh month of the school year. In addition, C.T.B.S. is an indicator that can be used to evaluate a teacher's performance in a class where children randomly assigned, as they are in Hernando County.
The C.T.B.S. is made up of two areas: math and reading.
Ideally, since the test is given in the seventh month of the school year, kindergarten students should score at the k.7 level on the test.
Following the 1988-89 school year, and in preparation for the formal hearing in this case, Betty Durden combined the figures for class performance on the C.T.B.S. for all 38 kindergarten teachers in Hernando County. She did this at Yvonne Brewer's request.
The range of median class scores on the math portion of the C.T.B.S. for all 38 teachers was K.6 to 2.0. Linda Alexsuk's class median was K.6. There were three teachers at that lowest level of K.6. One teacher was not reappointed; one teacher had a class comprised of students repeating kindergarten. The third was Respondent's class.
The range of median class scores on the total reading portion of the
C.T.B.S. for all 38 teachers was K.5 to 2.1. Linda Alexsuk's class median was 1.0.
The total reading portion of the C.T.B.S. is made up of four subparts: visual recognition, source recognition, oral comprehension and vocabulary.
In certain subparts of the total reading test, such as consonant recognition, Linda Alexsuk's class scored very low. Of eight consonants tested, Respondent's class had the lowest recognition scores in the district on three on the consonants.
Although all classes in Hernando County are assigned to teachers in the same fashion (boy/girl/black/white), Linda Alexsuk was not as effective as most other teachers in maintaining classroom control.
One of the major problems which observers of Linda Alexsuk's class noted was a recurring problem of student management/class control. Although Respondent received suggestions on methods of gaining control, including hose form a special consultant hired to assist in her class, Ms. Alexsuk had difficulty keeping her students on task on a regular basis.
Control is one of the major domains of an effective teacher. If a teacher lacks control, as was evidenced in Linda Alexsuk's class, there will be an effect on the learning environment in that room which will influence the ability of the average student to learn in that room.
Linda Alexsuk sought the assistance of other peer teachers in preparing for her observations over the last two school years, and she practiced the lessons. In fact, she had one video taped. Alexsuk was never denied any request to help to improve her performance by any member of the management team. Further, as pointed out in finding of fact 7, the School Board employed an independent consultant to assist her in improving behavior management in her classroom. In addition, numerous conferences were held with her in conjunction with her annual reviews in which suggestions for improvement in her areas of weakness were made to Alexsuk. Yvonne Brewer, Betty Durden, and Marty Yungman so testified and the Hearing Officer so found in findings of fact 25, 27, 30,
38, 39, 44, 46, 47, 48. It should be pointed out that management, in response to Alexsuk's request, provided technical assistance and video equipment requested by Alexsuk to videotape the lesson as set forth in this finding of fact 62. Lastly, it is clear that the observing management team members in connection with the June 2, 1988 observation, suggested that Alexsuk seek assistance at the Teacher Education Center as set forth in finding of fact 30.
Linda Alexsuk suffered from nervousness which also affected her performance during observations. This was particularly a problem after the written reprimand because Respondent believed that "she was under the gun" and that her job was in jeopardy.
The F.P.M.S. forms from all of the observations were sent to the University of South Florida to be computer analyzed and compared to establish norms for the state of Florida. This was done after the recommendation to return Respondent to annual contract was made and was done solely in preparation for this hearing. The results of this analysis are not accepted or credited because they were not contemplated within the "good and sufficient reasons" alleged for the return of Ms. Alexsuk to annual contract. Although the School District had the F.P.M.S. forms computer analyzed after the decision to recommend the return to annual contract status of Alexsuk, the analysis was used only as a tool to verify that management's conclusions were not appropriate. (Brewer T 224 - 225).
The analysis of the C.T.B.S. data performed by Betty Durden is likewise not credited as evidenced of the alleged "good and sufficient reasons" because it was performed after the recommendation and solely for use as after- the-fact proof to the allegations.
Linda Alexsuk received a bachelor's degree in elementary education from the University of South Florida in 1972 and a master's degree in education administration in 1981.
Ms. Alexsuk holds a teaching certificate from the Florida Department of Education authorizing her to teach students from the early childhood level through fifth grade.
A teacher relies on the annual evaluation to gauge how she is performing and whether she is meeting the expectations of her superiors.
Linda Alexsuk was made aware of continuing performance problems observed by her managerial superiors prior to the March, 1988 evaluation.
Yvonne Brewer utilized the F.P.M.S. as an instrument of discipline to document the case for returning Linda Alexsuk to annual contract commencing in March of 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 231.36(4)(b), Florida Statues, provides:
(b) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract my be dismissed or may be returned to annual contract status for another 3 years in the discretion of the school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the school board on or before April 1 of any school years, giving good and sufficient reasons therefore, by the superintendent, by the principal if his contact is not under consideration, or by a majority of the school board. The employee who contract is under consideration shall be duly notified in writing by the party or parties preferring the charges at least 5 days prior to the filing of the written recommendation with the school board, and such notice shall include a copy of the charges and the recommendation to the school board. The school board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by as majority vote of the full membership of the school board. Any such decision adverse to the employee may be
appealed by the employee pursuant to s. 120.68 (emphasis added)
In this case the Petitioner, School Board, has charged that "there are good and sufficient reasons" to return Respondent, Linda Alexsuk, to annual contract status from her continuing contract status.
