STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4272

)

CLEMENTINE JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 28, 1994, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary E. Eckstine, Esquire

Senior Assistant General Counsel Office of General Counsel

220 East Bay Street, 6th Floor Jacksonville, Florida 32202

For Respondent: Clementine Johnson, Pro Se

3104 West 12th Street Jacksonville, Florida 32205

STATEMENT OF THE ISSUE

Should Respondent be dismissed from her employment with Petitioner School Board for "professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act" (Ch. 21197, Laws of Florida, 1941, as amended by Chs. 70-671, 72-576, and 81-372, Laws of Florida).

PRELIMINARY STATEMENT

An April 25, 1994 Notice of Proposed Dismissal informed Respondent of the Duval County School Board Superintendent's intention to discharge her as a teacher based upon a charge of professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act.

Respondent timely requested a hearing before the Division of Administrative Hearings.

At formal hearing, Petitioner presented the oral testimony of Ronnel Poppell, Jane B. Friedlin, Shirley Rodriguez, Bennie Floyd-Peoples, Michael Kemp and Dr. Jordan E. Baker, Sr.. Petitioner had 26 exhibits admitted in evidence. Petitioner called Respondent as a rebuttal witness and through her testimony a twenty-seventh exhibit was admitted over her objection. Respondent cross-

examined Petitioner's witnesses, testified in her own behalf, and had four exhibits admitted in evidence. One exhibit was admitted by agreement as Joint Exhibit A.

A transcript was filed on November 14, 1994.

An order was entered on December 16, 1994, dealing with the problem occasioned by Respondent filing what appeared to be two proposed recommended orders, one on November 21, 1994 beginning, "My proposed recommended orders

...", and the other on December 8, 1994, entitled, "A Recommendation Proposal". Neither item contained a certificate of service to the School Board's attorney.

Respondent's first filing was forwarded by the undersigned to the School Board attorney with a letter of explanation. The December 16, 1994 order gave formal notice of ex parte communication with regard to the Respondent's second filing, and provided, in pertinent part, that, "[I]f Ms. Johnson has not already sent a copy of her "A Recommendation Proposal" to the School Board attorney, she shall send him a copy as soon as she receives this order. ... [A]s soon as she gets this order, Ms. Johnson shall notify the undersigned hearing officer in writing, filed with the Division of Administrative Hearings, which document constitutes her proposed findings of fact (either her letter dated November 21, 1994 or "A Recommendation Proposal" dated December 7, 1994 ... but not both."

Respondent telephoned the office of the undersigned and informed a secretary that she had sent a copy of the second filing to the School Board attorney. However, she never indicated orally or in writing which filing she wanted considered as her proposed findings of fact. Accordingly, the first item filed by Respondent is determined to be her proposed findings of fact and conclusions of law and the proposed findings of fact thereof have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.. Petitioner's proposed findings of fact have likewise been ruled upon in the appendix, pursuant to Section 120.59(2) F.S.

The Respondent's second filing is 21 pages long, with each page individually encased in plastic. It does not meet the applicable rules for the format of proposed findings of fact, including but not limited to neither the pages nor the paragraphs being sequentially numbered and containing only some references to exhibits, but no references to pages of the transcript of proceedings, which transcript was provided without cost to the Respondent by the Petitioner. Respondent's second filing is deemed to be little more than moral and legal argument. Any proposed facts therein are unnecessary, subordinate, or cumulative to the facts as proposed in Respondent's first filing and to the facts as found in this recommended order. It is rejected for the foregoing reasons.

FINDINGS OF FACT

1. For purposes of this proceeding, Petitioner Duval County School Board is an agency of the State of Florida charged with administrating the Duval County Teacher Tenure Act as cited above.

   
   

2. Respondent Clementine Johnson is a certificated and tenured teacher pursuant to the provisions of that Teacher Tenure Act. She has been employed by Petitioner at all times relevant.

