STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF OKEECHOBEE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3105

)

ANDREA CHILDS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Okeechobee, Florida on July 20, 1989.

APPEARANCES

For Petitioner: Tom W. Conely, III, Esquire

Law Offices of

CONELY & CONELY, P.A.

207 Northwest Second Street Okeechobee, Florida 34972

For Respondent: Lester W. Jennings, Esquire

110 Northeast 3rd Avenue Okeechobee, Florida 34972

STATEMENT OF THE ISSUES

As stated in the prehearing stipulation, the issue is whether the school board should accept or reject the recommendation by the superintendent of schools to reduce Andrea Childs from continuing contract status to annual contract status for the 1989-90 school year.

PRELIMINARY STATEMENT

This matter began on March 6, 1989, when the superintendent of schools wrote to Andrea Childs, informing her that he would recommend to the school board that she be returned to annual contract status for the 1989-90 school year. The recommendation was adopted by the school board on its consent agenda on March 14, 1989. Ms. Child appealed that action to the District Court of Appeal, Fourth District, which then relinquished jurisdiction to the school board to conduct an evidentiary hearing on Ms. Childs' teaching status under Sections 120.57 and 231.36, Florida Statutes (1987). The matter was then transferred to the Division of Administrative Hearings and a final hearing was held on July 20, 1989. No transcript of the hearing was filed. The parties filed their joint exhibits on August 9, 1989, and their findings of fact and conclusions of law by August 24, 1989. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order. A posthearing telephone

conference to discuss the effect of the decision in Edgar v. School Board of Calhoun County, 14 FLW 2275 (Fla. 1st DCA 1989), was held on October 16, 1989, at which the parties were granted five days in which to submit further legal argument based on that decision.

FINDINGS OF FACT

1. Andrea Childs was employed by the School Board of Okeechobee County as a teacher in December, 1980. Ms. Childs is certified as a teacher in Social Science. She taught 9th grade Social Science at the Okeechobee Junior High School for the school years 1980-81, 81-82, 82-83, and 83-84. She transferred to Okeechobee High School after the school board moved the 9th grade from the Junior High School to the High School. She has taught continuously at the High School since her transfer.

   
   

   Prior Evaluations

   
   

2. Ms. Childs' performance as a teacher was first evaluated on January 16, 1981. While her performance was found to be satisfactory, she had been on staff for such a brief period of time it was difficult to make a meaningful evaluation. She was next evaluated on March 16, 1981, and found satisfactory for all twenty characteristics contained on the school's evaluation form. On December 14, 1981, she was evaluated for the first semester of the 81-82 school years, and again rated satisfactory on all characteristics. Her evaluation at the end of the 1981-82 school year and the first semester of the 1982-83 school year found her satisfactory on all characteristics.

   
   

3. Ms. Childs was recommended for continuing contract in April, 1983, at the close of 1982-83 school year, when her evaluation was satisfactory on all characteristics. She obtained a continuing contract on May 19, 1983. When her teaching at the Okeechobee High School was evaluated on February 20, 1984, she was rated satisfactory on all twenty characteristics.

   
   

4. Ms. Childs was next evaluated at the end of the second semester of the 1984-85 school year by her new principal, Phoebe Raulerson. The evaluation forms used by the district then changed. The behaviors to be assessed were grouped into six categories, each having subdivisions denominated as indicators. Ms. Raulerson evaluated Ms. Childs' performance as meeting each of the 31 indicators. The new evaluation forms also included a separate assessment of additional factors called employability behaviors, and Ms. Childs was found acceptable on each of those behaviors.

   
   

5. On April 1, 1986, Ms. Raulerson again evaluated Ms. Childs, and found that Ms. Childs' teaching performance met all 31 indicators, and that Ms. Childs' performance was acceptable on each of the employability behaviors during the 1985-86 school year. On April 13, 1987, Ms. Raulerson found that Ms. Childs' performance met all 31 indicators and found her service acceptable on all employability behaviors. On March 11, 1988, Ms. Raulerson evaluated Ms. Childs, finding that her performance met all 31 indicators and acceptable on all employability behaviors.

   
   

6. At no time from her first employment with the school board in December, 1980 through her annual evaluation on March 11, 1988, was there any finding that Ms. Childs had failed to perform satisfactorily on any characteristic, indicator or employability behavior evaluated by the School Board of Okeechobee County.