Petitioner failed to put on any evidence which proved that the procedural requirements of Section 231.36(4)(b) were met. Respondent asserts that Petitioner has failed to carry its burden of proof by this dearth of evidence on the procedural aspects and relies on Burns v. School Board of Palm Beach County, 283 So.2d 873 (Fla. 4th DCA 1973). This argument is rejected. Burns differs from this case in one major regard. There the procedural requirements were not met. Here, the requisite letter and notices simply were not placed in evidence at the hearing. At no time has Respondent alleged or argued that the procedural requirements were not met. By failing to assert, either by an answer, affirmative defense or other appropriate pleading, that the procedural requirements were not met, Respondent has distinguished this case from Burns and has waived the issue.
Respondent filed a Motion to Strike Non-Record evidence Contained in Petitioner's Findings of Fact and Conclusions of Law. The Motion to Strike is GRANTED, however, this ruling has no bearing on the outcome of this case.
There has also been considerable argument over the appropriate standards to be applied and whether the standard is "good and sufficient reasons" (Section 231.36(4)(b)) or the seven enumerated grounds found in Section 231.36(4)(c).
Having reviewed MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3rd DCA 1987), and other cases cited by the parties, it is concluded the correct standards is that of "good and sufficient reasons" and that term includes the seven enumerated grounds and any other reasons which rise to the level of being good and sufficient.
It is also concluded and the parties have agreed that the burden of proof is on the School Board to prove its case by clear and convincing evidence.
In applying these standards to the evidence in this case, it is concluded that the Superintendent has proven by clear and convincing evidence that there are "good and sufficient reasons" to return Linda Alexsuk to annual contract status.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, Hernando County School Board hereby:
Adopts those findings of fact and conclusions of law as set forth above.
Concludes that the Superintendent has shown by clear and convincing evidence that there are good and sufficient reasons to return Alexsuk to annual contract.
That despite the clear and convincing evidence of good and sufficient reasons to return Alexsuk to annual contract she not be returned to annual contract at this time but be given one more opportunity to correct her performance problems before the Superintendent decides what action, if any, to recommend with respect to her employment status for the 1990-91 school year and thereafter.
In that regard it should be noted that since the recommendation to return Alexsuk to annual contract was made by the Superintendent, Alexsuk has been transferred to another school, in a different program, under a different supervisor. The Superintendent has conferred with her current supervisor and has been informed that Alexsuk has improved in certain of the areas where she has continuously experienced problems in the past.
The Superintendent would emphasized that but for this change in circumstances, he would ask for the Board to reject the Hearing Officer's Recommendation and return Alexsuk to annual contract. However, because of the changed circumstances he believes one final opportunity to correct her clearly demonstrated performance problems in the new work environment.
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 9.110(b) and (c), F.R.A.P., within thirty (30) days of the date of filing.
DONE AND ENTERED this 9th day of January 1990.
PRESIDING OFFICER
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of Hernando County school Board vs. Linda Alexsuk was mailed to Linda Alexsuk, 421 Broad Street, Masaryktown, Florida, 34609, David Brooks Kundin, Esquire, attorney for Linda Alexsuk, 2544 Blairstone Pines Drive, Tallahassee, Florida, 32302, and the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, 32399-1550, via U.S. Mail, this 25th day of January, 1990.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT, STATE OF FLORIDA
LINDA ALEXSUK, NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND,
Appellant, IF FILED, DISPOSED OF.
vs. CASE NO. 90-331
DOAH CASE NO. 89-2520
SCHOOL BOARD OF HERNANDO COUNTY,
Appellee.
/ Decision filed January 29, 1991.
Administrative Appeal from the Division of Administrative Hearings.
David Brooks Kundin of Meyer and Brooks, P.A., Tallahassee, for Appellant. John T. Jaszczak of Hogg, Allen, Norton & Blue, P.A., Tampa, for Appellee.
PER CURIAM.
AFFIRMED.
COWART, GOSHORN and HARRIS, J.J., concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
THIS CAUSE having been brought to this court by appeal, and after due consideration the court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.
WITNESS the Honorable Joe A. Cowart, Jr., Chief Judge of the District Court of Appeal of the State of Florida, Fifth District, and the seal of the said court at Daytona Beach, Florida on this day.
Date: February 15, 1991
Fifth DCA Case No.: 90-331 County of Origin: Hernando
Trial Court Case No.: 89-2520 (Administrative)
Frank J. Herbshaw Clerk
| Issue Date | Proceedings |
|---|---|
| Nov. 20, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 29, 1991 | Opinion | |
| Jan. 09, 1990 | Agency Final Order | |
| Nov. 20, 1989 | Recommended Order | Standard in teacher demotion case is "good and sufficient reasons" and a weakness in student discipline and managements fails to meet that standard. |