3. The charging document only covers the 1992-1993 and 1993-1994 school years. During the 1992-1993 school year, Respondent was assigned to Ed White High School. During the 1993-1994 school year, Respondent was assigned to Arlington Middle School.

   
   

4. Ronnel Poppell was the principal at Ed White High School during the 1991-1992 and 1992-1993 school years. He has been an employee of the Duval County School Board for 34 years. During the last 17 years of that time, he has served as a school principal at various schools. He holds a Bachelor's Degree and a Master's Degree and is certificated in Physical Education and Health and in Administration Supervision. At the time of the hearing herein, he was the immediate past president of the Florida Association of School Administrators and a member of the assessment team that prepared the Duval County School System's current assessment instruments.

   
   

5. During the 1991-1992 school year, which is not directly in issue in this case, Respondent worked at Ed White High School under Mr. Poppell's supervision. During that year, Respondent was an Inside School Suspension Teacher and as such was not responsible for delivering instruction as that term is normally understood. Mr. Poppell gave Respondent a satisfactory evaluation for her performance as an Inside School Suspension Teacher during the 1991-1992 school year.

   
   

6. Prior to the beginning of the 1992-1993 school year, Respondent voluntarily changed assignments in order to avoid being reassigned to another school as part of a staff reduction.

   
   

7. Respondent's duties for the 1992-1993 school year consisted of teaching classes in business education and teaching classes in peer counseling. Respondent was certificated in the area of business instruction and thus qualified on paper to teach those types of classes.

   
   

8. Mr. Poppell observed Respondent in the classroom on 10 to 12 occasions during the 1992-1993 school year. His observations were memorialized in a series of notes which were ultimately reduced to typed form.

   
   

9. At each observation, Mr. Poppell found a number of deficiencies in Petitioner's performance, although the same, precise problems did not occur each time. The most serious problem was always in the area of classroom management and discipline.

   
   

10. Mr. Poppell observed unruly student behavior on virtually every occasion that he visited Respondent's classroom. He observed continual bickering between students. One time, a textbook was thrown across the room.

    
    

11. Mr. Poppell also observed inappropriate and inconsistent instruction by Respondent in that the same lesson was taught on successive days rather than new material being introduced on a progressive basis.

    
    

12. Mr. Poppell observed that significant destruction had been done to School Board property. While he did not always observe all the acts that damaged classroom equipment, he clearly observed that significant damage had been done to typewriters and to chairs as well as graffiti written on desks.

    
    

13. Jane B. Friedlin was the School Board's Supervisor of Business Administration during the 1992-1993 and 1993-1994 school years. Ms. Friedlin has a Bachelor's Degree in Business Education and a Master's Degree in

    Educational Leadership (formerly Administration Supervision). She has taught business education at the high school and business college levels and has written business education textbooks. She has been involved in the business education field the majority of the last 33 years.

    
    

14. At Mr. Poppell's request, Ms. Friedlin observed two of Respondent's classes on November 17, 1992. Her observations from that date were memorialized in a memorandum to Mr. Poppell dated November 18, 1992. Ms. Friedlin observed that Respondent was not in control of her class with all students on task at any time. The students displayed a total lack of respect for Respondent. Instruction was scanty, hard to follow, and in some cases incorrect or incomplete. Several students threw paper, one student made chicken sounds without being reprimanded, and students talked during the entire period.

    
    

15. Mr. Poppell discussed his observations with the Respondent on three separate occasions: October 7, 1992, November 18, 1992 and January 6, 1993.

    
    

16. Despite Mr. Poppell's conferences with Respondent, her performance did not materially improve.

    
    

17. Respondent failed to turn in seating charts to Mr. Poppell in order to determine which students were responsible for the damage, as requested by Mr. Poppell. By memorandum of January 19, 1993, Respondent protested the observation and involvement of Ms. Friedman.

    
    

18. In order to assist Respondent in improving her techniques and performance, Mr. Poppell made arrangements for her to observe peer counseling classes taught by other teachers at Ed White High School and for her to visit similar classes at three other high schools. She did this and also attended an in-service workshop.