   In February, 1988, as will be discussed in greater detail below, Ms. Raulerson observed Ms. Childs' teaching, determined that her performance was inadequate,

   and recommended to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status. When confronted at hearing with the uniformly positive evaluation Ms. Childs had received, including those from Ms. Raulerson herself for each of the school years from 1984-85 through 1987-88, Ms. Raulerson deprecated her own evaluations with the suggestion that Ms. Childs had been in poor health since the birth of her first child in approximately August, 1985, 1/ and explained that the positive evaluations should not be taken at face value. Ms. Raulerson contended that Ms. Childs' performance was evaluated leniently because of her health difficulties. There is no such indication on the evaluation. Ms. Raulerson is obviously a competent principal who does not confuse efforts with results. The evaluations were accurate as written, and there were no deficiencies in Ms. Childs' performance during any prior school year.

   
   

   The Oblique Warning

   
   

7. During the teachers' work period before students returned to school in August 1988, Ms. Childs had an informal discussion with Ms. Raulerson, during which Ms. Raulerson told Ms. Childs "this has got to be a good year". Apparently Ms. Raulerson meant to tell Ms. Childs that her performance as a teacher needed to show improvement that year. If that was her intention, her choice of words was so oblique that the message was not conveyed. An ordinary listener would not have understood the comment as a criticism of past teaching

   performance. The comment was so general that it would not draw the attention of a teacher to any area of deficiency which a teacher could then attempt to correct. There was no criticism of Ms. Childs' performance on her last evaluation which could have served as a focus for any need for improvement. Ms. Raulerson is an experienced administrator, able to draw the attention of teachers, students or others at the school to inadequate performance or misconduct in a direct manner.

   
   

8. In the Okeechobee High School, students are grouped for classes by broad ranges of ability. There are classes for slow learners, known as basic classes, as well as for regular students. In 1988-89 school year, Ms. Childs taught two basic classes, and other regular social studies classes.

   
   

9. The classes which Ms. Childs taught during the sixth and seventh periods were basic classes. Ms. Childs had some difficulty with the behavior of two students in basic classes, and discussed the problem with an Assistant Principal, Barbara James, on September 15, 1988. One of the problems was tardiness by some of her students. Ms. James' written suggestions to Ms. Childs for dealing with the problem included:

   
   

   In the beginning, you might try some extra, positive reinforcement for the on-time rule until you get going, if tardies are a problem. Always be on time yourself.

   
   

   This advice was a common sense suggestion to a class management problem. It was not any sort of admonition to Ms. Childs that she herself was not arriving to teach her classes on time and that she should make a better effort to be punctual.

   
   

   Tardiness

   
   

10. Unknown to Ms. Childs, Ms. James, the Assistant Principal, had mentioned to the Principal, Ms. Raulerson, that Ms. Childs was sometimes arriving late for her classes. Ms. Raulerson told Ms. James to keep track of

    the times Ms. Childs was late for a class. Ms. James noted 11 instances between September 19, 1988, and February 27, 1989, of apparent tardiness by Ms. Childs.

    
    

11. Ms. Childs was not in her classroom at the beginning of first period on 5 of those occasions (all in September of 1988), but there was good reason for this. That class was made up of 11 Junior and Senior students during the first semester, and 9 Juniors and Senior students during the second semester. Ms. Childs taught in a small portable building, separated from the main building. It had no clock, nor a working intercom system with the main building. Ms. Childs left her first period class to go to the school office to listen to the daily school announcements which she could not hear in her classroom. This was important, because those announcement often contained relevant information about subjects such as class meeting and scholarships, and students were charged with notice of the information. This information was not always available from other sources. Ms. Childs ultimately avoided this problem by taking her students to the cafeteria at the opening of first period so they could hear the announcements. No one at the office had ever indicated that she should not be there. The School's Faculty Handbook does tell teachers to remain in their classroom during class periods.

    
    

12. Ms. Childs had frequently asked to have the intercom line between her classroom and the main building fixed. There was no adequate explanation for why the intercom had not been fixed. Ms. Childs' actions were common sense accommodations to the problem which confronted her and her students.

    
    

13. Other instances when Ms. Childs was seen out of her classroom when first period began occurred during the second semester, in February, 1989. At this time she was team teaching with another teacher, Ms. Audrey. That teacher was in the classroom, and Ms. Childs was using the time to prepare lessons for her sessions of that class on the Holocaust. Those students were not left unattended.

    
    

14. Ms. Childs' lateness in arriving for class during the first semester is much less than it seems on its face. The charges with respect to lateness are mere makeweight arguments.

    
    

    The Teaching Evaluation

    
    

15. The contract between the school board and the teachers union for Okeechobee County prescribes a procedure for teacher evaluation which is consistent with the Okeechobee County Teacher Assessment System adopted by the school board on June 28, 1988. According to the school board policy and the union contract, teachers are provided with copies of the forms and procedures that will be used in the evaluation process. The teaching performance of continuing contract teachers is assessed by the principal at least once annually. The assessment for Ms. Childs was made on February 27, 1989. She had received the evaluation forms at the beginning of the year, as did all other teachers. The assessment of a teacher is based on observations conducted and other information gathered during the year by the principal, supervisor or assistant principals. The evaluation of teaching is accomplished using the summative evaluation from the Florida Performance Measurement System, i.e., an evaluation used for personnel decisions about a teacher, rather than an evaluation done to assist the teacher in developing good teaching technique, which is know as a formative evaluation. Ms. Raulerson had been trained in the use of the Florida Performance Measurement System summative evaluations.

16. Before February 27, 1989, Ms. Childs received no oral or written notice that she was not performing her duties as a teacher in a satisfactory manner, and had no conference with any school administrator about unsatisfactory performance. Of necessity, she had been given no recommendations about ways in which to remedy any specific areas of unsatisfactory performance.

    
    

17. On February 27, 1989, Ms. Raulerson observed Ms. Childs' first period class. This single class period provides the sole basis for Ms. Raulerson's evaluation of Ms. Childs' teaching for the entire year. By its very nature, that sample of teaching is entirely too small to permit Ms. Raulerson validly to generalize a conclusion that Ms. Childs' teaching is inadequate. 2/ After observing Ms. Childs during the first period, Ms. Raulerson had a consultant who is a professor of education at Florida Atlantic University, Dr. Mary Gray, who was at the school that day, observe Ms. Childs during the class period which begins at about 10:50 a.m. Ms. Raulerson had a brief discussion with Dr. Gray following her observation. By the fifth period on February 27, Ms. Raulerson presented Ms. Childs with her evaluation report. Ms. Raulerson informed Ms. Childs that Ms. Raulerson would recommend to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status for the 1989-90. The whole evaluation process was remarkably swift.

    
    

18. Ms. Raulerson was obviously displeased by what she saw during Ms. Childs' first period class, but the summary fashion in which she completed the evaluation is more indicative of pique than of reasoned professional analysis and judgment. Ms. Raulerson became angry, and allowed that anger to guide her actions.

    
    

19. During the first period on September 27, 1989, Ms. Childs taught American History. She showed the class a video that she had searched out prepared by the National Geographic Society. The video dealt with the conservation of tigers and other animals in India. It was a story of Jim Corbet, who formerly had been a big game hunter, but who later become a conservationist. At first blush this video seems to have little to do with an American History class, but upon analysis, this is not the case. Ms. Childs was teaching students about the presidency of Theodore Roosevelt, and his personal transformation from a game hunter to conservationist, including his significant role in the establishment of a national parks system in the United States. Drawing the analogy between a contemporary big game hunter who had become a conservationist with the conversion of Teddy Roosevelt was one reasonable way to relate current experience to history and assist the students in comparing and contrasting concepts using different people as examples. Since the student text devoted three of seven and one half pages on Teddy Roosevelt to conservation, Ms. Childs' use of the film is defensible. No doubt, different educators might have different views as to how to approach the subject. To conclude from this single event, however, that Ms. Childs was deficient in the categories of content coverage and utilization of instructional material cannot be sustained.

    
    

20. Ms. Childs also used the same video in other classes she taught on February 27, 1989, including World History and four World Geography classes. The video was appropriate for those classes also. It is not unusual for a teacher to show the same video to all of her classes. It makes sense to concentrate the use of audiovisual materials across several classes to minimize the logistical problems inherent in having the equipment delivered on a number of days at different class periods. The use of the video in several classes cannot have been very important in Ms. Childs' evaluation, however, because the only class period which Ms. Raulerson observed was the first period. It is

    difficult to understand how Ms. Raulerson could criticize the use of the video in other classes which she had not observed.