    
    

19. On March 15, 1993, Mr. Poppell completed an "Evaluation of Professional Growth of Teacher" for Respondent for the 1992-93 school year. That evaluation showed Respondent to be unsatisfactory in five of the eight competencies rated therein and unsatisfactory overall.

    
    

20. Mr. Poppell had read Ms. Friedlin's memorandum and considered the contents of that memorandum as part of his evaluation of Respondent's performance.

    
    

21. Respondent signed the evaluation and the Classroom Observation Instrument (COI) upon which the evaluation was based.

    
    

22. Pursuant to Section 4(e) (2) of the Duval County Teacher Tenure Act, Respondent transferred to Arlington Middle School for the 1993-1994 school year. She also took a summer course between the school years.

    
    

23. Dr. Jordan E. Baker, Sr. was the Principal of Arlington Middle School during the 1993-1994 school year. Dr. Baker holds a Bachelor of Science Degree, a Master of Education Degree, a Specialist in Education Degree, and a Doctor of Philosophy Degree. He has been employed by the Duval County School Board for a total of 30 years, including three years as a Principal, seven years as a Vice- Principal, and two years as an Assistant Principal.

    
    

24. Pursuant to Section 4(e) (3) of the Duval County Teacher Tenure Act, Dr. Baker met with Respondent in order to develop a plan to afford Respondent the opportunity for specific in-service training to correct the alleged

    deficiencies in her performance. Dr. Baker met with Respondent on August 18, 1993 and August 27, 1993 to develop this plan, which Dr. Baker referred to as a "Success Plan".

    
    

25. During the course of the conferences on August 18, 1993 and August 27, 1993, Dr. Baker observed no recognition on Respondent's part that her teaching performance was deficient or that she was in need of assistance in improving that performance.

    
    

26. Dr. Baker informally observed the Respondent's classes on several occasions between September 24, 1993 and October 18, 1993. Dr. Baker's notes concerning those observations were subsequently reduced to typed form. During those observations, Dr. Baker detected fundamental problems with the Respondent's classroom management. Respondent's classes were not focused on the academic assignments. The students acted in a disruptive manner throughout each of his observations. Dr. Baker also observed that the classroom environment itself was deteriorating in terms of furniture and equipment being destroyed. Dr. Baker became concerned over the safety hazard not only to the students but to the Respondent due to the conduct of students in turning off lights and throwing textbooks and other objects.

    
    

27. Dr. Baker conducted formal observations of Respondent's teaching performance on October 26 and 27, 1993. Those observations were conducted at different times of the day and with different classes of students. Again, Dr. Baker noted major problems with classroom management and with students' disrespect for Respondent. He noted that the students were confused about what was expected of them and did not understand Respondent's directions. Dr. Baker memorialized his observations on these two dates in two Classroom Observation Instruments (COI).

    
    

28. Shortly thereafter, Dr. Baker met for an hour with Respondent to discuss her progress and his observations. Dr. Baker suggested to Respondent that the "Success Plan" be revised to help Respondent be more comfortable with what was expected of her. He suggested that Respondent needed to visit other schools to observe other teachers' performances and that she take workshops. Because Respondent indicated that she had done those things in the past and saw no need to do so again, Dr. Baker neither offered nor arranged further assistance of these types. Again, Dr. Baker observed Respondent's lack of recognition of, and denial of, the existence of the problem.

    
    

29. On November 4, 1993, Dr. Baker was called to the music suite because of a fire which had been set by two of Respondent's students. On that occasion, Respondent was able to provide Dr. Baker with little or no information concerning what happened or who was responsible. Dr. Baker memorialized this occurrence in a written Incident Report and in a narrative.

    
    

30. Further investigation showed that the students were referred to the office by Respondent for discipline. They forged a punishment assignment on the teacher's copy and set fire to the original referral slip outside the window of her classroom in the band room, with resultant smoke and pandemonium in all classes in that area.