    
    

21. More importantly, the Florida Performance Measurement System is designed to evaluate traditional teaching performance. The materials which make up the performance system point out that the summative evaluation of teaching cannot be performed during a class period if a test is given to students of 20 minutes duration or longer. Similarly here, the attempt to perform a summative evaluation during a class period where the teacher was screening a video renders the teaching evaluation invalid. An administrator trained in the use of the system should have know this. In any case, the expert testimony offered by Dr. Heald on the inappropriateness of using the Florida Performance Measurement System during a class period in which the video was shown is persuasive; the evaluation made is invalid.

    
    

22. Ms. Raulerson also criticized Ms. Childs in the evaluation because two students in the class watching the video were "off task". One student removed a compact from her purse and put power on her face while watching the video. She had put powder on her face in other classes without being criticized. The action distracted no one. One could easily put on makeup while still paying attention to the film. It is inappropriate to generalize from this event that Ms. Childs generally fails to "stop misconduct" in her classes. Another student had obtained Ms. Child's permission before class to wrap a box with construction paper which the student was going to use in a peer teaching class. The student was a good student who could easily watch the film while devoting some time to covering the box. Ms. Childs' decision to grant the student permission to cover the box while watching the film is an insufficient basis to determine that Ms. Childs generally fails to stop misconduct in her classes. No misconduct was involved.

    
    

23. These same instances also were the basis for determining that Ms. Childs does not orient students to classwork and maintain academic focus. As with the criterion dealing with misconduct, these instances do not support the generalization Ms. Raulerson made from them.

    
    

    Spelling

    
    

24. On the area of presentation of subject matter, Ms. Raulerson found Ms. Child deficient for the indicator "treats concept- definition/attributes/examples/non-examples", with the comment "many words incorrectly spelled". This is the result of trivial misspellings contained in forms Ms. Childs completed during the year. One form was a referral slip written by Ms. Childs when a student misbehaved and was being sent to the office; it contained the word "surprize". The other was a note sent in lieu of a referral slip resulting from a fight where the word "cussed" appeared as "cused" and "none" is written "non". Since the notes obviously were written in haste in an effort to correct discipline problems, the misspellings are of no consequence. The spelling Ms. Childs used is, however, one recognized spelling of the word "surprise". In another situation, she wrote in a note on a student progress report that the student was failing "royaly". This was also a handwritten note that was passed from teacher to teacher for comments about the student's performance. Given its nature, the misspelling in this internal memo is of little significance.

    The Gray Notes

    
    

25. Shortly after Ms. Raulerson's first period evaluation, Ms. Childs was evaluated by Professor Mary Gray from Florida International University. Ms. Childs had not been told beforehand that Dr. Gray would be observing her teaching that day. Had she know this, she would have rearranged her lessons so that she would have been providing a more standard lecture format for her class in order to benefit from the observation. Dr. Gray made notes of her observation of Ms. Childs. These five pages of notes written on legal pad sheets were introduced at the hearing as corroboration of the testimony of Ms. Raulerson, who had spoken with Dr. Gray before the summative evaluation was completed and given to Ms. Childs during fifth period on February 27, 1989. While the notes may be technically admissible as corroboration, Ms. Gray did not testify at the final hearing, and review of those notes is unenlightening.

    
    

    Lesson Plans and Punctuality

    
    

26. Ms. Raulerson rated Ms. Childs unsatisfactory for dependability and "following policies and procedures" because lesson plans had not been completed before the lesson was presented on February 27, and because of her lateness for classes. Ms. Childs had been specifically instructed by her department chairman that her lesson plans for the week could be completed during her free period on Monday. As a result, she did not have a lesson plan already written out during the first period on Monday, February 27. It is true that the Faculty Handbook distributed to teachers for the 1988-89 school year states, under the heading "Plan Book and Grade Books," the following:

    
    

    Friday afternoon each teacher must hand in a copy of his/her plans for the next week to the Department Chairman.

    
    

    The faculty handbook is a tool created by the school administration, it was not shown to be a rule of the school board, although the board has a similar "policy." Exhibit 15. Having first established the general requirement that lesson plans should be submitted on the Friday before the week of instruction, the school administration also could modify that requirement. The general practice at the school did modify it. Ms. Childs' compliance with her department chairman's instruction and the general practice of the school should not be held against her.