    
    

31. As a result of this incident, Dr. Baker became even more concerned about safety. He expressed his concerns in a November 10, 1993 memorandum to Dr. Alvin White, Assistant Superintendent, requesting that Respondent be removed from the classroom for her safety and that of the students assigned to her classes. That request was denied.

32. During the course of the 1993-1994 school year, Dr. Baker received a number of Student Accident Reports and Incident Investigation Forms concerning students being injured by thrown books, fights, and being tripped and injured in Respondent's classroom.

    
    

33. Shirley Rodriquez was Vice Principal of Arlington Middle School during the 1993-1994 school year. Ms. Rodriquez has a Bachelor's Degree in Business Education and a Master's Degree in Educational Leadership. She has been employed by the Duval County School Board for a total of 19 years, three of them as Vice-Principal. She has completed the Duval County School Board Principal Preparation Training Course.

    
    

34. Respondent first came to Ms. Rodriquez's attention due to accident and injury reports and reports of noise, confusion, and lack of safety in Respondent's classroom from surrounding teachers in the band area where Respondent's business education lab was located.

    
    

35. Through an October 18, 1993 memorandum from Chuck McKenny, the Assistant Principal for Community Education, Ms. Rodriquez became aware of problems with the condition of the typewriters and textbooks in Respondent's class. She accompanied Mr. McKenny to Respondent's classroom and found numerous typewriter parts on the floor and in the trash cans. She gathered up the parts and kept them in the school vault. She had not received any reports from the prior year's business education teacher concerning any problem with the typewriters nor any complaints from the Respondent prior to being made aware of this problem by Mr. McKenny.

    
    

36. Ms. Rodriquez observed Respondent's classroom performance on October 21, 1993 for part of a 50 minute classroom period, approximately 33 minutes. She found that Respondent's class was not an atmosphere conducive to learning, that a number of students were talking while the Respondent was talking, and

    that the students were generally off-task. One student was playing with a chair part which he had removed from his chair.

    
    

37. On October 27, 1993, Ms. Rodriquez and Michael S. Kemp were summoned to Respondent's classroom by students in need of assistance.

    
    

38. Michael S. Kemp was one of the Assistant Principals for Student Services at Arlington Middle School during the 1993-1994 school year. Mr. Kemp has a Bachelor's Degree in Business Administration and a Master's Degree in Teaching and Educational Leadership. He is currently enrolled in the Doctoral Program at the University of North Florida. He has worked for the Duval County School Board for six years.

    
    

39. Arriving in Respondent's classroom on October 27, 1993, Ms. Rodriguez and Mr. Kemp observed students running around the room, one student throwing a dictionary across the room, and a couple of students hiding under desks to avoid being hit with books. Respondent was taking no action to stop these activities. After Mr. Kemp and Ms. Rodriquez entered the classroom and Mr. Kemp demanded order, the students settled down in approximately 15 to 20 seconds. Several children complained of having been hit in various portions of their bodies by books and/or pencils that had been thrown. Ms. Rodriguez and Mr. Kemp memorialized this incident in separate memoranda, each dated October 27, 1993.

    
    

40. In response to calls from Dr. Baker, the Principal, and Ms. Rodriquez, the Vice-Principal, Supervisor of Business Education Jane B. Friedlin again

    observed Respondent for a total of one hour and thirty minutes on November 9, 1993. Ms. Friedlin again noted that Respondent did not have control of her class and that she had very poor rapport with her students. Ms. Friedlin also noted misspelled words on posters in the classroom and noted that Respondent mispronounced a number of words and committed grammatical errors. Ms. Friedlin memorialized these observations in a Classroom Observation Instrument (COI) dated November 10, 1993 and in a narrative memorandum of that date.

    
    

41. At formal hearing, Respondent put forth that the posters were purchased at her own expense and were not made by her, but she did not explain any satisfactory reason for allowing them to remain on display without correction.