    
    

27. Finding that Ms. Childs' punctuality was unacceptable because she was not in class on time has been discussed above. It would be one thing if Ms. Childs had been late in arriving at school, but that was not the case. Her absence from classes early in the year occurred because she was learning announcements which both she and her students were required to know. Her conduct was a reasonable means of dealing with a difficult situation created when the school administration failed to make the speaker in her portable classroom operational. It is also significant that there were no instances of misbehavior by her students while she was spending the first few minutes of her class period in learning the announcements. The class was made up of older students with good records, so that leaving them unattended was not fraught with the peril presented by leaving younger or less responsible students without supervision for a few minutes early in the first class period.

    Procedural Errors

    
    

28. After receiving the evaluation report prepared by Ms. Raulerson, the superintendent of schools recommended to the school board that Ms. Childs be reduced to annual contract for unsatisfactory performance. This would have the effect of terminating her continuing contract status. He sent Ms. Childs' notice of his recommendation on March 6, 1989. The matter was considered by the school board at its meeting on March 14, 1989, despite the requirement in the contract with the teacher's union that:

    
    

    Any teacher terminated from his/her contract shall have an opportunity to be heard before public hearing after at least ten (10) days written notice of the charges against him/her and of the time and place of hearing.

    Exhibit 13 at page 67 lines 2-5.

    
    

29. The recommendation of reduction to annual contract was placed on the consent agenda, which means that the matter was considered favorably but without discussion at the board meeting. As a result of the board's action, Ms. Childs filed an appeal with the District Court of Appeal, Fourth District challenging her reduction to annual contract. By agreement of the parties, the court relinquished jurisdiction to the school board to conduct a full Section 120.57(1) hearing on Ms. Childs' contract status, which lead to this hearing.

    
    

    The Board's Assessment Policies

    
    

    1. The Okeechobee County Teacher Assessment System

       
       

30. During the summer of 1988, the School Board of Okeechobee County adopted a systematic procedure for the evaluation of teacher performance know as the Okeechobee County Teacher Assessment System. That program had been developed by a committee established by the school board; among the members of the committee were the principal of the Okeechobee High School, Ms. Phoebe Raulerson, and the Superintendent of Schools, Mr. Danny Mullins. Under the heading of "Philosophy", the procedure adopted by the school board states:

    
    

    Teachers who experience performance problems should be advised of specific problems and provided assistance. Also, teachers who demonstrate superior performance should be recognized for their talent and diligence.

    
    

31. In the substantive portion describing the procedure for assessment of teaching, the school board policy states:

    
    

    In the event that an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and assistance in helping to correct such deficiencies with a reasonable, prescribed period of time. Exhibit 14 at I., General Procedure.

    
    

    1. The Union Contract

32. The School Board of Okeechobee County had a collective bargaining agreement with the Okeechobee Federation of Teachers which was in effect during the 1988-89 school year. The contract contains provisions governing personnel rights, which give every teacher the right to due process and grievance procedures. The contract also has a provision regarding teacher evaluation, which provides:

    
    

    . . . in the event an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time. Exhibit 13 at 43.

    
    

33. The provisions on teacher assessment in the County's Teacher Assessment System and the union contract are essentially identical. The question arises whether the employee is entitled to a written description of unsatisfactory performance and the opportunity to correct performance deficiencies within a reasonable, prescribed period of time before the conduct may be embodied in an evaluation having adverse consequences on the teacher's employment status, or whether the adverse evaluation can itself be the written statement of unsatisfactory performance and result in reduction from continuing contract to annual contract status before the teacher has been offered assistance from the school board in correcting deficiencies. Viewed together, both the County Teacher Assessment System, and the Teacher Evaluation portions of the union contract indicate that a teacher will receive written notice of unsatisfactory performance and assistance in correcting deficiencies before adverse employment action is taken by the school board. It would be unreasonable to interpret the provisions of the Assessment System and the union contract quoted above to allow the school board to terminate an employee by following the procedure the board and its administration used here. The action the board has attempted to take with respect to Ms. Childs is less severe than termination, but it is adverse employment action. It was not preceded by delivery of any written statement of unsatisfactory performance to Ms. Childs. No administrator made any recommendations to Ms. Childs about how to improve her performance or established a period of time in which to correct deficiencies before her continuing contract status was threatened with termination. Ms. Raulerson's brief conversation with Ms. Childs at the opening of the year does not suffice, because it was not a written statement of unsatisfactory performance, and was not sufficiently specific to advise Ms. Childs of any failings. The written suggestions given to Ms. Childs by the Assistant Principal, Ms. James, were not criticisms of Ms. Childs putting her on notice that the administration found her performance inadequate. As discussed above, the general admonition in the second paragraph of Exhibit 1, "Always be on time yourself", was not an effort by the administration to put Ms. Childs on notice that her practice of going to the office to learn announcements which could not be heard in her classroom, in order to pass them on to her students, was unacceptable. The proposed reduction in contract status is inconsistent both with the Okeechobee County Teacher Assessment System and the provision of the union contract on teacher evaluation.