    
    

42. In Ms. Friedlin's professional opinion offered at formal hearing, the problem areas with Respondent's performance at Arlington Middle School were consistent with those she had observed in Respondent at Ed White High School the prior year but Respondent's overall performance had gotten worse.

    
    

43. During the early part of 1994, Dr. Baker continued to observe Respondent on an informal basis and to discuss her problems with her. Again, he observed that Respondent was in denial concerning the deficiencies in her performance and the necessity to make improvements.

    
    

44. Ms. Rodriguez observed disturbances similar to those of October 27, 1993 in Respondent's classroom on January 7, 1994 and January 11, 1994.

    
    

45. On January 7, 1994, Ms. Rodriguez and Mr. Kemp went to Respondent's classroom in response to a call for assistance. Ms. Rodriguez discovered that one student had switched off the class lights on two occasions. This had triggered episodes of throwing textbooks across the room. At least one student was struck on the head by a textbook. Ms. Rodriguez memorialized this event in writing.

    
    

46. On January 11, 1994, Ms. Rodriquez went to Respondent's classroom in response to a request from a security officer. Ms. Rodriquez found the classroom littered with paper. Respondent indicated that her home-room students had begun throwing paper and this behavior carried on into subsequent classes. Ms. Rodriguez memorialized this event in writing.

    
    

47. On January 11, 1994, Dr. Baker provided Respondent with a letter expressing his continuing concern about her performance and his continuing willingness to work with her in developing another Success Plan and in providing her with assistance, such as the use of District level staff, to improve her performance. Dr. Baker also gave Respondent advance warning that he would be conducting another formal observation of her teaching prior to March 1, 1994.

    
    

48. Ms. Rodriquez again observed Respondent's teaching performance on February 23, 1994, when she spent approximately 47 minutes of one class period in Respondent's classroom. Ms. Rodriguez again observed students talking while Respondent attempted to explain the lesson. Respondent's instructions were unclear. Little or no teacher-directed instruction occurred. Ms. Rodriguez memorialized these observations in a March 3, 1994 Classroom Observation Instrument (COI).

    
    

49. According to Ms. Rodriguez, Respondent's performance as a teacher had deteriorated between her observation on October 21, 1993 and her observation on February 23, 1994, partly because Respondent most recently projected an attitude

    of defeat and was simply trying to get through the day. In Ms. Rodriquez's opinion based upon her education, training, and experience and her observation and contacts with Respondent, Respondent's teaching performance was incompetent.

    
    

50. Bennie Floyd-Peoples was one of the Assistant Principals for Student Services at Arlington Middle School during the 1993-1994 school year. Ms. Peoples has a Bachelor's Degree in Home Economics, a Master's Degree in Home Economics with emphasis on early childhood education, a Master's Degree in teaching, and has taken course work in the area of educational leadership. She is certified in the Florida Performance Measurement System and is a trainer in that program. She has been employed by the Duval County School Board for a total of five years and has served as Assistant Principal for Student Services at Arlington Middle School during the last three years.

    
    

51. Ms. Peoples went to the Respondent's classroom on 15 to 20 occasions during the 1993-1994 school year. On each occasion, Ms. Peoples observed a consistent pattern of classroom disruption, students being disrespectful and defiant to Respondent, students throwing paper, students walking around the classroom idly, and students arguing with each other. Ms. Peoples memorialized her observations in two memoranda to Principal Baker, dated October 14, 1993 and February 17, 1994 respectively.

    
    

52. On February 24, 1994, Dr. Baker informed Respondent in writing that he would be conducting his formal observation on February 25, 1994

    
    

53. On February 25, 1994, Dr. Baker conducted a formal observation of the Respondent's classroom performance. In Dr. Baker's opinion, Respondent's performance continued to be unsatisfactory. While he did notice slight improvement in the area of knowledge of subject matter, he also noted a decline in Respondent's willingness to assume non-instructional responsibilities, such as due care of the equipment entrusted to her. The "Evaluation of Professional Growth of Teacher" which Dr. Baker completed on March 7, 1994 showed Respondent to be unsatisfactory in seven of the eight competencies rated therein and unsatisfactory overall. Respondent refused to sign the evaluation form.