    Summary

    
    

34. The basic problem in this case arose from Ms. Raulerson's dissatisfaction with the instruction she observed in Ms. Child's first period class on February 27, 1989. Ms. Raulerson attempted to apply the Okeechobee Teacher Assessment System in her observation, even though that system, and the state system on which it is based, is structured so that it cannot validly be applied when the lesson observed is an audiovisual presentation. Educators may differ over whether the National Geographic film shown in the American History class was appropriate, but Ms. Childs' explanation is cogent, and supported by the expert testimony of Dr. Heald. The use of the film was not improper. Ms. Raulerson completed the teaching evaluation of Ms. Childs based on the single, unrepresentative and invalid observation, and a brief discussion with Dr. Gray, who had observed the third period class. This resulted in a disciplinary recommendation which was unduly severe, and inconsistent with the procedures set out in the Okeechobee County Teacher Assessment System and the Board's contract with the Okeechobee Federation of Teachers.

    
    

    CONCLUSION OF LAW

    
    

    The Division of Administrative Hearings has jurisdiction over this matter.

    Section 120.57(1), Florida Statutes, (1987).

    
    

35. The School Board has the authority to discipline teachers who hold continuing contracts. The manner in which that authority may be exercised was set by the Legislature in Section 231.36(4)(b), Florida Statutes, which provides:

    
    

    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 three 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 five 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 Section 120.68.

    
    

36. There are few decisions from the Courts of Appeal interpreting Section 231.36(4)(b) or applying the "good and sufficient reasons" standard found in that statute. MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3rd DCA 1987) accords school boards broad discretion in determining whether good and sufficient reasons exist to reduce an employee from continuing to annual

    contract status under Section 231.36(4)(b), Florida Statutes, and hold that the board's reasons are not limited to the seven grounds for dismissal of teachers enumerated in Section 231.36(4)(c), Florida Statutes (1985). MacPherson affirmed the school board's decision to reduce a teacher from continuing contract to annual contract for excessive absenteeism caused by injuries to her feet resulting from her diabetic condition. A somewhat similar situation had been presented in School Board of Nassau County vs. Arline, 408 So.2d 706 (Fla. 1st DCA 1982), reversed for further proceedings, U.S. 107 S. Ct.

    1123 (1987). Arline, however, involved the dismissal of a teacher due to illness, under Section 431.36(4)(c), Florida Statutes, (1981), not a reduction in contract status. Burns v. School Board of Palm Beach County, 283 So.2d 873 (Fla. 4th DCA 1973) forbids a school board from reducing the salary of a teacher who holds a continuing contract. Section 231.36 permits a board to dismiss a teacher or return him to annual contract in appropriate situations, but it does not permit a salary reduction.

    
    

37. Edgar v. School Board of Calhoun County, So.2d , 14 FLW 2276 (Fla. 1st DCA 1989) upholds reduction of a principal to annual contract status when he persisted in overspending internal school funds, after the school superintendent had reviewed an audit disclosing the deficit spending with district administrators, apparently including the principal. The court upheld the determination that the willful overspending was a sufficient reason to return the principal to annual contract. Here there is no factual basis for a finding of willful misconduct by Ms. Childs.

    
    

38. The principal's recommendation was based upon the results of the observation ostensibly conducted pursuant to the Okeechobee County Teacher Assessment System. The observation is invalid. The other charges contained in the letter to Ms. Childs from the superintendent dated March 6, 1989 which do not arise from the observation conducted on February 27, 1989 were failure to begin instruction promptly by being late for classes, not spelling words correctly, and not turning in lesson plans on time.