    
    

54. Dr. Baker continued to be concerned about the safety of Respondent and her students. He again expressed these concerns in a March 23, 1994 memorandum to Dr. Alvin White, Assistant Superintendent. Based upon Dr. Baker's recommendation, Respondent was removed from the classroom shortly thereafter.

    
    

55. In Dr. Baker's opinion based upon his education, training, and experience, his personal observations of Respondent's performance, and the information related to him by his staff and others, Respondent was incompetent as a classroom teacher during the 1993-94 school year.

    
    

56. In Dr. Baker's opinion, Respondent was afforded the opportunity of specific in-service training to correct the alleged deficiencies in her performance, but most, if not all offers of assistance, were refused. Dr. Baker's testimony to this effect and the supporting exhibits are accepted over Respondent's protests at formal hearing that she would have accepted more workshops if they were guaranteed to be during school hours and a substitute provided.

    
    

57. Respondent attributed a portion of her problems with classroom management at Arlington Middle School to the students being "a little unusual

    than they had been for the previous years" and as being motivated by "another spirit . . . making them do it".

    
    

58. Respondent also attributed a portion of her problems to physical deficiencies in her classroom at Arlington Middle School. The classroom was physically located between the band and chorus rooms. She testified that the classroom was "very noisy," that the room "sits into something like a hole," that the room had "something like an echo to it," and that the skylights in the room were closed off, which caused "strange things" to happen in the room.

    
    

59. Respondent is a very devout Christian and speaks and writes with considerable religiosity. From the evidence as a whole, it appears that, in secular terms, Respondent felt that her Arlington Middle School classroom was inferior acoustically and had bad lighting, that the students' access to the light switch was uncontrollable, and that her lack of experience with middle school children, especially sixth graders who are more rowdy than the more mature high school students she was used to contributed to the discipline problems she had throughout the 1993-1994 school year. She also attributed student misbehavior to "toe tapping" caused by the music and noted that being an observer and monitor of indoor suspension had not fully prepared her for actually teaching the classes she was assigned at Arlington Middle School.

    
    

60. She also believed sincerely that the damage to equipment occurring in the 1992-1993 school year at Ed White High School occurred during the times other teachers were in charge of the same classroom or occurred overnight when the room was used by others and that the damage to equipment at Arlington Middle School "just happened" because it was old and the students were rowdy.

    
    

61. The overwhelming weight of the evidence is that the equipment damage in both schools could not have occurred at any time other than during Respondent's periods of responsibility.

    
    

62. Despite some rumor of an ancient accidental death which caused the skylight of her classroom at Arlington Middle School to have been boarded up long ago, the room itself had been effectively used by other teachers. These other teachers experienced no unsolvable discipline problems, and they were able to function effectively with the same lighting and acoustics that perturbed Respondent.

    
    

63. The greater weight of the credible evidence is that there was nothing inherently unusual or noisy about Respondent's classroom at Arlington Middle School and that if the band or chorus was heard through the adjoining walls on occasion, it was not loud enough to interfere with effective teaching.

    
    

64. Overall, Respondent's classes represented an accurate cross-section of the students in the school. It may be inferred therefrom that Respondent received students no more predisposed to rowdiness than any others of their age group.

    
    

65. In two of Respondent's classes, she received a new group of students four times a year. In the other three classes, she received a new group of students twice a year. It may be inferred therefrom that on each of these rotations, she had an opportunity to "start over" with a fair cross-section of students, untainted by whatever had gone wrong in her classroom in the previous grading period.

66. The disciplinary problems experienced by Respondent were unique in both nature and degree from those presented by the same students in other classes under other teachers. She was certificated in the areas she was assigned to teach, and she should have been able to handle the classes assigned her.