    
    

39. Ms. Childs' absence from class is adequately explained by her attempt to learn the announcements for which her Junior and Senior students would be held accountable, but which they could not hear because there was no loudspeaker in their classroom. Ms. Childs did not merely arrive late for class, as the charge would seem to imply. Whether or not the choice she made was the best one is not the issue here. Perhaps some other means of obtaining the announcements should have been found. No administrator in the office ever objected to her presence. Her attempt to accommodate her students' needs by going to the office to hear the announcements is not a good or sufficient reason for reducing her from continuing contract to annual contract status.

    
    

40. Likewise, the misspellings which the school board points to are trivial matters. They were not drawn from instruction which Ms. Childs was giving. They come from internal documents necessarily written in haste or under pressure. Her misspelling were never brought to her attention by her superiors as the Okeechobee County Teacher Assessment System and the union contract would have required, if those misspelling were to be the bases for adverse employment action. These misspellings do not constitute good or sufficient reasons for reducing Ms. Child's continuing contract status.

    
    

41. The matter of the lesson plans has been discussed in the findings of fact. The faculty handbook was functionally amended by the administrative practice of requiring teachers to submit lesson plans on the Monday of the week of instruction. This precludes a finding that conforming to that practice can

serve as a basis for discipline in the form of reducing Ms. Childs from continuing contract to annual contract status.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a Final Order be entered by the School Board of Okeechobee County instructing the superintendent to prepare a contract for Andrea Childs for the 1989-90 school year in the usual form for continuing contract teachers.

DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1989.

WILLIAM R. DORSEY, JR.

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 3rd day of November, 1989.

ENDNOTES

1/ Surgery incident to that birth necessitated her absence from school through early October, 1985. In February, 1987, with the birth of her second child and consequent complications, Ms. Childs was absent from February 9, 1987 through the end of the school term and her ability to walk up steps was limited. Ms.

Childs had no health problems during the 1988-89 school year.

2/ The converse would not necessarily be true. Observing satisfactory teaching in a single period by a teacher who has obtained continuing contract status does not guarantee that all teaching during the year had been similarly satisfactory, but the Principal could rationally choose not to investigate teaching performance further and give the teacher a satisfactory evaluation, i.e., one which would have no adverse affect on that teacher's employment status.

APPENDIX TO RECOMMENDED ORDER

Rulings on findings proposed by Ms. Childs:

1. Accepted as amended in Finding of Fact 1.

2. Generally accepted in Findings of Fact 2-5.

3. Adopted in Finding of Fact 17.

4. To the extent appropriate, adopted in Finding of Fact 28.

5. To the extent appropriate, adopted in Finding of Fact 28.

6. Rejected as unnecessary.

7. To the extent appropriate, covered in Finding of Fact 29. Most of the proposed finding is unnecessary.

8. Generally covered in Findings of Fact 19, 21, 23, 24.

9. Covered in Findings of Fact 19 and 20.

10. Covered in Findings of Fact 10-14.

11. Covered in Finding of Fact 21.

12. Adopted as modified in Finding of Fact 24.

13. Adopted as modified in Finding of Fact 21.

14. To the extent appropriate, covered in Finding of Fact 24.

15. Adopted as modified in Finding of Fact 26.

16. Rejected as unnecessary.

17. Adopted as modified in Finding of Fact 30.

18. Adopted as modified in Finding of Fact 32.

19. Incorporated in Finding of Fact 33.

20. Rejected as argument, and unnecessary to the findings of fact.

21. To the extent appropriate, dealt with in Finding of Fact 9.

22. Rejected as argument.

23. Rejected as argument.

24. Covered in the Conclusions of Law.

25. Accepted in Finding of Fact 15.

26. Adopted as modified in Finding of Fact 25.

Rulings on proposals by the School Board:

1. Not adopted as unnecessary.

2. Covered in Findings of Fact 2-5.

3. Covered in Findings of Fact 2-5.

4. Dealt with in Finding of Fact 6 and footnote 1. The school board reads too much into Exhibit 21.

5. Dealt with in Finding of Fact 7.

6. Adopted in Finding of Fact 6 and footnote 1.

7. Adopted in Finding of Fact 9.

8. Adopted as modified in Finding of Fact 9.

9. Discussed in Findings of Fact 10-14.

10. Rejected because the documentation, Exhibit 19, is unclear. Apparently this was kept by Barbara James, who did not testify at the hearing.