    
    

67. Respondent also seemed to attribute a portion of her problems to a conspiracy toward her, testifying that "it was a schemer towards me"; that Dr. Baker is her enemy; and that a student named James lied about her and then brought her a number of treats (which she accepted) because "his conscious must have bothered him really bad". Her opinion on these issues is unsupported.

    
    

68. Respondent showed that at Arlington Middle School she had established a work program whereby her students rotated every ten days through other parts of the school to receive "grades" or commentaries on their performances by other instructional and administrative personnel and that most of the comments received were good. This learning experience was an optional part of the curriculum which she devised. It involved such things as students assisting with shelving books in the library or doing minor clerical work in the school office. Although the experience may have been valuable to individual students in giving them exposure to a variety of work tasks, Respondent did not directly observe or grade their work, and this innovation was not shown to promote the required curriculum, particularly the typing curriculum. Respondent's students' good behavior for other school personnel outside her classroom also does not demonstrate Respondent's classroom management skills.

    
    

69. Respondent admitted that some of the incidents testified to by Petitioner's witnesses and memorialized in the documentary evidence did occur, but she minimized them or did not recognize them as dangerous, as disruptive to the educational process, or as her responsibility.

    
    

70. For example, Respondent testified that, "There was cases in my classroom where books was thrown when he cut the light off, but it wasn't that many time. I mean three or four times." Similarly, in discussing an incident where a student named "Waled" had chipped his tooth during a classroom disturbance, Respondent testified "Things like that happen in the classroom." She took no responsibility for students setting a fire outside her classroom window (see Findings of Fact 29-30). She took no responsibility for students lifting her wig off her head in the hallway on the way back from lunch and playing with the wig with resultant noise and disorder. She felt she was not in control of the latter situation and that children just do such things. She expressed herself as unable to control tardiness which disrupted class concentration and as never refusing a child who wanted a hall pass to go to the restroom, no matter how many students wanted to go there simultaneously. These instances of denial are, in themselves, evidence of her incompetence to teach.

    
    

71. Petitioner participated in some of the observations of other teachers established by Mr. Poppell during the 1992-1993 school year, but no meaningful improvement in her performance could be measured. She was transferred to a different school in order to permit her improvement with a "fresh start." (See Findings of Fact 21-22). However, instead of improving, her classroom management deteriorated. Her memorandum to Mr. Poppell dated January 19, 1993 indicating that Jane Friedlin's visit to observe her at Ed White High School "wasn't welcome" (See Finding of Fact 17), her declining Mr. Baker's suggestion that at Arlington Middle School they proceed with Respondent observing other classes and attending workshops again in the 1993-1994 school year, and her comments at formal hearing that she did not acknowledge that there were

    correctable problems with her teaching confirm that further attempts to help her were made but did not improve the situation.

    
    

    CONCLUSIONS OF LAW

    
    

72. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1), F.S..

    
    

73. Petitioner has met the procedural requirements precedent to the bringing of this action as set forth in Sections 4(e)(1) through 4(e)(5) of the Duval County Teacher Tenure Act. The case before the Division of Administrative Hearings has complied with the due process dictates of Section 120.57(1) F.S.

    
    

74. Respondent is charged under Section 4(e) of the Duval County Teacher Tenure Act (Ch. 21197, Laws of Florida, 1941, as amended by Chs. 70-671, 72-576 and 81-372, Laws of Florida). That section provides that causes for the discharge or demotion of a tenured teacher shall include: "(e) Professional incompetency as a teacher..."

    
    

75. Petitioner School Board bears the duty to go forward and the burden of proof to establish the elements of the charged violation by a preponderance of the evidence. See, Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986). Cf.-

    - Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

76. Respondent's failure to create and maintain a classroom environment conducive to learning, allowing nonproductive movement of students in the classroom and a chaotic classroom situation, and failure to maintain proper supervision of students are indicators sufficient to support a finding of teacher incompetency. See, Turlington v. Walker, 9 FALR 2305 (1987); Castor v. Perry, 9 FALR 5291 (1987); Department of Education v. Marshall, 10 FALR 4303 (1987). Similarly, Respondent's inability to control the behavior of disruptive students and to appropriately handle discipline problems is an indicator of incompetency. See, Turlington v. Walker, supra; Department of Education v. Ferrara, 10 FALR 5766 (1987).