11. Rejected as unnecessary.

12. Adopted in Finding of Fact 15.

13 and 13(a). Discussed in Findings of Fact 19 and 34. 13(b). Adopted as amended in Finding of Fact 26.

13(c) and 13(d). Adopted as amended in Finding of Fact 21.

1. Adopted in Finding of Fact 17.

2. Discussed in Finding of Fact 24.

3. To the extent appropriate, discussed in Finding of Fact 25.

1. To the extent appropriate, discussed in Finding of Fact 25.

2. Implicit in Finding of Fact 33.

3. Adopted in the preliminary statement.

1. To the extent appropriate, dealt with in Findings of Fact 26 and 27.

2. The material concerning plan books is found in Finding of Fact 27, that concerning remaining in classrooms in Finding of Fact 11.

3. Adopted in Finding of Fact 30. 25(a). Adopted in Finding of Fact 15. 25(b). Adopted in Finding of Fact 15. 25(c). Implicit in Finding of Fact 17.

25(d). To the extent relevant, discussed in Finding of Fact 17.

25(e). Implicit in Finding of Fact 28.

26. Rejected for the reasons stated in Finding of Fact 33.

1. Rejected as irrelevant and contrary to the evidence credited in Finding of Fact 25.

2. Generally accepted in Finding of Fact 28; the error made did relate to the period of notice provided by the Superintendent.

3. Rejected for the reasons stated in Finding of Fact 33.

4. Rejected for the reasons stated in Finding of Fact 33.

5. Rejected as irrelevant. This proceeding has fully afforded Ms. Childs her due process rights.

COPIES FURNISHED:

LESTER W. JENNINGS, ESQUIRE

110 NORTHEAST THIRD AVENUE OKEECHOBEE, FLORIDA 34972

TOM W. CONELY, ESQUIRE

LAW OFFICES OF CONELY & CONELY, P.A.

207 NORTHWEST SECOND STREET OKEECHOBEE, FLORIDA 34972

HONORABLE BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL

TALLAHASSEE, FLORIDA 32399

DANNY L. MULLINS, SUPERINTENDENT OKEECHOBEE COUNTY SCHOOL BOARD

100 SOUTHEAST FIFTH AVENUE OKEECHOBEE, FLORIDA 34974

================================================================= SCHOOL BOARDD RESOLUATION

================================================================= THE SCHOOL BOARD OF OKEECHOBEE COUNTY

SCHOOL BOARD OF OKEECHOBEE ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) DOAH No. 89-3105

)

ANDREA CHILDS, )

)

Respondent, )

)

RESOLUTION

THIS CAUSE is before the School Board of Okeechobee County for consideration of the Recommended Order (a copy of which is attached hereto) in the above-styled proceeding and for final agency action.

Upon such consideration and being advised in the premises, the School Board of Okeechobee County accepts the Findings of Fact, Conclusions of Law, and Recommendation as set forth in the Recommended Order, in toto, incorporating the same herein by reference, except as amended below.

This Resolution should not, however, be construed or interpreted as a modification of Policy G-13 entitled "Homework and Lesson Plans", a retreat from the rule set forth in faculty handbooks that teachers are to always remain in the classroom with their students except when an intern is assuming responsibility, or a relaxation of any other policies regarding the responsibilities, duties and conduct of the instructional personnel.

NOW THEREFORE, BE IT RESOLVED BY THE SCHOOL BOARD OF OKEECHOBEE COUNTY,

meeting in regular session on November 21 1989, that Andrea Childs, shall remain on a continuing contract of employment with the Okeechobee County School Board for the 1989-90 school year and that the action of this Board of March 14, 1989, concerning the contractual status of Andrea Childs is hereby rescinded.

PASSED AND ADOPTED this 21st day of November, 1989.

THE OKEECHOBEE COUNTY SCHOOL BOARD

BY: DONNA GAIL ENRICO, Chairman

ATTEST:

BY:

DANNY L MULLINS, Superintendent

Docket for Case No: 89-003105

Orders for Case No: 89-003105