    
    

77. During the 1992-1993 and 1993-1994 school years, Respondent was put on notice as to the standards she was required to meet by the evaluation forms used in evaluating her performance. Respondent failed to perform up to those standards.

    
    

78. Respondent was provided with opportunities to improve her performance as a teacher in each school year. In the first year she failed to upgrade her performance in accord with the opportunities she utilized. In the second year, there were offers of assistance, but these were either rejected or not followed- up by Respondent. If anything, her performance deteriorated. She has made no affirmative showing that she can or will improve her performance if given another opportunity or that there is another existing position within the Duval County School System for which she is qualified.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Duval County School Board

discharging Respondent from her employment as a tenured teacher within the Duval

County School System for incompetency.

RECOMMENDED this 31st day of January, 1995, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 31st day of January, 1995.

APPENDIX TO RECOMMENDED ORDER 94-4272

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

With minor fine-tuning and additional material to more closely conform to the competent, credible evidence as a whole, all of Petitioner's 57 proposed findings of fact are accepted.

Respondent's PFOF dated November 21, 1994 (See "Preliminary Statement" for information on another rejected proposal).

The paragraphs are numbered and are described as best the hearing officer

can.

First paragraph: rejected as introductory only.

Indented paragraph: rejected as attempting to change finalized annual

unsatisfactory evaluations to satisfactory. Also, rejected as not supported by the record.

Next indented paragraph: rejected as not a finding of fact but as a request to be reinstated to employment at the highest administrative level now vacant.

Next indented paragraph: rejected as not a finding of fact but as a prayer for money damages not provided for by statute or rule.

Second regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation.

Next indented paragraph: Rejected as not supported by the greater weight of the credible competent evidence.

Next indented paragraph: Rejected as not supported by the greater weight of the credible competent evidence or as a prayer for relief.

Next indented paragraph: Rejected as not supported by the greater weight of the credible competent credible evidence.

Third regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation.

Next indented paragraph: This is Respondent's complaint that she should have been allowed additional in-service workshops during the school day in both years. It is addressed as needed in Findings of Fact 22, 24, 25, 28, 56, and

71.

Next indented paragraph: This is appears to complain of any standardized

oversight of teachers and students by administrators and is rejected as mere opinion contrary to the authority of law.

Next indented paragraph: This is replete with religiosity but is not even a complete sentence. It is rejected as incomprehensible.

Next indented paragraph: Rejected as irrelevant and/or unproven.

Next indented paragraph: This is Respondent's complaint that Dr. Baker was her enemy for reasons never specified. It is covered as needed in Finding of Fact 69.

Fourth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation.

Next indented paragraph: This is Respondent's assertion that her students passed or improved on standardized educational tests. Her assertion was not proven, and is not supported by the record. Therefore, this proposal is rejected. The topic is covered as needed in Finding of Fact 68.

Fifth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation.

Next indented paragraph: This is an accusation of perjury or a religious diatribe. In either case, it is unsupported by the record or by the candor and demeanor of the witnesses and is rejected.

Sixth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation.

The final closing paragraph is conclusory only and rejected.

COPIES FURNISHED:

Gary Eckstine, Esquire 600 City Hall

220 East Bay Street Jacksonville, Florida 32202

Clementine Johnson 3104 West 12th Street

Jacksonville, Florida 32205

Douglas L. "Tim" Jamerson Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Dr. Larry Zenke, Superintendent Duval County School District 1701 Prudential Drive

Jacksonville, Florida 32207-8082

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004272

Orders for Case No: 94-004272